BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

========

1.  Nitin Verma son of Sh.Ashwani Verma, Aged 30 years, resident of H.No.5486, Sector 38 (West) Chandigarh. (Assignee, Legal Heir and son of Late Mrs.Suman Verma, the deceased insured).

2.  Ashwani Verma s/o Dr.Ram Gopal Verma, Aged 55 years, r/o H.No.5486, Sector 38 (West) Chandigarh. (Husband & Legal Heir of Late Mrs.Suman Verma, the deceased insured).

                               …..Complainants

                 V E R S U S

Bajaj Allianz General Insurance Company Limited, SCO No.139-140, 1^st floor, Sector 8-C, Chandigarh, through its Manager.

                      ……Opposite Party

CORAM:   SH.P.D.GOEL                 PRESIDENT

         SH.RAJINDER SINGH GILL         MEMBER

Argued by: Sh.Parminder Singh, Counsel for the complainants.

            Sh.Paras Money Goyal, Counsel for the OP.

PER P.D.GOEL,PRESIDENT

       Briefly stated, Smt.Suman Verma, wife of complainant No.2, took a Travel Care Policy – Ann. C-1 from OP on 15.4.2011, effective from 22.4.2011 to 20.6.2011. It is averred that the OP did not issue the terms & conditions of the said policy. Unfortunately, she died on 28.4.2011 in USA.  Thereafter, her son complainant No.1 filed a claim with OP Insurance Company for Rs.5,01,414/- along with copy of Demographic Report dated 28.4.2011 (Ann.C-2), Investigation Report, dated 20.5.2011 (Ann. C-3, Report of Final Cause of Death, dated 2.5.2011 (Ann.C-4), Autoposy Protocol Report (Ann.C-5), Passport of the insured with the Custom Clearance of US Authorities & the prescription of Dr.Murlidharan (Ann.C-7). However, the OP illegally repudiated the claim vide letter dated 2.6.2011 (Ann.C-9) on the ground of pre-existing disease. Hence, this complaint.

2]      OP filed the reply, stating therein, that the terms & conditions of the policy were duly sent to the complainant in the normal course.  It is also stated that the deceased was suffering from various ailments. It is further stated that the deceased furnished wrong information in the proposal form to get an insurance cover.  It is submitted that the documents submitted by the complainant reveals that deceased was a chronic patient of asthma, depression and hypothyroidism including obesity. She had not disclosed the true facts to the OP at the time of taking the insurance policy. The claim was rightly repudiated by the OP. Rest of the allegations have been denied with a prayer to dismiss the complaint.

3]      Parties led evidence in support of their contentions.

4]      We have heard the learned Counsel for the parties and have also perused the record.

5]      The ld.Counsel for the complainant submitted that deceased  Suman Verma took a Travel Care Policy (Ann.C-1) from OP Insurance Company on 15.4.2011 effective from 22.4.2011 to 20.6.2011.  It was argued that the OP had not supplied Terms & Conditions of the said policy.  Smt.Suman Verma wife of Complainant NO.2, died on 28.4.2011 in United States of America (USA).  The complainants submitted the copy of Demographic Report, dated 28.4.2011 (Ann.C-2), Investigation Report, dated 20.5.2011 (Ann.C-3), Report of Final Cause of Death, dated 2.5.2011 (Ann.C-4) and Autopsy Protocol Report (Ann.C-5)  to the OP Insurance Company along with Prescription Slip of Dr.Murlidharan (Ann.C-7) and also filed the Claim to the tune of Rs.5,01,414/-.  It was lastly argued that the OP has illegally repudiated the claim vide letter dated 2.6.2011 (Ann.C-9). 

6]      The ld.Counsel for the OP contended that the terms & conditions of the policy were sent to the complainant in the natural course.  It was also argued that deceased Suman Verma was suffering from various ailments.  The deceased took the insurance policy by supplying/ furnishing wrong information in the Proposal Form (Ann.R-2).  The deceased was a chronic patient of asthma, depression, hypothyroidism and obesity. 

        The admitted facts may be noticed thus:-

a)  That the deceased Suman Verma wife of Complainant No.2 was holder of Travel Care Policy (Ann.C-1) effective from 22.4.2011 to 20.6.2011;

b)  That Suman Verma, died on 28.4.2011 in U.S.A.

7]      The claim has been repudiated vide Repudiation letter dated 2.6.2011 (Ann.C-9) on the ground mentioned below:-

“As per the medical documents received from overseas hospital, Mrs.Suman was in agonal respiration as her hand on knee and trying to breath.  She was treated there for the same.

It further mentioned she had past medical history of obesity, asthma, depression and hypothyroidism.

Hence, the present ailment is complication of the pre-existing ailment occurred before policy inception date.  The expenses are attributable to, arising out of, traceable to and a complication of your pre existing ailment which is not payable under policy exclusion clause 2.4 and 2.4.12. (copied below)

2.4 The Company shall be under no liability to make payment hereunder in respect of any Claim directly or indirectly caused by, based on, arising out of or howsoever attributable to any of the following:

2.4.12  Any medical condition or complication arising from it which existed before the commencement of the Policy Period, or for which care, treatment or advice was sought, recommended by or received from a Physician.

As per the history we received, you have past medical history of obesity, asthma, depression and hypothyroidism.  The said history has not been disclosed in proposal form preventing us from making a clear assessment of the risk to be insured and taking a decision on whether an Insurance Cover was to be given and if so, with relevant exclusions.  Thus there is “Non-Disclosure of Material Information”.

In view of the above, we regret to inform you that the claim stands denied as the claim falls under “pre-existing condition” and “Non disclosure of the material information”.

8]      Now the point for consideration is whether the repudiation of claim is legal.  The answer to this is in the negative.

9]      Whether terms & conditions of the Policy (Ann.C-1) were supplied to the policyholder. The answer to this is also in the negative.   

10]     The complainants have specifically alleged in the complaint that the terms & conditions of the policy had not been supplied to the policyholder.  In reply to this, the OP has pleaded that the terms & conditions of the policy were sent to the complainant in the normal course.  But to prove it, the OP has neither produced on record any receipt from the policyholder in token of receipt of terms & conditions of the policy nor any authentic record of the postal department or of courier agency, to prove that the terms & conditions of the policy actually reached to the policy holder or was supplied to her.  Thus, it is held that the OP has failed to prove on record that the terms & conditions of the policy were ever supplied to the policyholder.

11]     Now the next question, which arises for determination is whether without supplying the terms & conditions of the insurance policy, the OP Insurance Company had a legal right to raise the plea that the claim was repudiated in view of Clause 2.4 & 2.4.12 of the Terms & Conditions of the Insurance Policy. 

12]     It has been held by the Hon’ble National Commission in United India Insurance Company Ltd. & Anr. Vs. S.M.S. Tele Communications & Anr., III (2009) CPJ 246 (NC), that unexplained/unnoticed exclusions not binding to insured.  ‘Exclusion Clauses’ required to be ignored if mandatory requirements of explaining Exclusion Clause, not adhered to by insurer/Insurance Company before issuance of Insurance Policy.  Therefore, we are of the opinion that since the terms & conditions of the insurance policy were not communicated/supplied to the policyholder, so the OP Insurance Company cannot raise the plea that the claim has been repudiated in view of Clause No.2.4 & 2.4.12 of the Insurance Policy.

13]     The matter does not rest here.  It is the duty casted upon the OP Insurance Company to show the nexus between the cause of death and alleged pre-existing disease of the insured/policyholder.  In case, the nexus between the cause of death and alleged pre-existing disease is not proved, the wrong answers given in the Proposal Form relating to the State of Health of health of the policyholder are not material/ significant.  In the present case, as the cause of death is “natural” therefore, the fact that the deceased policyholder, had given wrong answers in the Proposal Form relating to her state of heath, are not material/significant.  So, the alleged pre-existing disease, which was not disclosed by the Policyholder, at the time of answering to the questions in the Proposal Form, cannot be termed as suppression of material facts, when her cause of death was “natural”.

14]     Annexure R-2 is the copy of the proposal form wherein the policyholder has replied as under:-

15]     The ld.Counsel for the OP stated that to decide the present case, the column No.C & last para of the  questions, referred to above, is relevant, wherein the policyholder, while replying to the questions “Are you currently or in past have been on any medications? Please mention’ had replied as NA.  The said limb of argument is not available to the ld.Counsel for the OP as it has already been stated that wrong answering given in the proposal form relating to the state of heath of the deceased policyholder are not material/significant as there was no nexus between the cause of death and alleged pre-existing disease. Reliance has been placed on LIC of India & Anr. vs. Bhima Devi, 2012 (1) CLT 169 (H.P.State Commission).

16]     Annexure C-3 is the Investigation Report, wherein at Page No.16, under the heading DESCRIPTION OF INCIDENT, the following has been recorded:-

“On 4-28-11 at 1355 hrs, I received a call from Lt.Sean Duffy of MFD – Med Unit 6 to report the death of Suman Verma, 54-year-old, Eastern Indian female, DOB: 9-10-1956 and resides with her husband, Ashwani Verma, in the country of India.  The location of the incident is at the residence of Nittin Verma, Suman’s son. Nittin’s residence is located at 1570 N.Prospect Ave., #101, Milwaukee, WI 53202.  Ltd. Duffey stated the following information : Suman was using the bathroom at the above stated residence on 4-28-11 at approximately 1301 hrs.  While in the bathroom, Suman called out for help.  When Ashwani rushed to the bathroom, Suman was on her hands her hands an knees trying to breathe. 911 was called at 1301 hrs and MFD-Med Unit 6 & Engine 6 was dispatched to the scene.  Once Med Unit 6 arrived on scene, Suman had agonal respirations and was moved from the bathroom to a near by bedroom to be assessed.  Suman initially had fast narrow PEA rhythm of 74 and ALS measures were performed.  Suman then went into asystole and Paramedic Based Doctor #0014 (Edward Callahan) pronounced Suman at 1329 hrs on 4-28-11. No trauma was noted to Suman and there is nothing suspicious at the scene. “

17]     Annexure C-5 is AUTOPSY PROTOCOL at Page No.19 wherein under the heading, MANNER OF DEATH, it has been mentioned as “Natural”

18]     Now, it is proved on record from the Investigation Report as well as Autopsy Protocol Ann.C-3 & C-5 that Suman Verma, deceased, died in U.S.A., due to heart attack and the cause of death was “Natural”.

19]     Annexure C-7, at Page No.30, is the Prescription of Dr.R.Murlidharan of Fortis Hospital, wherein it has been recorded that Mrs.Suman Verma is allowed to travel to USA for 2 months.  She should be allowed to carry all the medicines to last this period.  The said prescription, further makes it clear that the deceased Suman Verma, was suffering from thyroid.  Since, Suman Verma died natural death, per Autopsy Protocol (Ann.C-5), therefore, it is concluded that there is no nexus between the cause of death and the alleged pre-existing deceased of thyroid etc. 

20]     It has already been stated in the paras (supra) that there is no nexus between the death and the alleged pre-existing deceases, therefore, the OP Insurance Company has illegally repudiation the genuine claim of the complainants, as the cause of death of deceased Suman Verma per Ann.C-5 was “Natural”.

21]     The complainants have placed on record Ann.C-8 to prove that they are entitled to the claim of Rs.5,,01,414/-.  The complainants have detailed the claim under various heads, in Para No.8 of the complaint, which are as under:_

    “i.  $ 8742 (US)  – Funeral Services.

     ii.  $ 959 (US) –   Co Passenger Air Fare (US to IND)

     iii. $ 450 (US)  –   Co Passenger Taxi Fare.

                          (Milwaukee Country to Chikago)

     iv.  $ 508 (US)      Luggage Fare of Deceased                                  belongings.

v.   Rs.11,100/-     Taxi Fare from CHD to Delhi –                             Delhi to Chandigarh.”

22]     The above referred expenses, as alleged by the complainants, have gone unrebutted & uncontroverted from the side of OP.

23]     As a result of the above discussion, we allow this complaint and direct the OP Insurance Company to pay $10659 (US) in the Indian Currency Value, to be calculated on the basis of May, 2011 Rates, to the complainants.  The OP is also directed to pay compensation of Rs.30,000/- along with litigation cost of Rs.15,000/-.

        This order be complied with by the OP within a period of 30 days, failing which they shall be liable to pay the above awarded amount along with interest @12% p.a. from the date of repudiation of the claim i.e. 2.6.2011 (Ann.C-9) till its actual payment, besides paying litigation costs.

        Certified copies of this order be sent to the parties free of charge.  The file be consigned.