Haryana

Yamunanagar

CC/282/2014

Asha Kumari Kapur W/o Vijay Kumar Kapur - Complainant(s)

Versus

Aryan Worldwide Holidays - Opp.Party(s)

Ritesh Goel

25 Oct 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR.

 

                                                     Complaint No.282 of 2014.

                                                     Date of institution: 01.07.2014.

                                                     Date of decision: 25.10.2017.

Asha Kumari Kapur, age 68 years, wife of Shri Vijay Kumar Kapur, resident of H.No.116-A, Model Town, Yamunanagar.

                                                                       

                                                                                                …Complainant.

                        Versus

1. Aryan Worldwide Holidays, S.C.O.3, 124-R, Model Town, Yamunanagar.
2. Travel Tag Assist/Karvat Travel Services Pvt. Ltd., Madhu, Industrial Estate, P.B. Marg, Worli, Mumbai-400013.
3. National Insurance Company Ltd., Mumbai Corporate Regional Office, Royal Insurance Building, 2nd floor Jamshed Ji Tata Road, Church Gate, Mumbai-2.  

 

….Respondents.

BEFORE     SH. SATPAL, PRESIDENT

                SH. S.C.SHARMA, MEMBER.

                SMT.VEENA RANI SHEOKAND, MEMBER.

 

Present:     Sh. Ritesh Goel, Advocate, for complainant.   

                Sh. Adesh Gupta, Advocate for the OP.No.1.

                Op No.2 already exparte.

                Sh. Karnesh Sharma, Adv. for Op No.3. 

               

                ORDER

         

(SATPAL, PRESIDENT)

1.                The complainant-Smt. Asha Kumari has filed this complaint under section 12 of the Consumer Protection Act 1986, as amended up to date (hereinafter respondents will be referred as OPs). 

2.             Brief facts of the complaint, as alleged by the complainant, are that on 25.09.2013, she purchased one air ticket from Delhi to Torronto (Canada) for 03.10.2013 return ticket for 09.12.2013 from the Op No.2 through their agent-Op No.1 and on the same day i.e. on 25.09.2013, the complainant got an overseas Medi-claim Policy for the period of her stay in Canada which was effective from 03.10.2013 to 09.12.2013 for a sum of USD 50,0000 $.  The one time premium of Rs.7507/- was also paid by the complainant to the Ops.  It is alleged that the complainant had been duly examined by the doctors of the Ops and finding her medically fit, the overseas medi-claim policy bearing No.251100/48/13/05/0000001 was issued.  It is further alleged that during her stay in Canada on 6/7.10.2013 unfortunately, the complainant fell ill and she was admitted in the hospital William Osler Health Systemand where she was medically examined diagnosed thoroughly.  It is further alleged that the medical record is Annexure-C6 to Annexure-C10 and the bill of 740$ is Annexure-C11.  It is further alleged that the complainant got discharged from the hospital on the same day but she continued with the medicines as per prescription of the doctor and the bills of medicines total amounting of 50$ are Annexure C12 & Annexure-C13.  It is further alleged that the complainant lodged the claim with the Op No.3 for a sum of 890$ but the Op No.3 repudiated the claim of complainant vide letter dt. 06.05.2014 on the ground of pre-existing disease.  So, it is a clear cut case of deficiency in service on the part of Ops and prayed for acceptance of complaint with the direction to the Ops to pay the claim of complainant without any delay and further to pay Rs.2,00,000/- as compensation for harassment and mental agony as-well-as Rs.11,000/- as litigation charges.  Hence, this complaint.

3.            Upon notice, the OPs No.1 & 3 appeared, whereas Op No.2 did not appear and was proceeded against exparte vide order dt. 21.08.2014.  Ops No.1 & 3 filed their written statements separately.  Op No.1 filed their written statement raising preliminary objections with regard to locus-standi; maintainability; cause of action; that the answering Op is simply an authorized agent with Karavat Travel Services Pvt. Ltd. (OP No.2) and the insurance policy was of National Insurance Company Ltd. and that was issued by Op No.2 and being an agent of the company, policy was issued from their office; that the claim of complainant was not paid because the said claim is related to the treatment of Hypertension emergency and from hospital documents, it is evident that the complainant had past history of Hypertension, Dyslipidemia and Hypothyroid and she was already on Anti-Hypertensive, treatment hence, the said claim was medically not admissible, as per the policy of the Insurance Company; that a false, fabricated and fraudulent complaint has been filed with a view to defraud the answering Op.  Moreover, no relief has been claimed by the complainant against the answering Op and as per terms & conditions of the policy, if any dispute regarding the quantum to be paid, that will be paid by the insurance company and not by answering Op; that there is no deficiency in service on the part of answering Op.  On merits, the pleas taken in the preliminary objections are reiterated and so, prayed for dismissal of complaint.

4.             Op No.3 filed the written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the complainant has concealed the true and material facts from this Forum.  The claim of complainant was not paid because the said claim is related to the treatment of Hypertension emergency and from hospital documents, it is evident that the complainant had past history of Hypertension treatment. Dyslipidemia and Hypothyroid and she was already on Anti-Hypertensive, hence, the said claim was medically not admissible; that there is no deficiency in service on the part of Op.  On merits, the pleas taken in the preliminary objections are reiterated and so, prayed for dismissal of complaint

5.             Ld. Counsel for the complainant tendered in evidence affidavit of complainant as Annexure-CW/A and documents Annexure-C1 to Annexure-C14 and closed evidence on behalf of complainant. 

6.             On the other hand, ld. Counsel for the Op No.1 tendered in evidence affidavit of Sh. Sumit Sadhwani as Annexure-R1/A and closed evidence on behalf of Op No.1. Ld. Counsel for the Op No.3 tendered in evidence affidavits of Sh. Parveen Arora, Administrative Officer & Dr. Avinash Y. Pawar as Annexure R/3A and Annexure R3/B respectively alongwith documents Annexure R3/1 to R3/11 and closed evidence on behalf of Op No.3.      

7.             We have heard the ld. Counsel for both the parties and perused the record carefully and minutely.

8.             After hearing ld. Counsel for both the parties and on perusal of record available on the file, the foremost question which arises before us for consideration is whether the complainant was suffering from pre-existing disease prior to taking the overseas policy or not?

                The version of the complainant is that on 25.09.2013, she purchased one air ticket from Delhi to Torronto (Canada) for 03.10.2013 and return ticket for 09.12.2013 from the Op No.2 through their agent-Op No.1 and on the same day i.e. on 25.09.2013, the complainant got an overseas Medi-claim Policy for the period of her stay in Canada which was effective from 03.10.2013 to 09.12.2013 for a sum of USD 50,0000 $ and the one time premium of Rs.7507/- was also paid by the complainant to the Ops.  During her stay in Canada on 6/7.10.2013 unfortunately, the complainant fell ill and she was admitted in the hospital William Osler Health Systemand where she was medically examined/diagnosed thoroughly.  The complainant lodged the claim with the Op No.3 for a sum of 890$ but the Op No.3 repudiated the claim of complainant vide letter dt. 06.05.2014 on the ground of pre-existing disease.  The complainant submitted case law reported in 2016(1) CPJ page 613 (NC) titled as Satish Chander Madan Vs. M/s. Bajaj Allianz General Insurance Co. Ltd. wherein it has been held that “Insurance Policy-Bypass surgery-Claim for insurance-Repudiation of claim-Grounds of concealment of pre-existing disease-Alleged deficiency in service-Complaint filed-Allowed by District Forum-State Commission allowed appeal-hence, revision petition before National Commission-Fact that, petitioner prior to obtaining insurance policy was having history of hypertension-Hypertension is a common ailment and it can be controlled by medication and it is not necessary that person suffering from hypertension would always suffer a heart attack-Treatment for heart problem cannot be termed as claim in respect of pre-existing disease-Claim was wrongly repudiated-Finding of the State Commission regarding suppressing of material fact is based upon surmises and conjectures and it cannot be sustained-Revision petition allowed.”   In the other case law submitted by the complainant reported in 2006(3) CLT page 92 (Delhi State Commission) tilted as National Insurance Co. Ltd. Vs. Mukesh Bhargava, it has been held that “Medical claim policy-Suppression of pre-existing disease-Unless the patient or insured is hospitalized or undergoes an operation for some particular disease but otherwise leads a normal and healthy life is not supposed to disclose the factum of normal and day-to-day minor problem of life.”  Similarly, the complainant also submitted case law reported in 2015(2) CPR page 511 (NC) titled as Amitava Dutta Vs. National Insurance Company Ltd. & others; 2015(3) CPR page 750 (NC) titled as Padmavathy Venkatesh Vs. Oriental Insurance Co. Ltd. and 2006(2) CLT page 505 (Delhi State Commission) titled as National Insurance Co. Ltd. Vs. Surinder Mohan Kairam and in the said authorities, the similar question of law and facts are involved.    

                On the other hand, the plea of the Op No.1 is that the Op No.1 is simply an authorized agent with Karavat Travel Services Pvt. Ltd. (OP No.2) and the insurance policy was of National Insurance Company Ltd. and that was issued by Op No.2.  The Op No.1 submitted case law reported in 2016(3) ACJ page 516 (SC) titled as Virender Khullar Vs. American Consolidation Services Ltd. & Others, wherein it has been held by Hon’ble Supreme Court that ”Liability of agent-Where the respondent No.1 was simply an agent of buyer with whom the appellants had entered into contract and is not a consignee but only an agent of intermediate consignee, he cannot be held personally liable to enforce the contract between its principal and appellants.”

                  The plea of Op No.3 is that the complainant had past history of Hypertension, Dyslipidemia and Hypothyroid and was already on Anti-Hypertensive which was confirmed by the expert doctor, hence, the said claim was medically not admissible.  The Op No.3 submitted case law reported in 2017(1) CPJ page 161 (NC) titled as Chand Ratan Lahoti & others Vs. Aviva Life Insurance Co. India Ltd. & another, wherein it has been held by Hon’ble National Commission that ”Suppression of pre-existing disease-Claim repudiated-Deficiency in service-State Commission dismissed complaint-Hence appeal-It is clear from MRI report dated 28.06.2011 that brain tumour laws detected-Insurance contract came into being on 08.07.2011-Insured failed to inform Insurance Company about health condition-This is clear case of concealment of material fact-Repudiation justified.”  Similarly, the Op No.3 has also submitted case law reported in 2017(1) CPJ page 646 (NC) titled as Savneet Singh Sobti Vs. Aviva Life Insurance Co. India Pvt. Ltd. & others and in the said authority, similar question of law and facts are involved.

9.             It is an admitted fact that the complainant was insured with the Op No.3.  The objection of Op No.3-insurance company is that before taking the policy in question, the complainant was having pre-existing disease of hypertension and she was taking medicines and as per expert opinion of Dr. Avinash Y. Pawar (Annexure R-3/5), the complainant had past history of Hypertension, Dyslipidemia and Hypothyroid and she was already Anti-Hypertensive treatment and taking tablet Arbital.  We have perused the document Annexure R-3/5 which is opinion given by expert doctor, wherein the expert doctor clearly mentioned that the complainant was treated for hypertension emergency and her admission notes dt. 18.10.2013 mentions Hypertension, Dyslipidemia and Hypothyroid and she was on tablet Arbital, which is a brand of Telmisartan from Cipla Pharma Ltd. used for treatment of hypertension.  In the said report, the expert doctor did not mention that for how long period, the complainant was taking the aforesaid medicine of hypertension.  It is also an admitted fact that the complainant went to Toronto (Canada) on 03.10.2013 and she firstly had a problem of hypertension on 6/7.10.2013 and thereafter, she contacted the doctor on 07.10.2013.   We have perused the document Annexure C-2, which is prescription slip dt. 07.10.2013 wherein the doctor prescribed two tablets (Telmisartan 40 mg) OD but when after taking the aforesaid medicine, the complainant did not feel well, then she approached the other doctor on 18.07.2013 (as per Annexure C-4) and the said doctor referred her to higher Institute for treatment.  We have also perused the document Annexure C-6 which is a treatment summary of  Hospital William Osler Health System, where the complainant remained admitted on 18.10.2013, wherein in the past history, it is clearly mentioned that the complainant was taking medicines/tablet Arbital-Telmisartan-Cipla.  Meaning thereby that the complainant before admission in the said hospital was on medicine/tablet Arbital-Telmisartar for hypertension.  But in the aforesaid history, the treating doctor of William Osler Health System did not mention anywhere that for how long period the complainant was taking the aforesaid tablet.  From the perusal of document Annexure C-2, which is prescription slip dt. 07.10.2013, it is clear that the doctor advised two tablet (Telmisartan 40 mg) OD to the complainant.  It means that when the complainant was admitted in the hospital of William Osler Health System on 18.10.2013, she disclosed in the history that she was taking tablet, Telmisartal 40 mg, meaning thereby the complainant was taking the aforesaid tablet from 07.10.2013 and not prior to 07.10.2013.  It means that when the complainant had purchased the policy in question, she had no disease of hypertension.  This, however, does not lead to conclusion that the complainant was having previous history of hypertension.  In such type of cases where the patient suffers sudden hypertension without any past history of having suffered any disease, being hospitalized or operated upon, he/she is neither supposed nor expected to know the medical terminology of the disease like problem of hypertension.  It is known fact that many times, the healthy person are unaware of such silent ailments of diabetes and hyper tension, which come to their knowledge first time during health check-up camps or in any emergent situation.  Thus, the Op-insurance company cannot apply a hard and fast rule to presume that the life assured was suffering from the aforesaid disease for long duration i.e. before taking the policy.  Besides this, the Op-insurance company has not placed on record any affidavit of the expert doctor upon whose opinion they have relied upon or any other doctor from whom the complainant had obtained the treatment about the alleged disease of hypertension or the record of such hospital from where the complainant obtained the treatment for the alleged pre-existing disease.  The Ops have not placed any such document/papers on record and thus, have failed to prove their version about the alleged pre-existing disease.  So, the plea taken by the Op-insurance company that the complainant had pre-existing disease is not tenable.  In the present case, the Ops No.1 & 2 are the agents of Op No.3-insurance company and they cannot be held personally liable for any claim.  So, there is deficiency in service on the part of the Op No.3-insurance company only.  

10.            Thus, as a sequel of above discussion, we allow the complaint of the complainant and direct the Op No.3-insurance company to pay a sum equivalent to USD 840 (as shown in Annexure C3, C5 & C11) in rupees alongwith interest @ 6% p.a. from the date of filing of this complaint till its realization and further to pay Rs.5,000/- as compensation for harassment and mental agony.  The Op No.3 is also directed to pay Rs.3300/- as litigation charges.  It is clarified that the bills dt. 19.10.2013 & 24.10.2013 which are Annexures C12 & C13, amounting to Rs.14.39 $ + 33.24 $ are hereby ignored because the same do not bear the name of any person including the complainant.  A Copy of said order be supplied to the parties free of cost.  File be consigned to record-room after due compliance.      

Announced in open court:

Dated: 25.10.2017.

                                                          (SATPAL)

                                                           PRESIDENT.

 

 

(VEENA RANI SHEOKAND)         (S.C.SHARMA)

MEMBER                                             MEMBER