abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ARBITRATION PETITION NO. 399 OF 2007 United India Insurance Company Limited .. Petitioner V/s Ms. Ketna Sharad Muni .. Respondent Mr.Rahul Mehta i/b KMC Legal Venture for the petitioner. Mr.K.R. Khata with Ms.Deepali Thakor i/b Rustomji & Ginwala for the respondent. CORAM : D.G. KARNIK, J. DATE : 24TH APRIL 2008 P.C. P.C. P.C. : 1. Heard the learned counsel for the parties. 2. By this petition under section 34 of the Arbitration and Conciliation Act, 1996 (for short "the Arbitration Act"), the petitioner challenges the award dated 27th July 2007 passed by the sole arbitrator. 3. The respondent took out a mediclaim insurance policy. During the period of the policy, the respondent fell ill and was suffered acute cholecystitis. The respondent was admitted as an indoor patient at Breach - 2 - Candy Hospital on 15th January 2004 where he underwent a laproscopic procedure and was discharged on 20th January 2004. Dr.Shah charged the fees of Rs.1,10,000/- for the laproscopic surgery on the respondent. The total bill for the respondent’s stay in the hospital inclusive of doctor’s fees come to Rs.2,49,809/-. The respondent being covered by the insurance policy, made a claim on the petitioner insurance company for reimbursement of Rs.2,49,809. The petitioner insurance company sent the said claim for verification and processing to a third party consultant, viz. Medsave Healthcare. The third party consultant was satisfied about the illness and treatment, but was of the view that the fees charged by the operating surgeon Dr.Shah to the extent of Rs.1,10,000/- were excessive. In other trust hospitals, opined the third party consultant, the surgeon’s fees for such operation would be Rs.35,000/-. The third party consultant accordingly suggested reduction of the claim to the extent of Rs.75,000/-. The petitioner accordingly settled the claim by reducing the sum of Rs.75,901.20. Though the record is not clear about the reduction of Rs.901.20, it being a small amount, the same is not a matter of dispute before me. 4. After accepting the cheque for Rs.1,73,957/-, the respondent made a claim for the balance sum of Rs.75,901.20. As the petitioner declined to make - 3 - payment, the matter was referred to arbitration. The learned arbitrator by his award dated 27th July 2007 allowed the claim to the extent of Rs.75,901.20 together with interest thereon at the rate of 9% from the date of filing of the claim till payment/realisation. Aggrieved petitioner has challenged the award by this petition under section 34 of the Arbitration Act. 5. Learned counsel for the petitioner submitted that the claim of the respondent for surgeon’s fees was excessive and exorbitant and therefore the petitioner was not bound to pay the said fees in accordance with clause 1.1 of the insurance policy. Clause 1.1 of the insurance policy reads thus:- "NOW THIS POLICY WITNESSES THAT SUBJECT TO THE TERMS, CONDITIONS, EXCLUSIONS AND DEFINITIONS CONTAINED HEREIN OR ENDORSED OR OTHERWISE EXPRESSED HEREON THE COMPANY UNDERTAKES THAT IF DURING THE PERIOD STATED IN THE SCHEDULE OR DURING THE CONTINUANCE OF THIS POLICY BY RENEWAL ANY INSURED PERSON SHALL CONTRACT ANY DISEASE OR SUFFER FROM ANY ILLNESS (HEREINAFTER CALLED DISEASE) OR SUSTAIN ANY BODILY INJURY THROUGH ACCIDENT (HEREINAFTER CALLED INJURY) AND IF SUCH DISEASE OR THE ADVICE OF A DULY QUALIFIED PHYSICIAN/MEDICAL SPECIALIST/ MEDICAL - 4 - PRACTITIONER (HEREINAFTER CALLED MEDICAL PRACTITIONER) OR OF A DULY QUALIFIED SURGEON (HEREINAFTER CALLED SURGEON) TO PAY A HOSPITALISATION EXPENSES FOR MEDICAL SURGICAL TREATMENT AT ANY NURSING HOME/HOSPITAL IN INDIA AS HEREINAFTER DEFINED, THE COMPANY WILL PAY TO THE INSURED PERSON THE AMOUNT OR SUCH EXPENSES AS ARE REASONABLY AND NECESSARILY INCURRED IN RESPECT THEREOF BY OR ON BEHALF OF SUCH INSURED PERSON BUT NOT EXCEEDING THE SUM INSURED IN AGGREGATE IN ANY ONE PERIOD OF INSURANCE STATED IN THE SCHEDULE HEREOF." Learned counsel for the petitioner submitted that the insurance policy provides for reimbursement of the expenses as are reasonably and necessarily incurred in respect of the medical treatment. He submitted that the expenses incurred to the extent of Rs.75,901.20 were unreasonable and therefore the respondent was not entitled to claim the reimbursement. In support, the learned counsel referred to and relied upon a decision of the Supreme Court in Oriental Insurance Co. Ltd. v. Oriental Insurance Co. Ltd. v. Oriental Insurance Co. Ltd. v. Sony Cheriyam- AIR 1999 SC 3252 Sony Cheriyam- AIR 1999 SC 3252 Sony Cheriyam- AIR 1999 SC 3252. In para 15 thereof, which is strongly relied upon by the petitioner, the Supreme Court has held as under: "15. The insurance policy between the insurer - 5 - and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein." There can be no dispute of the principle laid down in Oriental Insurance Co. Ltd. v. Sony Cheriyam (supra) that the insured cannot claim anything more than what is covered by the insurance policy and that the insured is required to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein. 6. It is not the case of the petitioner that the respondent was not ill or that the respondent got herself admitted in a hospital not covered under the insurance policy, or that the laproscopic operation was unnecessary. The only case is that the fees charged by the surgeon were excessive. Learned counsel for the - 6 - petitioner however was unable to point out any clause in the insurance policy or in the schedule attached thereto which puts any restriction on the fees of the surgeon to a certain amount. Usually all insurance policies contain limitations on the maximum amount on fees, medicines, room charges, and give break up of the total amount covered within the overall limit of total amount insured. In the present case, learned counsel is unable to point out any clause either in the insurance policy or in the schedule attached thereto putting any restriction on individual heads or the surgeon’s fees. It is not the case of the petitioner that the surgeon was not paid the fees and the bill was bogus. If the surgeon had charged the fees and there was no restriction on the surgeon’s fees as per the insurance policy, it cannot be said that the expenses were not reasonably incurred by the respondent. 7. No other point was urged by the petitioner. 8. In the circumstances, there is no merit in the petition which is hereby rejected. (D.G. KARNIK, J.)