BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.472 of 2018
Date of Instt. 13.11.2018 Date of Decision: 22.10.2019
Hardeep Kaur w/o S. Iqbal Singh aged about 53 years r/o SWS-119, Sarabha Nagar, Santokhpura, Hoshiarpur Road, Jalandhar.
..........Complainant
Versus
1. Bajaj Allianz General Insurance Company Limited, Regd. Office GE Plaza, Airport Road, Yerwada, Pune.
2. Bajaj Allianz General Insurance Company Limited, 2nd Floor, Satnam Complex, BMC Chowk, G. T. Road, Jalandhar.
3. Mrs. Amandeep Kaur w/o Mr. Amit Jot Singh r/o Unit-2, 40-42, Empress Street, Hurstville, NSW, Australia-2220.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Arvind Sharda, Adv. Counsel for the Complainant.
Sh. R. K. Sharma, Adv. Counsel for the OPs No.1 & 2.
OP No.3 exparte.
Order
Karnail Singh (President)
1. This complaint has been filed by the complainant with the prayer that he had taken an overseas medi-claim insurance policy bearing No.OG-19-1202-9910-00001581 from OPs No.1 and 2. The said insurance policy was for the period 28.05.2018 to 23.11.2018. The said medical insurance plan was Travel Elite Silver and the same was having geographical coverage all over the world except USA and Canada. The complainant planned to go Australia to visit family of her daughter namely Smt. Amandeep Kaur. For that purpose, the complainant procured the aforementioned insurance policy from the OP No.2, who is operating branch office of OP No.1 at Jalandhar. As per the terms of the aforementioned insurance policy, the complainant was entitled for medical expenses/benefits upto the extent of US $50,000/-, personal accident US $15,000/-, hospital daily allowance US $25/- per day etc. during the policy period.
2. That on 28.05.2018, the complainant reached Australia. During her stay at Australia, on 28.07.2018, the complainant suffered low back pain, which was un-bearable and for that she was hospitalized at St. George Hospital, Gray Street, Kogarah New South Wales, Australia for the treatment. The OPs No.1 and 2 were informed from Australia about the said treatment being taken by the complainant over the customer care telephone number provided by the OPs No.1 and 2. It is pertinent to mention over here that the OPs No.1 and 2 can be informed from any part of the world through the said customer care telephone number. Apart from it, the son of the complainant namely Sh. Harpreet Singh also informed the OPs No.1 and 2 in India about her treatment.
3. That at the time of discharge from the hospital, since the complainant was keeping the insurance card issued by the OPs No.1 and 2, the treating hospital let the complainant go after taking credit card details of the daughter of the complainant namely Smt. Amandeep Kaur. The medical treatment bill raised by the said hospital towards the treatment of the complainant was AUD $2441/-, which comes out to be Rs.1,26,000/-. The complainant was discharged from the said hospital on 29.07.2018. The complainant came back to India on 15.08.2018. The claim form along with all the necessary documents towards the medical treatment of the complainant were sent to OP No.2 through soft copy. On 08.10.2018, the OPs No.1 and 2 wrongfully repudiated the insurance claim of the complainant by sending an undated letter to the complainant. The reason cited under the said repudiation letter was that the ailment for which the complainant received medical treatment was pre-existing at the time of procuring the aforementioned insurance policy. In fact, the pain suffered by the complainant for which she took treatment at the hospital in Australia, never occurred before. In fact the said pain was witnessed by the complainant for the first time. After the repudiation of the claim of the complainant, the OP No.3 was made to pay a sum of AUD 2441/- to the aforementioned hospital at Australia through her credit card, but the OP arbitrarily and illegally did not pay the said amount, rather repudiated the claim of the complainant and as such, the act and conduct of the OP is tantamount to deficiency in service, which gave rise to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the medical insurance claim of the complainant amounting to Rs.1,26,000/- along with interest @ 14% from the date of filing of claim till realization and further, OPs be directed to pay compensation of Rs.50,000/- towards deficiency in service and for causing mental harassment to the complainant and be also directed to pay Rs.22,000/- as litigation expenses.
4. Notice of the complaint was given to the OPs, but OP No.3 despite service did not come present and ultimately, OP No.3 was proceeded against exparte, whereas OPs No.1 and 2 appeared through its counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the claim is bad for mis-joinder of unnecessary parties and non-joinder of necessary parties and further alleged that the claim is bad by the principles of estoppels, waiver and acquiescence and further submitted that the claim of the complainant have been rightly processed by the answering OP. The complaint is not maintainable under Consumer Protection Act as there is no deficiency of service on the part of the answering OP and further averred that the complaint is not maintainable against the OPs No.1 and 2. It is evident from the medical record received that the complainant had previous histories of disease treated for. The complainant consulted St. George Hospital for the treatment of Exacerbation of Chronic Lower Back Pain and Medical Record dated 29.07.2018 revealed that the complainant had History of Lower Back Pain, Iron Deficiency anemia. The current ailment is pre-existing as well as complication of pre-existing medical condition and the same is excluded from the scope of the policy. The policy does not extend coverage for pre-existing ailment. The expenses in the present case are attributable to, arising out of, traceable to and a complication of pre-existing ailment of the complainant and not payable under the policy terms and conditions and falls under the exclusion clause 2.4 and 2.4.12 and accordingly, by applying the said aforesaid clauses, the claim of the complainant has been rightly repudiated and intimation regarding that was given to the complainant, vide letter dated 24.09.2018. On merits, it is admitted that the complainant got insurance policy and also submitted a medico insurance claim and the same was admittedly repudiated. The other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits, the same may be dismissed.
5. Rejoinder not filed. Both the parties placed on the file their respective documents just to prove the allegations made against each other.
6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
7. We find there is no need to discuss the pleading of both the parties in deeply because the factum in regard to getting of overseas medi claim insurance policy by the complainant from OPs No.1 and 2 for a period 28.05.2018 to 23.11.2018, is admitted and it is also admitted that the complainant got treatment from Australia and thereafter submitted a medi-claim and the same was considered and repudiated by the OP and now we have to follow the allegations of the complainant from the point of repudiation, on which ground the same has been repudiated, the claim of the complainant as per repudiation letter Ex.A9 dated 24.09.2018, the same is also placed on the file by the OP Ex.O-3, in that repudiation letter, the claim of the complainant has been repudiated by attributing exclusion clause 2.4 and 2.4.12 of the insurance policy, on the ground that the complainant was having pre-existing disease, prior to taking of insurance policy and as such, the complainant has concealed the material facts, therefore, he is not entitled for the insurance claim. Admittedly, the exclusion clause as referred in the repudiation letter are binding upon the parties, but question remains whether the complainant virtually concealed the pre-existing disease at the time of inception of the policy, if so, then duty casted upon the OP to produce on the file cogent and convincing documentary evidence. For reference, the OP can easily placed on the file copy of proposal form, which was filled by the complainant at the time of inception of the policy and in that proposal form, the complainant has disclosed his previous ailment or not, but for the best known reason, the OP has not brought on the file the material documents, which is very much necessary to reach a right conclusion.
8. The OP has made reliance upon the medical record taken from the treating doctor in Australia and the copy of the same is Ex.O2, wherein the doctor has mentioned as under:-
“Medical History: Details:
Hysterectomy 10 years ago
GORD
Low back pain
Iron deficiency anemia”
The aforesaid wording has been taken by the OP from the document of the treating doctor and repudiated the claim of the complainant by stating that the said disease is pre-existing disease to the complainant which she has concealed at the time of taking policy, but simply writing these words by the doctor is not sufficient, until it is established on the file that the complainant has been taking medicine for the said ailment, prior to the inception of the policy, but to this effect no document has been brought on the file by the OP and here, we like to refer a law settled by the Hon’ble Apex Court, cited in 2001(1) CLT 162 Supreme Court, titled as “Life Insurance Corporation of India and others Vs. Asha Goel and another”, wherein his Lordship categorically held as under:-
“Insurance claim- Repudiation - On the ground of suppression of material facts- Three conditions laid down for applicability of the second part of Section 45 (a) the Statement must be on a material matter or must suppress facts which it was material to disclose; (b) the suppression must be fraudulently made by the policy holder; and (c) the policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose Mere inaccuracy of falsity in respect of some recitals or items in the proposal is not sufficient- The burden of proof is on the insurer to establish these circumstances- Unless the insurer is able to do so there is not ground of mis-statement of facts.”
On the same point, we further like to refer an other pronouncement of Hon’ble National Commission, cited in III (2012) CPJ 597 NC, titled as “Life Insurance Corporation of India Vs. Gurinder Kaur”, wherein his Lordship held as under:-
“Suppression of pre-existing disease alleged – Claim repudiated – Alleged deficiency in service – State Commission allowed complaint – Hence appeal – Appellant has failed to substantiate the plea that assured was suffering from hypertension and heart disease and had suffered paralytic attack – Signatures on proposal form, medical examiner’s confidential reports and ECG form are of one and same person – Medical examination is done by a doctor appointed by Insurance Company and insured was referred by insurance agent to designated doctor.”
We further take an opportunity to refer an other pronouncement of the Hon’ble National Commission, cited in 2012(1) CLT 584, titled as “United India Insurance Co. Ltd. Vs. Krishna Prakash Dubey”, wherein his Lordship held as under:-
“Mediclaim policy – Insurance claim - Pre-existing disease –Exclusion clause – Burden of proof- As per exclusion clause a person would not be entitled to Indemnification if he contracts the disease as stated during the first 30 days from the commencement of the date of the policy – But the note which has the effect of a provisio, clearly states that the exclusion clause will not apply if in the opinion of a panel of medical practitioner constituted by the company for the purpose, the insured person could not have known of the existence of the disease or the symptoms or complaints thereof at the time of making the proposal for insurance – The burden to prove that the respondent complainant had any prior knowledge about his medical problem was squarely on the petitioner Insurance Company who have not been able to discharge the same satisfactorily.”
9. If we see the case of the complainant in the light of the above judgments, then we find that the OPs has miserably failed to produce any credible documentary evidence to establish that the policy holder/complainant has known at the time of making the statement in the proposal form that he has some ailment, if the complainant herself was not aware about the said disease of back pain, at the time of inception of the policy, then how we can assess that she has suppressed the said facts, so accordingly, we find that the claim of the complainant has been wrongly and illegally repudiated by the OPs and thus, the repudiation letter dated 24.09.2018 is hereby set-aside and further hold that the complainant is entitled for the relief claimed.
10. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs No.1 and 2 are directed to pay the medical insurance claim amount of Rs.1,26,000/- to the complainant with interest @ 12% per annum from the date of repudiation the claim i.e. 24.09.2018, till realization. Further, OPs No.1 and 2 are directed to pay compensation of Rs.25,000/-, to the complainant for causing mental harassment and agony to the complainant and further, OPs No.1 and 2 are directed to pay litigation expenses of Rs.7000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Karnail Singh 22.10.2019 Member President
