BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.332 of 2016
Date of Instt. 28.07.2016
Date of Decision: 10.06.2019
Kewal Singh Kainth S/o S. Bachitter Singh R/o B-17, MCH 810/37, Manavata Nagar, Sutheri Road, Hoshairpur, Punjab.
..........Complainant
Versus
Bajaj Allianz General Insurance Company Ltd., GE Plaza, Airport Road, Terwada, Pune Through its Chairman/ Directros/ Principal Office
Branch Office At:- Near BMC Chownk, Jalandhar – 144001. Through its Branch Manager/ Principal Officer.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Atul Malhotra, Adv Counsel for the Complainant.
Sh. Raman Sharma, Adv Counsel for OPs No.1 & 2.
Order
Karnail Singh (President)
1. Complainant has filed the instant complaint wherein alleged that the OP is providing insurance services to the general public for consideration particularly at Jalandhar through their branch office.
2. That complainant is a consumer of the insurance services provided by opposite parties. Complainant had got issued an insurance policy bearing No. OG-16-1202-9910-00000861 for USD 50000 as Travel Age insurance plan. Complainant had also got issued a similar insurance policy for his wife Mrs. Harjinder Kaur as both complainant and his wife were going abroad to Canada to visit his son Sukhwinder Kainth. Complainant had got cash transfer to the agent namely Anuj Gupta of OP who had deposited the cash payment at the Jalandhar Office of OP. After receiving the due premium, the Jalandhar Office of OP issued two insurance policies and copies of the same were obtained by the complainant through email Id of Anuj Gupta agent of OPs at Jalandhar.
3. That complainant had not been supplied with any terms and conditions till present date since insurance cover notes were received by complainant online and were printed through computer printer and complainant had downloaded the insurance cover notes online. No form was got filled in or signed from complainant by OPs. During the pendency of the said policy, complainant went abroad to meet his son Sukhwinder Kainth but unfortunately due to weather conditions, complainant became ill and suffered a stroke. Complainant was admitted in William Osler Health System, Brampton Civil Hospital, Brampton, 2100, Bovaird Drive East, Brampton, On LR6 3J7 on 14/6/2015 in emergency and got treatment there. Complainant had to spend about Canadian Dollars 18,413.67 on the treatment, operation, special diet, traveling expenses, consultantations etc. till present date and are still undergoing treatment and expenses regularly. Complainant through his son had informed OPs about the problem and had raised the claim with OPs immediately without any delay and had submitted all of the required documents as and when demanded by OPs but initially, OPs illegally and arbitraily refused to make the payment of cashless insurance claim to complainant citing vague and arbitrary reasons. Later on, OPs repudiated the claim of complainant vide letter dated 30.6.2015 citing illegal and arbitrary reasons of pre-existing disease. Complainant had never suffered such disease or problem earlier and had no knowledge of such disease or problem earlier.
4. That due to the above said facts, there is deficiency in services, negligence, unfair trade practices and restrictive trade practices on the part of OPs due to which complainant has suffered mental tension, harassment, inconveniences, damages, financial losses etc. and the complainant assesses the same to the tune of Rs. 19,00,000/- in all in terms of money. Since complainant is an old aged person and is not keeping good health and has to go abroad to visit his son at Canada, as such, complainant has given an authority letter in favour of his family friend Mr. Manial S/o S. Balbir Singh r/o 690/4, Guru Nanak Nagar, Kanjli Road, Kapurthala so as to pursue and carry on the present case in the absence of complainant. The act and conduct of the OP is tantamount to negligence, unfair trade practice and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay compensation of Rs. 19,00,000/- to the complainants for the above mentioned deficiency in services, negligence, unfair trade practices and restrictive trade practices and further OPs be directed to make payment of Canadian Dollars 18,413.67 (as on 18/6/2015) along with interest @ 18% per annum from 18/6/2015 till date of payment of entire sum and further OPs be directed to pay litigation expenses of Rs.11,000/-.
5. Notice of the complaint was given to the OPs and accordingly, both the OPs appeared through its counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the instant complaint is not maintainable against the Bajaj Allianz General Insurance Co. Ltd./ OP. It is clear from the reports by the treating hospital namely William Osler Health System, Brampton Civic Hospital, Brampton that the complainant was having a past history of poorly controlled hypertension, Diabetes Mallitus Type 2 and Diabetic Retinopathy. 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 2.4.12 of the insurance policy which is reproduce below:
Exclusion Clause
“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”.
6. As the claim is not payable as per exclusion clause 2.4 and 2.4.12 of insurance policy, as such the claim of the complainant was repudiated as per exclusion clause 2.4 and 2.4.12 of the insurance policy and the complainant was intimated about the repudiation vide letter dated 30/6/2015 after due application of mind and further aware that there is no deficiency in service on part of the OP. On merits, it is admitted that complainant got insurance policy and it is also admitted that complainant submitted insurance claim but the same was repudiated after due application of mind because the claim of the complainant is hit by exclusion clause 2.4 and 2.4.12 of the terms and conditions of the insurance policy. The other allegations in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
7. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of complainant Ex.CA alongwith copies of documents Ex. C1 & Ex. C2 copy of insurance policies, Ex. C3 authority letter, Ex. C4 Summary of medical bills, Ex. C-5 to Ex. C-20 complete medical file, Ex. C-21 to Ex. C-78 Medical Bills, Ex. C-79 repudiation letter, Ex. C-80 Passport of complainant and then closed the evidence.
8. Similarly, counsel for the OP tendered into evidence affidavit of Sh. Jai Singh Ex.OA alongwith copies of documents i.e. Ex.O1 Copy of insurance policy, Ex. O2 terms and conditions, Ex. O3 letter of repudiation, Ex. O4 final summary report dated 18/6/2015 (consisting of three pages), Ex. O-5 consultations papers dated 14/6/2015 of William Osler Health System Brampton Civil Hospital and then closed the evidence. Apart from that, counsel for OP also filed an application for allowing to place on the file some documents i.e. affidavit of Dr. C.H. Asrani Ex. O6 alongwith his report.
9. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
10. In order to avoid repetitions of the facts narrated by the complainant as well as by the OP, we like to discuss the main controversy raised by the OP for repudiating the claim of the complainant, for that purpose it is necessary to go through the repudiation letter which is placed on the file by the complainant as well as by the OP, the same is Ex. O3 dated 30/6/2015. In the said repudiation letter, the plea taken by OP for rejecting the insurance claim of the complainant is as under:-
“On detailed scrutiny of the same, we find that the claim does not fall under the purview of the policy for reasons given below:-
Verification of claim documents reveals aforesaid claimant has travelled overseas on 2-Jun-2015 and was hospitalized on 14-Jun-2015 for treatment of Acute Sub Cortical Stroke, Hypertensive Emergency causing acute stroke. As per the medical records provided by the claimant is known to suffering from poorly controlled hypertension, Diabetes Mallitus and Diabetic Retinopathy prior to the inception of the policy. We regret to inform you the claim stands repudiated as the policy do not extend coverage for any expenses incurred on investigation and treatment of any pre-existing illness its complication.”
11. We have analyzed the ground taken by OP for repudiation of the insurance claim of the complainant in nutshell, the complainant has concealed the pre-existing disease and as per the terms and conditions of the insurance policy, the complainant is not entitled for the insurance relief and copy of terms and conditions are also placed on the file by OP as Ex. O2. It is admitted that the plea of pre-existing disease of the complainant is raised by the OP first time in repudiation letter dated 30/6/2015 and thus onus shifted upon the OP to establish that there was pre-existing disease to the complainant prior to inception of the insurance policy. Admittedly for that purpose, the OP has brought on the file many documents Ex. O4 and O5 known as final summary report and consultation reports respectively. In the final summary report it is described by the doctor of Brampton Civic Hospital that the past medical history of the complainant shows hypertension, poorly controlled, diabetes mellitus type 2, diabetic retinopathy and further in consultation report Ex. O5, the treating doctor is categorically mentioned that the past history of the patient is type 2 diabetes for 22 years, hypertension, retinopathy with partial blindness in both eyes and in order to give strength to this report of the treating doctor, the OP has also placed on the file expert opinion of another doctor i.e. Dr. C.H. Asrani, DNB, MBBS, advanced diploma in Forensic medicine and Toxicology whose report is available on the file for consideration, though it is not tendered by the OP at the appropriate time, it being opinion of one expert doctor. We think it necessary to take into consideration and we find that the report given by doctor is admittedly based on the documents and treatment given by the doctor at Brampton Civic Hospital and as such, the report of this expert witness can't be given much weightage because we have already gone through the reports of the treating doctor which are sufficient to reach at right conclusion and accordingly we analyzed the report of treating doctor Ex. O 4 and O5 and find that a simply writing by one treating doctor there is a type 2 diabetes for 22 years, hypertension, is not sufficient until the OP did not make effort to prove that the complainant was taking medicine for such a long time for 22 years for the said disease type 2 diabetes and hypertension but obviously there is no iota of evidence bring on the file by the OP to establish that complainant was getting medicine and treatment from any doctor for the last so many years. So in the absence of this type of evidence, we can't blindly accept the version of one treating doctor which having no authenticated documentary prove and in support of this observation, we like to refer a pronouncement of Hon'ble Apex Court cited in 2001 (1) CLT 162 titled as “Life Insurance Corporation of India and Others Versus Asha Goel and another”, wherein his lordship held as under:-
Insurance Act, 1938, Section 45- 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 accuracy 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 another pronouncement of Hon'ble National Commission cited in III (2012) CPJ 597 (NC) titled as Life Insurance Corporation of India Versus Gurinder Kaur, wherein his lordship held as under:-
Consumer Protection Act, 1986 – Sections 2 (1)(g), 14(1)(d), 21(a)(ii) – Insurance (Life) – Death of insured within 13 months from date of signing the proposal – Suppression of Pre-exising 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 – Impugned order upheld”.
Further we like to refer another pronouncement of Hon'ble National Commission cited in 2012(1) CLT 550 titled New India Assurance Co. Ltd. & Ors. Versus Bimla Devi Jhunjhunwala, wherein his lordship held as under:-
Insurance Claim – Mediclaim Policy – Pre-existing disease – Respondent got the limit enhanced from Rs. 1 Lakh in the year 2000 – She was operated upon after two years and 9 months of the enhancement of the limit of the insurance cover – It cannot be assured that the Respondent deliberately got the limit enhanced to Rs. 3 Lakh by suppressing the fact that she was suffering from Osteroarthritis in anticipation of the operation which took place after about three years – The plea put forth by the Petitioner that the disease was pre-existing or that he had withheld the material fact regarding the disease cannot be accepted in the absence of evidence to that effect”.
12. Apart from above, we are of the opinion that the OP is required to establish on the file that complainant had any prior knowledge about his medical problem as alleged by the OP that there is a pre-existing disease. If complainant was not proved to having earlier knowledge of the said disease before the inception of the policy then we can say that the complainant has not concealed the said disease from the OP at the time of taking of the insurance policy but in the absence of any evidence, which is to be bring on the file by the OP, we can't accept the version of the OP that due to pre-existing disesase, the case of the complainant does not cover under the terms and conditions as alleged by the OP and in support of above observation, we like to refer another pronouncement of the Hon'ble National Commission cited in 2012(1)CLT 584 titled United India Insurance Co. Ltd. Versus 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 of the symptoms or complaints therof at the time of making the proposal for issuance – 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”.
13. In the light of above detailed discussion, we came to the conclusion that the complainant is able to establish on the file that the OP has illegally, malafidely repudiated the claim of the complainant and as such, there is deficiency in service on the part of the OP and accordingly complaint of the complainant succeeds and the same is hereby partly accepted and OP is directed to pay the expenses of treatment incurred in hospital in Canada i.e. 18,413.67 by converting into Indian Rupees as per rate at that time i.e. 18/6/2015 and then also pay interest thereon @12% on the Indian Currency from 18/6/2015 till realization and further OP is directed to pay compensation to the complainant for causing mental tension and harassment to the tune of Rs. 50,000/- and litigation expenses of Rs. 5,000/-. 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.
13. 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
10.06.2019 Member President
