2 Notice of this complaint was sent to the opposite parties and opposite parties appeared through counsel and filed written version by taking preliminary objections that the complainant has concealed the material facts from this Commission and has not come to this commission with clean hands, therefore she is not entitled for any claim. There is no deficiency in service or unfair trade practice on the part of the insurance company to invoke the jurisdiction of this commission. Insurance policy is a contract and both the parties are under obligation to obey/ fulfill all the terms and conditions of the same in the strict sense of the words written therein. As the terms and conditions of the policy are sacrosanct, the claim arrived is also processed within the precincts of the policy only. The complainant has filed frivolous complaint against his insurance company by making false claim and in order to extract illegal money which he does not deserve. This insurance company is governed by IRDAI Regulations, Rules and Procedure prescribed thereon and strictly following the guidelines issued by the authorities. No individual can take independent decisions and the same are taken based on documentary evidence, statements and investigation report etc. Apart from this, the company also taken advise from the professional for adjusting the claims of its customers. The claims are thoroughly checked/ verified by the professionals of Bajaj Allianz General Insurance Company. The opposite party says and submits that the complainant i.e. insured Balwinder Kaur has availed the Travel age elite silver policy bearing No. OG-20-1210-9910-00000370 which was valid from 6.5.2019 to 3.8.2019 and the said policy is subjected to its terms, conditions and exclusions thereof. On receiving claim intimation on 12.6.2019 of the hospitalization of the complainant on10.6.2019, the opposite party has registered claim of the complainant vide claim registration No.OC-20-1002-9910-00001106. On scrutiny of the claim documents, it was observed that as per medical record of the insured, certificate of doctor dated 22.6.2019 and as per admission of the complainant herself, she had undergone total knee replacement of both knees in March 2016 and the said facts have not been disclosed by the complainant at the time of getting policy issued from the opposite parties, as such, there is suppression of material facts which is a clear violation of the principles of insurance i.e. Utmost good faith and it is also against the policy terms and conditions, hence, the complainant is not entitled for any claim, therefore, the claim of the complainant was repudiated vide letter dated 29.6.2019. At the time of filling of the proposal form, complainant clearly mentioned the proposal form that she had not undergone any treatment before issuing this policy, relevant partition of proposal form is mentioned below:-
a. Are you suffering or have you over suffered any illness/ diseases/ ailment up to the date of making this proposal or suffer from any physical defect or deformity ? Please give detail-No
b. Have you been admitted to any hospital/ Nursing home/ clinic for treatment or observation ? please give detail- No
c. Are you currently or in past have been any medication ? Please give detail- No
d. Have you ever claimed under your earlier travel policy ? If yes, Please give details Under the Section Claimed- No.
e. Please mention the name, address, telephone number, of your family doctor and / or specialist-No
The complainant has suffered osteoarthritis and underwent bilateral total knee joint replacement in March 2016 which is pre-existing to the policy and has not been disclosed in proposal form and now the complainant was known to be suffering from right knee pre prosthetic joint injection with loosening of prosthesis. Current ailment is known complication and consequence of the medical condition bilateral total knee joint replacement done in March 2016. Our Policy does not extend coverage for pre-existing ailment and its complications as per below exclusion clause available to Section A & B as under:-
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.
There was evidence of material suppression by non-disclosure of material facts i.e. pre-existing ailment which in itself violation of principle of insurance as well as terms and conditions of the insurance policy and declaration made thereof before the insurance of policy.
Declaration by insured:
We understand that this policy has been issued based on the information provided to us/ our representative and the policy is not valid if any of the information provided is incorrect. We also understand that this policy does not cover any pre-existing medical condition/ injury/ illness/ deformity/ and complication arising from them that are declared or undeclared. Insurance is a contract between two parties and both the parties are under the obligation to obey/ fulfill the terms and conditions and coverage of the policy in the strict sense of the words written therein. Insurance is a matter of solicitation which is further a contract of Uberrima fides as terms and conditions of the policy are sacrosanct, the claim arrived is also processed within the precincts of the policy itself, as such, there suppression of material facts which is clear violation of the principles of insurance and it is also against the policy terms and conditions, hence, the complainant is not entitled for any claim. The complainant is estopped by her own act and conduct from filing the present complaint, as the complaint has been filed without any cause of action. On account of the above mentioned facts/ conduct of the policy, the insurance company is not liable to pay any claim to the complainant and same is rightly repudiated vide letter dated 29.6.2019. On merits, it was pleaded that it is the duty of insured to disclose each and every facts of her previous disease, ailment and treatment taken at the time of getting her previous disease, ailment and treatment taken at the time of getting herself insured from the opposite parties. The complainant has intentionally concealed the fact regarding her pre-existing ailment i.e. TKR total knee replacement with an intention to get undue benefit from the opposite parties. As per medical record of the insured provided to the opposite parties and as per admission of the complainant herself, she had undergone total knee replacement of both knees in March 2016 and the said facts has not been disclosed by the complainant at the time of getting policy issued from the opposite parties, as such there is suppression of material facts which is a clear violation of the principles of insurance and it is also against the policy terms and conditions, hence, the claim of the complainant was repudiated vide letter dated 29.6.2019. The complainant had got done her total knee replacement from Life Care Hospital, Amritsar in the year 2016, but she had not disclosed this facts at the time of getting policy from the opposite parties and this fact has been admitted by her in the present complaint, therefore, she is not entitled for any claim. So far as indemnifying the claim to the insured is concerned, that is subject to terms and conditions of the policy. In this case, the claim of the complainant has been rightly repudiated on the ground of non-disclosure of medical facts regarding previous ailment taken by the complainant. The policy and its terms conditions have admittedly received by the complainant and both the parties are bound with the terms and conditions of the policy and it is the duty of the complainant to disclose her previous diseases and ailments on the basis of which the present policy has been issued. The complainant has intentionally concealed the material facts at the time of getting policy, therefore, she has violated the terms and conditions of the policy, therefore, not entitled for any claim. The claim of the complainant has been rightly repudiated. The complainant herself negligent as she intentionally did not disclose the fact regarding her previous ailment, therefore she is not entitled for claim. The opposite parties have denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite parties have placed on record affidavit of Jai Singh Senior Executive Claims Legal Ex. OPs1,2,3/1, evidence by way of affidavit Ex. OPs1,2,3/A/1, Self attested copy of power of attorney/ authority letter Ex. OPs1,2,3/2, self attested copy of policy is Ex. OPs1,2,3/3, self attested copy of terms and conditions Ex. OPs1,2,3/4, Self attested copy of proposal form is Ex. OPs1,2,3/5, self attested copy of reply of notice Ex. OPs1,2,3/6, self attested copy of repudiation letter Ex. OPs1,2,3/7, self attested copy of all medical records Ex. OPs1,2,3/8, Self attested copy of certificate of doctor Ex. OPs1,2,3/9.
3 We have heard the Ld. counsel for parties and have also carefully gone through the documents on the file.
4 From the combined and harmonious reading of pleading and documents are going to show that the complainant has purchased one insurance policy travelageelita silver (US$50,000/-) schedule from the opposite party No. 2 bearing policy No.OG-20-1210-9910-00000370 in the name of Mrs Balwinder Kaur and said policy was issued on 30.4.2019 and said policy period was from 6.5.2019 to 3.8.2019. The complainant has paid a sum of gross premium amount in cash to the tune of Rs. 6,989/-. Similar policy was purchased on the same terms and conditions by the husband of the complainant. The complainant contended in her complaint that the employee of the opposite party No. 2 got her signatures on certain documents and thereafter the policy was issued to her. After lapse of 10-12 days the complainant received the policy cover note only. The opposite parties before the inspection of policy has not asked about the previous fracture, replacement, any sort of temporary inquiry which has been cured but the said agent only enquired about any present serious ongoing chronic disease like diabetes, cancer, heart problems. Thereafter the agent only got the relevant papers signed from the complainant and her husband. Thereafter, obtaining the insurance policy, the complainant went abroad to meet her son Dilsher Singh and stayed with him for one month and since the said period of one month Mrs. Balwinder Kaur was having no problem of any pain or fever. But suddenly, after passing of one month time of her stay in New Zealand with her son she got sudden fever and swelling in her right knee. Therefore she was taken to Counties Manukau Health at Middle More Hospital on 10.6.2019 where she was diagnosed by orthopedic team. After that the doctor of the said hospital diagnosed infection in the right knee of complainant and doctors have removed the replaced right knee joint at first stage revision for infection and also recommended a second stage replacement revision for her right knee after arrival in India. After treatment, the son of the complainant i.e. Dilsher Singh being nominee sent regular e-mails to the opposite party to settle the claim. All the necessary documents were sent by Dilsher Singh to opposite party company and opposite party company assured that the claim of Mrs Balwinder Kaur will be settled shortly. But on 2.7.2019 the company repudiated the claim of the complainant i.e. Mrs Balwinder Kaur and in this regard a mail was sent to Dilsher Singh being nominee of Balwinder Kaur. The opposite party has repudiated the claim on the ground of pre-existing disease vide letter Ex. OP1,2,3/7. The opposite parties relied upon the certificate dated 22.5.2019 Ex. OP1, 2, 3/9 issued by Doctor Sartaj Sandhu of Life Care Hospital Amritsar in which the doctor has given certificate that “This is to certify that Balwinder Kaur wife of Parshotam Singh was admitted in our hospital on 15.3.2016 c assist severe O/A B/L knee c flexion/ deformity. On 16.3.2016 B/C TKA done” But this certificate only shows that total replacement of knee was done. But to prove this certificate no affidavit of concerned doctor has been placed on record. Moreover the opposite party has repudiated the claim solely on the basis of certificate issued by Doctor. The opposite party has failed to prove that the treatment of infection which was taken by the complainant in New Zealand was outcome of this operation of knee replacement. The opposite parties have failed to prove nexus between total knee replacement and treatment which was taken by the complainant in New Zealand. The opposite parties have not placed on record any expert opinion of any doctor which indicates that the problem which was persisted in New Zealand i.e. right knee peri prosthetic joint infection with losing of prosthesis is due to knee replacement surgery. As per the opposite parties, the current ailment is known complication and consequence of medical condition bilateral total knee joint replacement done in March 2016 but to this effect the opposite parties have not placed on record any expert opinion as well as no doctor brought to the witness box to prove that right knee peri prosthetic joint infection with losing of prosthesis is a complication and consequence of knee joint replacement. Joint infection can occur to any normal person. Opposite party has miserably failed to prove that joint injection is only due to knee replacement surgery. As such, the plea which was taken by the opposite party that the pre existing disease does not sustain. Secondly, the opposite parties have raised contention that it was the duty of the complainant to disclose the pre-existing disease if any. But after the age of 45 years it is mandatory for the opposite parties to conduct a medical examination of the insured before issuing the policy. In this regard the complainant has relied upon the Judgment titled “Life Insurance Corporation of India Vs Ambika Prasad Pandey, AIR 1999 M.P 13 and Life Insurance Corporation of India Vs Narmada Agarwalla, AIR 1993 Ori 103”, it has been held that “there was no bar on the opposite party to get the thorough medical checkup at the time of issuance of the policy. The opposite party was within their right to cancel the policy if it doubted or found any information supplied by the life assured being false or wrong, but this has not been done by the opposite party. The investigation has been got done at the time when the claim was lodged by the complainant. It was for the opposite party to ensure about the health of the insured before issuance of the policy of such amount. Many times a person may not know himself/ herself if he/ she is suffering from any particular disease. Moreover, prior to issuance of the policy, it was required to check up life assured thoroughly. It was the bounden duty of the opposite party to make thorough investigation at the initial stage. It appears that the opposite party has different yard stick at the time of accepting the policy for procuring the business and different face at the time of discharge of its lawful liability. This is a common practice of the Insurance companies to repudiate the claim on flimsy grounds without any justification. In this case, the opposite party has failed to follow the norms laid down by IRDA and has failed to conduct the medical examination of complainant. As such, at this stage they cannot take benefit of raising the plea of preexisting disease. The complainant has categorically stated that she has received only cover note. Meaning thereby that no terms and conditions were ever supplied to the complainant by the opposite parties. it is the duty of the opposite party to prove that terms and conditions were supplied to the complainant. In the present complaint, the opposite parties have not placed on record any document which proves that terms and conditions were supplied to the complainant. Reliance has been placed on Oriental Insurance Company Vs Satpal Singh & Others 2014(2) CPJ Page 374 National Consumer Disputes Redressal Commission held that we are of considered view that onus of proof lies upon OP Nos. 1 to 3 to prove that policy, along with terms and conditions, was supplied to the complainant. OPs had not produced any cogent evidence in this regard. The counsel for the petitioner drew our attention to the relevant portion of the cover note…..
It further held in this case “act of petitioner, is arbitrary and is deficiency in service. It amount to unfair trade practice”
The complainant stated in her complaint that the agent of opposite parties only asked the general questions about the health and got the signatures on some documents and thereafter the opposite parties issued the said policy in her name without explaining terms and conditions. The opposite party has not placed on record the affidavit of the agent to the extent that he had explained all the terms and conditions to the complainant before the inception of the said policy. The terms and conditions were not explained to the complainant by the opposite parties and reliance has been placed on 2001(1) CPR 93(Supreme Court) 242 titled as M/s Modern Insulators Ltd. Vs The Oriental Insurance Company Ltd. wherein Hon’ble Apex Court has held that clauses which are not explained to complainant are not binding upon the insured and are required to be ignored. Furthermore, It is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of DharmendraGoel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.UshaYadav& Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
5 In foregoing discussion we are of the opinion that opposite parties have miserably failed to prove that the treatment which was taken by the complainant in New Zealand is solely because of total knee replacement in India on dated 22.6.2019. Further the opposite parties have failed to explain the nexus between the current treatment and pre-existing disease. In other words the preexisting disease was clearly unrelated to the treatment of Joint infection which was taken by the complainant in abroad. By repudiating the claim of the complainant on false ground, it amounts to deficiency in service and unfair trade practice on the part of the opposite parties.
6 In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainant. The Opposite Parties are directed to make the insurance claim prayed for in the complaint to the complainant. The complainant has been harassed by the opposite parties unnecessarily for a long time. The complainant is also entitled to Rs.30,000/- ( Rs. Thirty Thousand only) as compensation on account of harassment and mental agony and Rs 15,000/- ( Rs. Fifteen Thousand only) as litigation expenses. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission.
17.08.2022
