Complaint No: 16 of 2019.
Date of Institution: 21.01.2019.
Date of order:01.12.2023.
Sarabjit Kaur Randhawa wife of Balbir Singh, resident of House No. 53/1006, Navroop Nagar, Civil Lines, Batala, District Gurdaspur.
….....Complainant.
VERSUS
1. Bajaj Allianz General Insurance Company Ltd., Shop No. 21, Jalandhar Road, Shastri Market, Opposite Grandway Hotel, Batala. Pin Code – 143505, District Gurdaspur.
2. G.E. Plaza, Airport Road Yerawada Pune - 411006, through its Manager.
….Opposite parties.
Complaint U/S 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.S.S. Aujla, Advocate.
For the Opposite Party No.1: Sh.Sandeep Ohri, Advocate.
Opposite Party No.2 exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Sarabjit Kaur, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Bajaj Allianz Gen. Ins. Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that she got Overseas Travel Insurance Policy bearing No.0G-17-1210-9910-0000-1442, for the period from 22.12.2016 to 21.03.2017 from the opposite parties. It is further pleaded that complainant left India for Germany on 25.12.2016 and reached there on 26.12. 2016 and came back India on 20.03.2017. It is pleaded that the complainant suddenly fell seriously ill in Germany on 10.01.2017 and admitted in EV KRANKENHAUS LUTHER STIFT FRANKFURT (ORDER) SEELOW, HOSPITAL, on the same day i.e. 10.01.2017 and discharged on 13.01.2017 and the complainant had spent on her medical treatment 1,678.81 EUR (according to Indian currency Rs.1,25,850/-). It is further pleaded that again on 23.02.2017 the complainant fell ill and was admitted in the above said Hospital for her medical treatment and was discharged from the hospital on 25.02.2017 and spent 1,658.18 EUR (according to Indian currency Rs.1,24,350/-). It is pleaded that the complainant spent total amount of Rs.2,50,200/- according to Indian currency for her medical treatment and she is legally entitled to get the said amount recovered from the opposite parties. It is pleaded that the complainant approached the opposite parties time and again and requested them to make the payment of the amount spent by her on her medical treatment in Germany, but they kept on giving false assurance to the complainant to make payment soon, but of no avail. Ultimately the complainant served a Legal Notice upon the opposite parties through her counsel calling upon them to make payment of Rs.2,50,200/- to the complainant within 15 days from the receipt of the Legal Notice, but of no use although the opposite party No. 2 received the Legal Notice. It is pleaded that Legal Notice sent to the opposite party No. 1 through registered cover received back undelivered with report of Postman "Left". It is pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to make the payment of Rs.2,50,200/- the amount spent by the complainant on her medical treatment in Germany alongwith interest @ 18% per annum till its realization. The opposite parties may also be directed to pay Rs.50,000/- as compensation for unnecessary harassment, physical pain and mental agony, suffered by the complainant, in the interest of justice.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the the present complaint filed by the complainant is gross abuse of process of law, and is absolutely false, frivolous and vexatious thereby making it illegal and not tenable thus as the said complaint is filed without any cause of action, the same is liable to be dismissed in limine. It is pleaded that the present complaint of the complainant is not tenable under the provision of law and as such it is liable to be dismissed with cost. It is pleaded that complainant has not approached this Hon'ble Commission with clean hands and as such, the complaint is liable to be dismissed. It is pleaded that complaint is bad due to acts, deeds, conduct and acquiescence of the complainant. It is further pleaded that the present complaint is very complex in nature, involves intricate questions of facts and law and requires perusal of voluminous documentary evidence for determination of dispute at hand and it is not possible to weigh the evidence properly in summary procedure as followed by this Hon'ble Commission. It is pleaded that therefore, this Complaint may please be returned to competent civil court for proper adjudication of the matter through a full-fledged trial. It is further pleaded that the answering opposite party states and submits that, the contents of the said complaint, unless specifically admitted, are not true nor correct and hence are denied by this opponent. It is pleaded that complainant has no locus standi to file the present complaint and there is no deficiency in service on the part of the answering opposite party. It is further pleaded that the policy was issued in favour of the complainant and the claim has been filed by the complainant alongwith the documents. On scrutiny of the documents, the opposite party insurance company found that the claim does not fall within the purview of the policy. It is pleaded that as per the documents submitted, the complainant consulted for the treatment of Hypertensive crises, Hypertrophic cardiomyopathy, Mild grade Aortic valve insufficiency and Hypernatremia. It is further pleaded that the medical records received are suggestive of history of Hypertension since 10 years, which is pre-existing to the policy and has not been disclosed on proposal form at the time of purchasing of policy. It is pleaded that Non-disclosure of pre-existing ailment is violation of the principles of the utmost good faith and current ailment is complication of pre-existing medical condition. It is further pleaded that policy does not extend coverage for pre-existing ailments and its complications as per policy exclusion clause; the declaration given by the insured clearly provides that the policy has been issued on the basis of the information provided and the policy is not valid if any of the information provided is incorrect. It is pleaded that even the policy does not cover the pre-existing illness and as such the complainant is not entitled for any claim, as per the terms and conditions of the policy. It is further pleaded that the policy was issued for a period from 22nd December 2016 to 21st March 2017. The intimation to the company has been given on 18th April 2017 and the date of treatment is 10th January 2017. The claim has been denied and the letter dated 26th October 2017 has been dully sent to the complainant. It is further pleaded that even otherwise, if this Ld. Commission comes to the conclusion that there is any liability of the Insurance Company, then in that case, the liability is only as per the terms and conditions of the insurance policy and as per coverage.
On merits, the opposite party No.1 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Opposite party No.2 did not appear despite the service of notice and was proceeded against exparte vide order date 09.04.2019.
5. Learned counsel for the complainant has tendered into evidence affidavit of Sarabjit Kaur, (Complainant) as Ex.C-8 alongwith other documents as Ex.C-1 to Ex.C-7.
6. Learned counsel for the opposite party No.1 has tendered into evidence affidavit of Ms. Sarpreet Kaur Ahluwalia, (Assistant Manager Legal, Authorized Signatory, Bajaj Allianz Gen. Ins. Co. Ltd, Chandigarh) as Ex.OPW-1/A alongwith other documents as Ex.OP-1/1 to Ex.OP-1/6.
7. Rejoinder not filed by the complainant.
8. Written arguments not filed by both the parties.
9. Counsel for the complainant has argued that complainant had purchased Overseas Travel Insurance Policy from opposite party No.1 and had gone to Germany on 25.12.2016 and during her stay in Germany complainant fell ill on 10.01.2017 and remained admitted in EV KRANKENHAUS LUTHER STIFT FRANKFURT (ORDER) SEELOW, HOSPITAL and remained admitted from 10.01.2017 to 13.01.2017 and had spent Rs.1,25,850/- as per Indian currency and thereafter again fell ill on 23.02.2017 and remained admitted form 23.03.2017 to 25.02.2017 and amount of Rs.1,24,350/- as per Indian currency was spent and on claim having been lodged the claim was repudiated by the opposite party no.1 without any justification which amounts to deficiency in service on the part of opposite party no.1.
10. Counsel for the opposite party No.1 has argued that issuance of policy of insurance is admitted. However, on scrutiny of the documents it was found that claim does not fall with the purview of policy. As per the documents complainant consulted for treatment of Hypertensive crises, Hypertrophic cardiomyopathy, Mild grade Aortic valve insufficiency and Hypernatremia and as per the medical record received are suggestive of history of hypertension since 10 years and it was a case of pre-existing disease and non disclosure of pre-existing ailment is violation of the principles of good faith ad the policy does not extend coverage for pre-existing disease ailment and its complications as per policy exclusion clause and as such claim was not payable under the policy and was rightly repudiated.
11. Opposite party No.2 remained exparte.
12. We have heard the Ld. counsels for the complainant and opposite party No.1 and through the record.
13. To prove his case complainant has placed on record copy of welcome letter and policy of insurance Ex.C1, copies of treatment record and bills Ex.C2 and Ex.C3, copy of legal notice Ex.C4, post receipt Ex.C5, Return envelope Ex.C6, repudiation letter Ex.C7 and affidavit of complainant Ex.C8 whereas opposite party No.1 has placed on record affidavit of Sarpreet Kaur Ahluwalia Asstt. Manager Legal Ex.OPW-1/A, copy of proposal form Ex.OP-1/1, copy of welcome letter and policy of insurance Ex.OP-1/2, copy of repudiation letter Ex.OP-1/3, copy of claim form Ex.OP-1/4, copy of discharge certificate Ex.OP-1/5 and copy of travel prime policy Ex.OP-1/6.
14. Perusal of evidence on record shows that opposite parties have repudiated the claim mainly relying upon the medical history as per which hypertension for the last 10 years and CAD since Feb. 2017 has been mentioned but we are of the view that since the complainant had purchased the policy of Overseas Travel Insurance Policy from the opposite parties and the opposite party No.1 should had compelled the complainant to under go medical examination before issuance of the policy and since in the present case the opposite party No.1 failed to get the complainant medical examined as such opposite party No.1 cannot take the plea of pre-existing disease. Moreover, perusal of medical history copies of which are Ex.C2 and Ex.C3 are in Gernam language and opposite parties have failed to place on record any translation of the said record to prove this fact that the diseases from which complainant suffered while in journey was result of hypertension for which the complainant took treatment 10 years ago. Moreover, opposite parties have not placed on file any document of the doctor who allegedly treated the complainant for hypertension since 10 years and as such we are of the view that mere reference of hypertension since 10 years is not sufficient evidence to prove that complainant was having pre-existing disease as alleged by the opposite parties.
15. This Commission has placed reliance on judgment of Hon'ble Supreme Court of India 2023(2) Law Herald (SC) 1560 titled as Om Parkash Ahuja Vs. Reliance General Insurance Co. Ltd. Etc. wherein it was held by the Hon'ble Supreme Court of India as under:-
"Consumer Insurance Health Insurance Non-mentioning of disease from which the deceased suffered at the time of purchasing the policy was not material, as the death was caused from a different disease all together Both had no relation with each other Insurance Company directed to pay".
As per this judgment it was held by the Hon'ble Supreme Court of India that non mentioning of disease from which wife of the applicant was suffering at the time purchasing policy is not material and the death was caused from different disease all together.
16. Further, reliance is be placed on another judgment of Hon'ble Supreme Court of India reported in 2018(1) Law Herald (SC) 832 wherein it was held by Hon'ble Supreme Court of India as under:-
"Insurance Life Insurance Premium accepted without conducting of medical examination Amounts to waiving off condition precedent in proposal form Insurer held liable to pay".
The ground of the opposite parties regarding non settlement and payment of the claim is previous history of hypertension but this Commission is of the view that hypertension is a common life style disease and it is not necessary that person suffering from hypertension would always suffer from some other disease or heart disease. More over Hypertension is common life style disease and every third person might have suffered from the same at some point of his life. This Commission has placed reliance an order of Hon'ble Punjab State Consumer Dispute Redressal Commission, Chandigarh reported in 2017(3) CLT 140 wherein it was held as under:-
"Hypertension is a common disease and it can be controlled by medication".
17. We are of the view that the opposite parties cannot refuse to settle the claim of the complainant by referring to the record of previous ailments with which the present disease has no connection or nexus. As such having issued the policy of insurance without having availed medical examination of the complainant prior to issuance of the policy amounts to waiver and as such opposite parties cannot refuse to settle the clam by referring to the documents regarding previous ailment with which the present ailment has no concern. We are of the view that insurance companies are only interested in procuring business this way or the other but at the time of the settlement they find one excuse or the other some of which are totally ignorable.
18. We placed reliance upon judgment of Hon'ble Supreme Court of India reported in 2022 LiveLaw (SC) 506 wherein it was held by the Hon'ble Supreme Court of India as under:-
"Insurance - Insurance companies refusing claim on flimsy grounds and/or technical grounds - While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. (Para 4.1)".
19. This Commission is of the view that even, in the present case opposite parties have failed to place on record any evidence or affidavit of any doctor regarding previous ailment for which the insured took treatment.
20. We also placed reliance upon judgment of Hon'ble Punjab State Consumer Dispute Redressal Commission, Chandigarh reported in 2014(3) C.P.J. 13 : 2014(87) R.C.R.(Civil) 264 wherein it was held as under:-
"Insurance Company failed to produce any evidence to show that appellant was suffering from said disease at the time of taking policy - No affidavit of any doctor or person who recorded history of patient".
21. Accordingly from the evidence on record it is fully proved that the repudiation of the claim is not justified and rather it amounts deficiency in service on the part of the opposite parties which is fully established.
22. Accordingly, present complaint is partly allowed and opposite party No.1 is directed to pay amount of Rs.2,50,200/- to the complainant alongwith interest @ 9% P.A. from the date of filing of the complaint till realization within 30 days from the date of receipt of copy of this order. No order as to costs.
23. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
24. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Dec. 01, 2023 Member
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