KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NOS. 871/11 & 857/11
COMMON JUDGMENT DATED : 5/05/2012
PRESENT:
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
APPEAL NO. 871/11
1. M/s Bajaj Allianz General Insurance Co. Ltd.,
Ground Floor, Asoka plaza,
Viman Nagar, Najan Road, Pune.
2. The Manager, : APPELLANTS
M/s Bajaj Allianz General Insurance Co. Ltd.,
Mangalam Towers, T.B. Road,
Palakkad.
(By Adv. Sreevaraham G. Satheesh)
Vs
Sivadasan Pallichadayath,
S/o Sankara Menon, ‘Sujith’,
Bhavanagar, Kunnathurmedu, : RESPONDENT
Palakkad – 678013.
(By Adv. Radhika P. Gopinath)
APPEAL NO. 857/11
Sivadasan Pallichadayath,
S/o Sankara Menon, ‘Sujith’,
Bhavanagar, Kunnathurmedu, : APPELLANT
Palakkad Taluk, Palakkad District– 678013.
(By Adv. Radhika P. Gopinath)
1. M/s Bajaj Allianz General Insurance Co. Ltd.,
Ground Floor, Asoka plaza,
Viman Nagar, Najan Road, Pune.
2. The Manager, : RESPONDENTS
M/s Bajaj Allianz General Insurance Co. Ltd.,
Mangalam Towers, T.B. Road,
Palakkad.
(By Adv. Sreevaraham G. Satheesh)
COMMON JUDGMENT
SHRI. S. CHANDRA MOHAN NAIR : MEMBER
These appeals are preferred by the complainant and the opposite parties respectively against the order dated: 27.10.2011 of CDRF, Palakkad in CC 54/11. As per the impugned order, the opposite parties are under directions to pay to the complainant half of the amount claimed by the complainant ie; equivalent to 786.5 US dollars and Rs.1,000/- as costs of the proceedings within 1 month from the date of receipt of the order, failing which the complainant is entitled for interest also at 9% p.a from the date of the order till payment.
2. The complainant had approached the Forum stating that while going abroad he had taken a Travel Age Elite Silver Insurance Policy for a sum of US Dollars 50,000 from the 2nd opposite party and as per the terms and conditions of the policy, the opposite parties had assured the complainant that he would get the benefit of the insurance coverage if the complainant had to incur any medical expenditure in the United States. The complainant had stated that he felt some gastric problem and on 3.8.2011 he went to the Minnesota Gastroenterology for checkup and was advised to stay for observation and had to pay 198 US dollars for the treatment. It was also submitted that on 4.8.10 the complainant felt suffocation and uneasiness for which he went to Park Nicollect Clinic, Minneapolis and was kept under observation and for that treatment he had to pay some more amount and in total the complainant had spent an amount of 1573 US dollars for the medical treatment. It was alleged that the treatment was undergone as per the permission of the opposite parties and that when he made a claim for the disbursement of the amount, the opposite party repudiated the claim on the ground of Non Disclosure of Material Information and Pre Existing condition. Alleging deficiency in service the complainant prayed for directions to the opposite parties to pay the amount spent by him for the treatment he had undergone in the USA.
3. The opposite parties resisted the complaint by filing version wherein it was submitted that though the policy covered the sum of US dollars 50,000/- and as per the terms and conditions, the complainant was entitled to get the benefit of the insurance coverage for the medical expenditure incurred by the complainant in the United States, the complainant was not eligible to get the amount spent for any pre-existing diseases and also that the complainant did not disclose the material information regarding his health conditions while taking the policy. How ever, the opposite parties stated that they had sent a sum of Rs.4,522/- to the complainant towards medical expenditure incurred by him for constipation and it was the complainant who had rejected the claim. Submitting that there was no deficiency in service the opposite parties prayed for the dismissal of the complaint with cost.
4. The evidence consisted of the respective affidavits of the complainant and the opposite parties and Exts. A1 to A6 and B1 to B4.
5. Heard both sides.
6. The learned counsel for the appellant/complainant has argued before us that the Forum below was not just and correct in awarding only half of the amount even though the complainant was entitled for the whole amount. It is argued that the complainant had not concealed any material information from the opposite parties and that the treatment undergone by him was rightly included in the policy conditions. It is her very case that the District Forum ought to have found that the opposite parties were not correct in disallowing a major portion of the expenditure met by the complainant for the treatment in USA. She has submitted before us that the whole amount of 1573 US dollars or equivalent to Indian rupees ought to have been ordered to be paid by the opposite parties with interest, compensation and cost.
7. The opposite parties/appellants opposed the order by stating that the complainant is not entitled to even half of the amount spent by him. Inviting our attention to Ext. B2, certified true copy of the claim form, he has argued that the complainant had been under treatment for diabetics and cardiac problems. It is also argued by the learned counsel that the complainant had given the answer ‘yes’ to a question whether he has been treated for his illness before and the same is sufficient to come to the conclusion that the complainant had suppressed those facts while filling the proposal form. He has also a case that the complainant ought to have furnished the information while filling up the form and the non filling or blank columns cannot be a ruse to escape from the fact that the complainant had concealed many of the material information while taking the policy. He has further challenged the finding of the Forum below that at the time of issuing the policy the opposite parties have the responsibility to make the complainant to fill the necessary columns and it is his very case that the complainant ought to have disclosed the pre existing diseases while filling up the form. The learned counsel submitted before us that the directions of the Forum below are only to be set aside and they are liable to pay only Rs.4,522/- which the complainant had on his own accord rejected. The learned counsel has also relied on the decision of the Hon’ble National Commission in “Budhiben Pababhai Vs. LIC of India & Others I (2010) CPJ 92 (NC) where it is held that “ the contracts He of insurance are contracts uberrima fides and every fact of material must be disclosed. Otherwise, there is good ground for rescission of the contract”. It is argued by the learned counsel that the appeal preferred by the opposite parties is to be allowed and the order set aside.
8. On hearing the learned counsels and also on perusing the records it is found that nobody has a case that there was no insurance taken by the complainant while going abroad and the policy conditions covered disbursement of the expense incurred by the insured while abroad. However, the case of the complainant is that the opposite parties are liable to pay the whole amount expended by him in USA whereas the opposite parties would say that apart from the treatment at the first instance at Minnesota Gastroenterology department, the complainant is not entitled to the payment he had made for the subsequent treatment. On a perusal of Ext. A6 it is found that the chest pain, the complainant had, was not related to his heart. The observation reads as follows: “A typical Chest pain – you are having chest pain. It is called ‘a typical’ because the symptoms of your chest pain are different than those for “angina”(damaging heart pain.) Your symptoms and the tests we have done not confirmed that your pain is related to your heart.” The opposite parties would say that the complainant had undergone treatment for problems related to heart and the opposite parties are not liable to reimburse the same, since the complainant had undergone treatment for the heart disease earlier. Though in Ext.B2 it is stated that the complainant had been taking medicines for diabetics and cardiac problems, Ext. A6 would show that the treatments undergone by the complainant at Park Nicollect Clinic, were not for problems related to heart. In such a situation it is found that the complainant is entitled for the amount spent by him for the treatment in USA. The opposite parties are liable to pay the amount after usual reduction to the complainant.
In the result, appeal 857/11 is allowed. There by the opposite parties are liable to pay to the complainant the amount of 1573 US dollars after usual reductions within 2 months from the date of receipt of the order with cost of Rs.1,000/- failing which the amount shall carry interest at 9% p.a from the date of default till payment. Appeal 871/11 filed by the opposite parties stands dismissed.
Office is directed to send back the LCR along with a copy of this order to the Forum urgently.
S. CHANDRA MOHAN NAIR : MEMBER
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