Date of filing: 05.02.2019
Date of disposal : 25.01.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.J.JAYASHANKAR B.A., B.L., ..... MEMBER-I
RBT/CC. No.56/2022
THIS WEDNESDAY, THE 25th DAY OF JANUARY 2023
(CC.No.35/2019 sent from DCDRC, Chennai North)
Mrs.S.Meera, W/o.V.Sankran,
S2, 2nd Floor, Thillai Homes,
Parasuram Nagar Cross Street,
Pallikaranai, Chennai 600 100. .........Complainant.
//Vs//
1.Bajaj Allianz General Insurance Company,
Rep. by its Manager,
Old No.276m 277m New No.497, 498,
5th Floor, Isana Kattima Building,
Poonamallee High Road,
Arumbakkam, Chennai 600 106.
2.Bajaj Allianz General Insurance Company
Rep. by its Manager,
Bajaj Finserv Building,
A Wing, 2nd floor, Survery No.20/B-1,
Behind Weikfield IT Park,
Off Nagar Road, Pune 491 014, Maharashtra. ...Opposite parties
Counsel for the complainant : M/s.V.Kathikeyan, Advocate.
Counsel for the opposite parties : M.B.Gopalan & Associates.
This complaint has been filed before DCDRC, Chennai (North) as CC.No.35/2019 and transferred to this commission by the order of the Hon’ble State Consumer Disputes Redressal Commission, Chennai and taken on file as CC.No.56/2022 and this complaint coming before us on various dates and finally on 25.12.2022 in the presence of M/s.V.Karthikeyan, Advocate counsel for the complainant and M.B.Gopalan & Associates counsel for the opposite parties and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY THIRU.J.JAYASHANKAR, MEMBER - I
This complaint is filed U/S 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Parties with respect to the Medical claim Insurance availed by the Complainant along with a prayer to pay a sum of Rs.2,50,000/- being the expenses incurred by the Complainant towards her Medical treatment during her stay in Australia along with interest @24% per annum from the date of occurrence Medical treatment to till date of realization and Rs.1,00,000/- towards mental agony and Rs.50,000/- towards legal expenses.
Summary of facts culminating into complaint:-
The case of the Complainant was that she had availed travel Insurance policy from the 1st Opposite Parties vide OG-18-1501-9910-00011315 & customer ID 110836170 on a visit to Australia as per the terms and condition stipulated for the travel to the said counter. When the Complainant was in Australia on 10.02.2018 there was sudden bleeding and she on consultation with the Doctors in Australia, who has diagnosed that she was having piles/haemorrhoids and on the advice the Doctor in Australia she had to undergo surgery on 09.04.2018, thereby spent Medical expenses to the tune of 200 Australia Dollars and also towards surgery she was forced to pay 4064.55 Australia Dollars. In view of the same while she was under treatment, she had submitted all the details to avail cash less treatment from the 1st Opposite Party. Even though 1st Opposite Party have received the same, but since 1st Opposite Party have deliberately delayed to make any payment, at last she had underwent the operation on 09.04.2018 and the expenses incurred therein has been met out from her pocket. Further, she was eligible to avail the benefit under the policy. The opposite parties being the Insurance Company liable to reimburse the said expenses, but for the reasons best known, till date Opposite Parties have not chosen to reimburse the Medical expenses of Complainant which has been to the tune of Rs.2,50,000/-. Therefore, the complainant has issued a legal notice to the Opposite Parties on 10.11.2018 calling upon the Opposite Parties to reimburse the same along with accrued interest @ 24% per annum with a week from the date of receipt of this notice and to pay a sum of Rs.50,000/- towards mental agony. As the Opposite Parties have failed to comply with the terms of Insurance, it was deficiency in service and hence the present complaint was filed for the reliefs mentioned above.
Crux of the defence put forth by the opposite parties:-
The Opposite Parties 1 & 2 jointly filed version stating that the case on hand involves intricate question of facts and law, which require voluminous evidence, oral as well as documentary, to lead for proper adjudication and hence the complaint be returned to the competent court and to direct the Complainant to approach the civil court. Insurance policy is a contract and both parties are under obligation to obey/fulfil all terms and conditions of the same and the claim arrived is also processed within the precincts of policy only. The Complainant obtained travel insurance on 23.12.2017 for a period of 6 months from 02.01.2018 to 30.06.2018. The policy included coverage for Medical expenses during travel outside India-worldwide excluding USA and Canada subject to terms and conditions of the policy. The policy coverage was specific in terms and conditions mentioned in the travel kit provided with the policy schedule and on detail scrutiny of documents it can be sent that the insured had consulted for the treatment of Haemorrhoids and Medical records as well attending physician’s certificate received states history of Haemorrhoids surgery in 2016 and colonic Resection in 2016, which is pre-exiting to the policy. Current ailment was complication of pre-existing disease. Policy does not extend coverage for pre-existing ailment and its complications as per below Exclusion Clause.
“The Company shall be under no liability to make payment in respect of any routine physical or other examination where there is no objective indication of impairment of normal health.
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.”
Thus, the policy does not cover examinations which do not reveal impairment of normal health and also pre-existing condition which existed prior to commencement of policy period. The claim made by the complainant for Haemorrhoid while in Australia during Feb to April’2018, upon receipt of intimation, while examining the Medical records and history it was revealed that Complainant already had Haemorrhoid problem earlier and underwent treatment during 2016 which was recorded in the Medical history of Hospital. It is pertinent that the Complainant has provided the details of the Hospital as well as the Medical record while she has filed only invoices and the Complainant has admitted in the claim form of having taken treatment for this illness before at St.Isabel Hospital, Chennai.
The policy schedule declaration by Insured clause is as under:
“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 complications arising from them that are declared or undeclared”.
Since the claim pertained to a pre-existing condition, the Opposite Party declined liability justifiable as per terms and conditions of the policy (exclusion 2.4.12) vide letter dated 01.06.2018. Therefore, the complaint is not sustainable and the same has to be dismissed with costs. Thus, they sought for the dismissal of the complaint.
On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A9. The opposite parties filed proof affidavit and submitted documents marked as Ex.B1 to Ex.B5 on their side.
Points for consideration:-
Whether the deficiency in service as alleged against the Opposite Parties by the Complainant in repudiating the Medical Insurance has been proved successfully by the Complainant by acceptable evidence?
If so to what reliefs the complainant is entitled?
Point No.1:-
The following documents were filed on the side of complainant in support of her contentions;
Copy of insurance policy certificate dated 23.12.2017 was marked as Ex.A1;
Visa copy of the complainant dated 08.06.2017 UTI-ULIP Slip and Micro SIP was marked as Ex.A2;
Copy of the payment details from 14.02.2018 to 01.05.2018 was marked as Ex.A3;
Copy of claim form dated 23.12.2017 was marked as Ex.A4;
Legal notice issued by the complainant to the 1st opposite party dated 10.11.2018 was marked as Ex.A5;
Legal notice issued by the complainant to the 2nd opposite party dated 10.11.2018 was marked as Ex.A6;
Reminder letter sent by the complainant dated 17.08.2017 was marked as Ex.A6;
Track consignments for proof of delivery were marked as Ex.A7 &Ex.A8;
Discharge Summary of complainant issued by St John God Berwick Hospital dated 10.04.2018 was marked as Ex.A9;
On the side of opposite parties the following documents were filed in proof of their defence;
Policy Schedule was marked as Ex.B1;
Insurance Policy with terms and conditions was marked as Ex.B2;
Medical Records of complainant was marked as Ex.B3;
Discharge Summary of Isabella Hospital was marked as Ex.B4;
Repudiation letter dated 01.06.2018 was marked as Ex.B5;
Heard both the parties and perused the pleadings and evidences submitted by them.
The crux of the case of the Complainant was that she had availed travel insurance policy from the 1st Opposite Party vide OG-18-1501-9910-00011315 vide customer ID 110836170 on her visit to Australia on 10.02.2018. She suffered sudden bleeding and on consultation with the Doctor in Australia it was diagnosed that the Complainant was having Haemorrhoid and was advised by the Doctor in Australia that she has to undergo surgery on 09.04.2018. However, it was an admitted fact that she was in St.Isabel’s Hospital, Chennai on 13.01.2016 and discharged on 14.01.2016 for rectum growth and that left kidney was small in size and shrinked. On diagnosis and on Doctor’s suggestion had to undergo surgery for rectosigmoid growth and left Hydroureteronephrosis which happened on 29.01.2016 and on this procedure many things has been done like left kidney removed, left side colon removed, left ureter removed, rectum growth is mobilized will below and Haemorrhoid is done in 11’0 clock position and removed totally and discharged on 10.02.2016. Therefore, this proves Haemorrhoid diagnosed in Australia was a new one and not an existing one or pre-existing condition and no way related to the surgery happened in 2016 which has been clearly proved by St.John of God Berwick Hospital, Australia Doctor Mr.Hodgkins discharge summary which says “previous Bowel Resection not related to current problem which was submitted as ExA9. The subject policy’s clause mentions as follows:
“2.2 The Company shall be under no liability to make payment in respect of any routine physical or other examination where there is no objective indication of impairment of normal health....
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”
Here we are not claiming for any routine physical nor other examination of normal health and this claim for surgery is not Medical condition or complication before or arising out of complication before the commencement of the policy period and this Haemorrhoid operation is new condition happened to the complainant in 2018 and the Complainant has vehemently contended that the Haemorrhoid done on 09.04.2018 is no way connected to the earlier disease.
The crux of the written arguments of the opposite parties is that the subject policy will not cover for the pre-existing medical condition wherein surgery in 2016 has been done for Haemorrhoid the Complainant itself had admitted that she had undergone a surgery. In accordance to the insurance policy terms and conditions the Opposite party is not in a position to pay the claim of the complainant for the expenses incurred in Australia. Thus, stating that the claim of the complainant for the expenses incurred cannot be paid which sought for and complaint to be dismissed.
To avoid repetition of the facts we are discussing only the relevant facts that are essential to determine the real issue.
We perused the documents provided by both the parties and the pleadings submitted by them. It could be seen that the documents marked as Ex B4 dated 10.02.2016 filed by the Opposite Parties in the discharge summery of St. Isabella Hospital reveals that a surgery was done for Haemorrhoidectomy which shows that the Complainant had undergone Surgery for the same. But it is contended by the Complainant in her Written Arguments that the Surgery done in St.Isable Hospital, Chennai on 29.01.2016 for Recto sigmoid growth and left Haemorrhoidectomy is different and in the operation many things had been done like left kidney removal, left side colon removal etc., and then discharged. Further the Complainant had alleged that Haemorrhoid occurs in three positions normally 1 0’clock, 7 0’clock and 11 0’clock as per Medical facts. The Haemorrhoid surgery was done in 1 0’clock position in Australia on 09.04.2018 and the Haemorrhoid operation done in 2016 is 11 0‘clock position. Therefore the same cannot be considered as pre-existing condition and is in no way related to surgery happened in 2016 and the ExA9 of the discharge summary by the Australia Doctor Mr.Hodgkins says “Previous Bowel Resection not related to current problem” and further the Haemorrhoid is not a chronic disease. But the Opposite Parties have come out with a clear reply that the Medical Insurance policy’s clauses restrict them from making any payment for the claim made by the Complainant being expenses incurred by the Complainant towards her Medical treatment in Australia as the same is a pre-existing disease. Therefore, we have no other option but to come to a conclusion that the Complainant is bound by the terms and conditions of the policy. Thus we are of the view that the Complainant failed to make out a case of deficiency in service on the part of the Opposite Parties in rejecting the Medical Insurance claim being the expenses incurred by the Complainant. Thus the Point is answered in negative and as against the Complainant.
Point No.2:
As we have held above that the complainant failed to prove any deficiency in service against the opposite parties he is not entitled any relief from the opposite parties.
In the result, the complaint is dismissed. No order as to cost.
Dictated by the Member I to the steno-typist, transcribed and computerized by him, corrected by the Member I and pronounced by us in the open Commission on this the 25th day of Janyary 2023.
Sd/- Sd/-
MEMBER-I PRESIDENT
List of document filed by the complainant:-
Ex.A1 23.12.2017 Copy of insurance policy certificate. Xerox
Ex.A2 08.06.2017 Visa copy of the complainant. Xerox
Ex.A3 14.02.2018
to 01.05.2018 Copy of the payment details. Xerox
Ex.A4 23.12.2017 Copy of claim form. Xerox
Ex.A5 10.11.2018 Legal notice issued by the complainant to the 1st opposite party. Xerox
Ex.A6 10.11.2018 Legal notice issued by the complainant to the 2nd opposite party. Xerox
Ex.A7 ................ Track consignment for proof of delivery. Xerox
Ex.A8 ............... Track consignment for proof of delivery. Xerox
Ex.A9 10.04.2018 Discharge Summary of the complainant. Xerox
List of documents filed by the opposite parties:-
Ex.B1 ............. Policy Schedule. Xerox
Ex.B2 ................ Insurance Policy with terms and conditions. Xerox
Ex.B3 ................ Medical Records of complainant. Xerox
Ex.B4 10.02.2016 Discharge Summary of Isabella Hospital Xerox
Ex.B5 01.06.2018 Repudiation letter. Xerox
Sd/- Sd/-
MEMBER-II PRESIDENT
