Sukhwinder Kaur, complainant has filed the present complaint against Bajaj Allianz General Insurance Company Limited (hereinafter called, the OPs) U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short, the C.P.Act.) in which she has prayed that the opposite party be directed to pay Rs.15,00,000/- alongwith interest @ 18% per annum from the date of its accrual till realization. Opposite parties be further directed to pay Rs.10,000/- on account of mental and physical agony suffered by her alongwith Rs.20,000/-as litigation expenses, in the interest of justice.
2. The case of the complainant in brief is that she got herself insured for travelling abroad vide insurance policy no.OG-17-9906-9910-00049192 on 7.2.2017 and paid a premium of Rs.2323/- which was valid upto 10.4.2017. The policy plan choosen was travel elite silver (U.S.Dollar 50000). As per the policy plan, the medical expenses were insured to the tune U.S.Dollar 50000, Personal accident was insured to the tune of U.S.Dollar 15000. Trip cancellation was insured upto U.S.Dollar 500. After purchasing the abovesaid policy and paying the full premium on the assurance made by the opposite party, she travelled to Newzealand to visit her daughter and son in law on 7.4.2017. She fell sick and was admitted in Auckland District Health Board Auckland City Hospital, where she was diagnosed with myocardial infection. She never had any previous cardiate history and she remained admitted in the hospital from 7.4.2017 to 12.4.2017 and the opposite parties were intimated on 8.4.2017 and the total expenses incurred by her were to Newzeland Dollar 19176.08. She also has to cancel her scheduled return trip. She had to purchase new ticket amounting to Newzealand Dollar 984.62 and also suffer loss of Newzealand Dollar 1011.39 but could not return as she was in the hospital. She has to incur many expenses due to the cancellation of the trip of account of sudden sickness. She has next pleaded that the opposite party repudiated her claim vide letter dated 17.4.2017 on account of cancellation of trip which was against the policy terms and conditions. Vide E-mail dated 21.8.2017 the opposite party repudiated her claim. The opposite party has wrongly repudiated her claim. The opposite party as per terms and conditions of the policy had to settle the claim within 15 days but they failed to do so and have without any valid reason repudiated her genuine claim. Thus, there is deficiency in service on the part of the opposite party. Hence this complaint.
3. On notice, the opposite parties appeared through their counsel and filed their written reply taking preliminary objections that the present complaint is not maintainable. The complainant approached the opposite party for Travel Elite Silver Insurance Policy and the opposite party explained the entire policy cover alongwith its terms and conditions to the complainant. After understanding the same the insured filled the proposal form with the true and correct information and decided to take the policy. The opposite party believed the information to be true and the opposite party issued and supplied complete booklet alongwith policy no.OG-17-9906-9910-00049192 for the period 7.02.2017 to 10.04.2017 to the complainant/insured. On receipt of claim intimation, the opposite party immediately entertained, registered and processed the claim and officials of the opposite party applied their mind. The opposite party on perusing the claim of the complainant, the medical records and treatment records of the complainant and investigating the genuineness of the claim, came to the conclusion that the disease of the insured was pre-existing to the policy and repudiated the claim of the complainant vide letter dated 17.08.2017 in view of the policy terms and conditions. The contents of the operative part of the letter are as under:-
On detailed scrutiny of the same, we find that claim does not fall under the purview of the policy, for reason given below:-
You are consulted for the treatment of Myocardial Infarction. Medical records received are suggestive of History of hypertension and deranged lipid profile, which is pre-existing to the policy and has not been disclosed on proposal form at the time of purchasing policy. Non-disclosure of pre-existing ailments is violation of principle of insurance contract. Hence, the policy does not extend coverage for pre-existing ailment and its complications as per below exclusion clause.
Standard Travel Policy Exclusions
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 however attributable to any of the following :
2.4.12 Any medical condition of 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 Physician.
In this manner, the opposite party has repudiated the claim of the insured in view of the policy terms and conditions and there is no deficiency in service on the part of the opposite parties in any manner. The present complaint is liable to be dismissed on this score only. On merits, the same pleadings and averments have been repeated which were taken in preliminary objections and prayed for dismissal of the complaint.
4. Complainant has tendered into evidence her own affidavit Ex.CW1/A, alongwith other documents Ex.C1 to Ex.C22 and closed the evidence.
- Counsel for the opposite parties tendered into evidence affidavit of Sarpreet Kaur Ahluwalia, Assistant Manager Legal Ex.OP1 and closed the evidence.
6. We analytically observe with the judicial precision (that the majesty of constitutional justice bestows upon the Indian Courts) and find that the OP insurers have arbitrarily repudiated (Ex.C16) the complainant’s insurance claim (Ex.C5) for NZD 19957.38 (hospital bills) and NZD 1000 (other expenses) so as to deprive her of the ‘reimbursement-cover’ available to her medical hospitalization Bills and other exigencies vide the insurance policy (Ex.C1) purchased on 07.02.2017 from the OP insurers before undertaking her travel to New Zealand on 07.04.2017 to see her daughter and son-in-law; for the reason that the insured patient was not covered for ‘pre-existing medical conditions or complications’ as per the exclusion clause 2.4 (2.4.12) of the terms of the applicable policy. Somehow, the opposite party insurers here have failed to prove its allegations of ‘pre-existing’ disorders related to the instant medical-treatment to justify its impugned repudiation through some cogent evidence necessary to be produced during the present proceedings and as such these amount to ‘bald’ statements, only.
7. We find that the purchase and validity of the related policy have been duly admitted along with the factum of hospitalization and the medical treatment expenses incurred to the complainant. The complainant has duly proved her allegation contented (Ex.CW1/A) complaint through her evidentiary documents exhibited here as Ex. C1 to Ex.C22. The OP insurers in turn have produced its lone affidavit Ex.OP1 by its Asst. Manager (Legal) duly deposing that the medical treatment (angioplasty) received by the complainant at the New Zealand Hospital has been for the cure of one pre-existing cardio-logical situation but did not produce any evidence to substantiate the same. Somehow, the OP insurers here have failed to produce the treating doctor’s affidavit, discharge summary, treatment history and related admission schedule etc to prove their allegation of pre-existing disease/ailment etc for reasons best known to them alone and that addresses its repudiation as arbitrary, unethical and for the sake of some collateral considerations. The OP insurers here have somehow relied upon the complainant produced documents through misinterpretation but have failed to prove its allegation of any related pre-existing medical situation. The OP insurers have based their above repudiation decision solely on presumptions and hearsay evidences and the same are not admissible in judicial adjudicatory. Further, there has been no documentary evidence available/produced on the records of the present proceedings proving the presence/knowledge/symptoms of the ‘ailment’ (prior to the date of policy) for the medical treatment of which the present insurance mediclaim stood preferred.
8. Thus, the alleged misrepresentation/concealment/non-disclosure of material facts etc do not stand proved. In such like repudiations the o. n. p. (onus of proof) always lay heavily upon the insurers but here they have miserably failed to legally discharge the same successfully. We are strengthened in our above proposition by virtue of the valuable comments as made out by the honorable Punjab State Commission in the FA # 537 of 2008 titled: LIC of India vs. Priya Sharma & ors., as: “…. in this case, there is no evidence on record to prove that the deceased life assured was suffering from any pre-existing disease at the time of purchasing the policy. …. There is no evidence to prove that the deceased was ever admitted or took any treatment from any hospital or the doctor regarding the alleged pre-existing disease. …”. The honorable National Consumer Commission has further elaborated the legal proposition in RP # 218 of 2008 titled United India Insurance Co. Ltd., vs. Anumolu Rama Krishan as: “7… Even if Respondent was suffering from these diseases which admittedly do not occur overnight, it is both possible and plausible that he was unaware of it since these can be ‘silent diseases’ and a person suffering from them may not even be aware until the condition aggravates and overt symptoms appear….”. Even, the OP insurer’s refusal to ‘pre-authorizations’ requests by the treating hospitals are not justified and the subsequent demands of ‘non-descript’ and ‘non-exist’ imaginary documents are all the more un-sustainable. We also find that the mediclaim put forth by the complainant have been kept illogically deferred awaiting ‘settlement’ for collateral but arbitrary reasons. Even, the expert professional opinion pertaining to pre-existing disease cannot be taken as an evidence of its ‘non-disclosure/ suppression’ by the insured since she may not be ‘herself’ aware of the disease present in its latent hibernating state.
9. In the light of the all above, we are of the considered opinion that the OP insurers have blatantly bruised the consumer rights of the present complainant by adopting ‘unfair trade practices’ indicating ‘deficiency in service’ and in turn autobiographically attracting an adverse statutory award under the applicable Consumer Protection Act’ 1986. We, therefore, partly allow the present complaint and thus ORDER the OP insurers to pay the impugned ‘insurance claim’ for the full claim amount i.e. New Zealand Dollars 19176.08 + 500 New Zealand Dollars for Trip Cancellations (to its full benefits) strictly in accordance with the IRDA guidelines on ‘settlement of claims’ favoring the complainant besides to pay her a sum of Rs.10,000/- as cost and compensation within 30 days of receipt of the copy of the present orders otherwise the aggregate award amount shall attract interest @ 9% PA from the date of filing of this complaint till actual payment.
10. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
June 08,2018. Member
*MK*
