IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 29th day of September, 2011.
Present : Sri. Jacob Stephen (President).
Sri. N. Premkumar (Member)
C.C. No.51/2010 (Filed on 26.03.2010)
Between:
Sosamma George, Aged 69,
W/o. George,
Attasseril Kallumkal House,
Varayannoor.P.O.,
Pullad, Thiruvalla Taluk.
(By Adv. G.M. Idiculla) ..... Complainant.
And:
1. The Manager,
M/s. Bajaj Alliance General Insurance-
Co. Ltd., 3rd Floor, Finance Tower,
Kaloor, Ernakulam – 17.
2. The Branch Manager,
M/s. Bajaj Alliance General Insurance-
Co. Ltd., Near R.T. Office,
Pathanamthitta.
(By Adv. Sam Koshy) ..... Opposite party.
O R D E R
Sri. Jacob Stephen (President):
Complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that she is a senior citizen aged 67 years traveled with her husband in a tour programme to Holyland arranged by Riya Holidays Pvt. Ltd. from 02.02.2008 to 13.02.2008. In connection with the said journey she availed Overseas Travel Insurance Policy of the 1st opposite party vide policy No.OG-08-1602-9910-00003178 by paying ` 1,200 as premium amount. Her journey started from Kochi Airport on 02.02.2008 at about 7.30 p.m. and she reached Sharjah Airport at about 10.30 p.m. on the same day. The night stay was arranged at Jormand Apartment Hotel at Sharjah and she reached at the hotel at about 11.30 p.m. While at her stay in the hotel, at about 2 a.m., she felt breathing difficulty and at about 3 a.m. she went to the local hospital at Sharjah and the doctor gave medicines to her breathing problem. Doctor opined that the breathing problem was due to smoke allergy. Doctor also allowed to continue her journey. At Sharjah hospital she had spent 300 U.S. Dollars for her treatment. Thereafter she continued the journey and reached Egypt. While she was in Egypt, she again felt breathing difficulty on 10.02.2008 and she was admitted at Al Salai International Hospital at Egypt where she had undergone various medical tests as part of the treatment for her breathing problem. The doctors of the hospital also opined that the breathing problem was due to allergy. The complainant’s treatment at Sharjah and Egypt were intimated to the opposite parties by the travel agent. At Al Salai Hospital Egypt she had incurred 1000 U.S. Dollars for her treatment. Besides she had also incurred 300 U.S. Dollars as taxi charges and other allied expenses. Opposite parties also collected all medical records pertaining to her treatment during her journey. But opposite parties have not paid the treatment expenses. Complainant reached Kerala on 13.02.2008 after her journey. Thereafter she had admitted at Amrutha Hospital to find out the cause of breathing problem. After elaborate medical examination doctors opined that her breathing problem was due to allergy and she had no other physical ailments. Thereafter on 25.03.2009 she issued an advocate notice to the 1st opposite party for settling her claim. But opposite parties sent a reply dated 30.04.2009 stating that the complainant is not entitled to get any claim as her ailment was exacerbation of Bronchial Asthma and the same is a pre-existing ailment. The complainant had no pre-existing disease as stated in the reply or she had not suffered any such diseases before. The repudiation of the complainant’s claim by the opposite party is a clear deficiency in service, which caused financial loss and mental agony to the complainant, and the opposite parties are liable to the complainant for the same. Hence this complaint for the realisation of her treatment expenses of ` 72,000 along with compensation of ` 10,000 and cost of ` 5,000.
3. Opposite parties entered appearance and filed their version with the following main contentions:- Opposite parties admitted the issuance of the policy in favour of the complainant and also admitted that they have received a claim form from the complainant in connection with her treatment during her trip to Holyland. Opposite parties processed the claim form of the complainant with reference to the terms and conditions of the policy. While going through the medical documents produced by the complainant, opposite party has noticed that her treatment was for bronchial asthma. As per the medical records, the said ailment of the complainant is a pre-existing disease, which is not covered under the policy issued in the name of the complainant. According to the opposite parties, the complainant had suppressed her pre-existing disease at the time of taking the policy. Suppression of real facts in the proposal form disentitles the claim of a policyholder. In this case, the complainant suppressed the real facts of her pre-existing ailments when she took the policy. Therefore she is not entitled to get any claim under the policy. So the repudiation of the complainant’s claim is legal. Therefore, opposite parties has not committed any deficiency of service. With the above contentions, opposite party prays for the dismissal of the complaint with their cost.
4. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
5. The evidence of this complaint consists of the oral depositions of PW1 and DW1 and Exts.A1 to A21 and B1 and B2. After closure of evidence, both sides were heard.
6. The Point:- The complainant’s allegations against the opposite parties is that the complainant’s claim for her treatment expenses was rejected by the opposite parties without any basis though she had a valid insurance policy of the opposite parties. In order to prove the case of the complainant, the complainant filed a proof affidavit along with documents supporting her claim. On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced by the complainant were marked as Exts.A1 to A19 and the documents produced by the opposite parties as per the order of this Forum were marked as Exts.A20 and 21 through DW1. Ext.A1 is the photocopy of the advocate notice dated 25.3.09 issued by the complainant. Ext.A2 is the reply of Ext.A1 dated 30.4.09 issued by the opposite party. Ext.A3 is the copy of the complainant’s passport. Ext.A4 is the copy of the policy certificate in the name of the complainant. Ext.A5 is the cash bill dated 12.2.08 issued by Lisie Hospital, Cochin in the name of the complainant. Ext.A6 is the cash bill dated 13.2.08 issued from Medical Emporium, Kochi in the name of the complainant. Ext.A7 to A18 are the photocopies of medical bills and treatment bills in the name of the complainant issued from different hospitals where the complainant had undergone treatment during her journey to Holyland. Ext.A19 is the medical certificate dated 13.1.2010 in the name of the complainant issued from Garneau Lung Laboratory INC. Ext.A20 is the photocopy of the insurance proposal form in the name of the complainant. Ext.A21 is the photocopy of the claim form in respect of this claim submitted by the complainant. On the basis of the evidence adduced by the complainant, the complainant’s counsel argued that the repudiation of the complainant’s claim is a deficiency of service and prays for allowing the complaint.
7. On the other hand, the contention of the opposite party is that the treatment obtained by the complainant is for Bronchial Asthma and as per the medical record submitted by the complainant she had been suffering for the said ailment for a very long time before she took the policy. At the time of taking the policy, she had purposefully suppressed this fact. Since the complainant’s ailment is a pre-existing disease the complainant is not entitled to get the claim as per the terms and conditions of the policy. So the rejection of the complainant’s claim is not a deficiency in service as alleged by the complainant.
8. In order to prove the contentions of the opposite party, the legal executive of the opposite party filed a proof affidavit in lieu of their chief examination. They have produced 2 documents in their favour. On the basis of the proof affidavit, the legal executive of the opposite party was examined as DW1. Out of the 2 documents produced by the opposite parties, the treatment record dated 7.02.08 in respect of the treatment of the complainant at Bethlehem Arab Society For rehabilitation was marked as Exts.B1 through PW1 and the terms and conditions of the policy in question is marked as Ext.B2 through DW1. On the basis of the evidence adduced by the opposite parties, the counsel for the opposite party argued for the dismissal of the complaint, as they have not committed any deficiency of service.
9. On the basis of the arguments and contentions of the parties, we have perused the entire materials on record and found that there is no dispute between the parties with regard to the issuance of the policy, validity of the policy and the treatment of the complainant during her journey to Holyland. The only dispute between the parties is with regard to the nature of the complainant’s disease. According to the complainant, she had no history of breathing problem prior to 2.2.08 and she felt breathing problem at first at the hotel room at Sharjah during her journey to the Holyland. According to the opposite parties, the alleged ailment of the complainant is a pre-existing disease as per the medical records submitted by the complainant and at the time of taking the policy she had suppressed this fact in the proposal form.
10. In order to substantiate the contentions, opposite parties is relying Ext.B1 and B2. B2 is the terms and conditions of the policy and B1 is a portion of complainant’s treatment records. In Ext.B1, there is a mention in the medical examination column as “a known case of B Asthma”. Opposite parties argument is based on this aspect. In our view the noting seen in Ext.B1 “a known case of B Asthma” alone is not sufficient for establishing the complainant’s ailment as a pre-existing disease. Further, Ext.A20 proposal form is totally blank, particularly in respect of the columns relating to the relevant declarations including the history of pre-existing diseases. The blank nature of Ext.A20 proposal form shows that the complainant had not made any declaration either positive or negative in respect of any pre-existing disease. At the same time, opposite parties has not given any importance in obtaining a complete and perfectly filled up proposal form before issuing the policy to the complainant. No care has been given by the opposite parties in issuing the policy to the complainant who is at the age of 68. The complainant has taken the policy for getting the medical expenses, if any, during her journey, and during her journey she was compelled to undergo treatments and had spent money. Therefore, we find that the rejection of the complainant’s claim is a clear deficiency in service. So the complainant is entitled to get her treatment expenses as per the terms and conditions of the policy taken by the complainant. But her claim was rejected by the opposite parties on the ground that the ailment of the complainant was pre-existing disease. The policy was issued by the opposite parties without complying the formalities for issuing the policy like this. They have also not anticipated their future risk at the time of issuing the policy. Further opposite parties had not adduced any cogent evidence to prove their contentions. In the circumstances, the rejection of the complainant’s claim by the opposite parties cannot be justified.
10. Since opposite party had no challenge against the amount claimed by the complainant. But the cash bills and receipts produced by the complainant for showing her payments are made by foreign currency of different countries. At the same time, the amount claimed in the complaint is calculated on the basis of U.S. Dollars. But the complainant had not produced any evidence to enlighten this Forum about the calculations and the exchange rate of the foreign currency, which she had paid at the hospitals. Therefore, we are not inclined to allow the second prayer in the complaint as such. However, complainant is entitled to get actual medical expenses she had spent during her journey.
11. On the basis of the discussions herein above, this complaint can be allowed with modifications:
In the result, the complaint is allowed as follows:-
(1) Opposite parties are directed to pay the amount in Indian
Rupees equivalent to the amount shown in Exts.A7 to A18
medical bills within 30 days from the date of receipt of this
order.
(2) Opposite parties are also directed to pay an amount of `2,500 (Rupees Two Thousand Five hundred only) as compensation and ` 1,000 (Rupees One Thousand only) as cost of the complainant.
(3) In the event of non-compliance of this order by the opposite parties, the complainant is allowed to realise the whole amount in Indian Rupees as ordered herein above with 9% interest from today till the whole realisation of the amount.
Declared in the Open Forum on this the 29th day of September, 2011.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Sosamma George
Exhibits marked on the side of the complainant:
A1 : Photocopy of the advocate notice dated 25.3.09 issued by the
complainant to the 1st opposite party.
A2 : Reply of Ext.A1 dated 30.4.09 issued by the opposite party to the
complainant.
A3 : Photocopy of the complainant’s passport.
A4 : Photocopy of the policy certificate in the name of the complainant. A5 : Cash bill dated 12.2.08 issued by Lisie Hospital, Cochin in the name
of the complainant.
A6 : Cash bill dated 13.2.08 issued from Medical Emporium, Kochi in
the name of the complainant.
A7 to A18 : Medical bills and treatment bills issued by different hospitals
where the complainant had undergone treatment during her
journey to Holyland.
A19 : Medical certificate dated 13.1.2010 in the name of the complainant
issued by Garneau Lung Laboratory INC.
A20 : Photocopy of the insurance proposal form in the name of the
complainant.
A21 : Photocopy of the claim form in respect of this claim submitted by
the complainant.
Witness examined on the side of the opposite parties:
DW1 : Alice John
Exhibits marked on the side of the opposite parties:
B1 : A portion of complainant’s treatment records
B2 : Terms and conditions of the policy
(By Order)
Senior Superintedent
Copy to:- (1) Sosamma George, Attasseril Kallumkal House,
Varayannoor.P.O., Pullad, Thiruvalla Taluk.
(2) The Manager, M/s. Bajaj Alliance General Insurance-
Co. Ltd., 3rd Floor, Finance Tower, Kaloor, Ernakulam – 17.
(3) The Branch Manager, M/s. Bajaj Alliance General Insurance-
Co. Ltd., Near R.T. Office, Pathanamthitta.
(4) The Stock File.
