Orissa

Cuttak

CC/47/2021

Sarada Prasad Nanda - Complainant(s)

Versus

M/s Bajaj Allianz General Insurance Company Ltd - Opp.Party(s)

Self

31 May 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DIUSPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                C.C.No.47/2021

Sarada Prasad Nanda,

S/O:Late Ganeswar Nanda,

Res. Of Plot No.2C/780/01,Sector-11,

C.D.A,Cuttack-753015.                                                                      ... Complainant.

        

                                                Vrs.

                            M/s. Bajaj Allianz General Insurance Company Limited,

Plot No.9/10,Satya Nagar,Bhubaneswar-751007.....Opp. Party.

                       

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    16.03.2021

Date of Order:  31.05.2022

 

For the complainant:            Self.

For the O.P.               :            Mr. B.K.Sahoo,Adv. & Associates.

 

Sri Debasish Nayak,President                                                  

            Case of the complainant as made out from the complaint petition in short is that the complainant while going abroad had purchased an overseas travel insurance policy from the O.P named and styled as M/s. Bajaj Allianz General Insurance Company Ltd. vide Policy No.OG-19-9906-9910-00064383.  The policy was named as “Travel Age Elite Gold(U$$200000)” with customer ID 141807074 with effect from 20.3.19 to 17.6.19 midnight.  Accordingly complainant had proceeded to Toronto, Canada and had reached there on 20.3.19.  On 26.3.19 the complainant suffered from the Cerebral Stroke and was admitted in the Emergency Department of the Oakville Trafalgar Memorial Hospital,Ontario,Canada for treatment.  The O.P insurer was contacted when the complainant was admitted to the hospital, who thereby had advised for cashless treatment.  The treating physician had advised  several tests for diagnostic purpose and accordingly the son of the complainant had deposited the required expenses even though there was cashless provisions and the complainant had no health issue or was never diagnosed any of the diseases like hypertension, diabetes etc even on the date of purchase of the policy.  After remaining as an indoor patient for 3 days in the said hospital, the complainant was discharged on 28.3.19 and he had to bear expenses to the tune of 13076.84 Canadian dollars through his son’s credit card even though he had provision for cashless treatment having health insurance.  The hospital authorities in order to get the subsequent payment amounting to 7496.19  Canadian dollars submitted necessary papers to the insurer but quite strangely the claim of the complainant as made was repudiated by the O.Ps through their letter dt.20.6.19 basing on Sec-3(14) of the “Standard Travel Prime” exclusion clause.  In the repudiation letter, the O.P has mentioned about the complainant’s past medical history to Diabetic mellitus type-2, hypertension arterial hibernation and the complainant was under treatment for the same.  According to the complainant, all these are incorrect and baseless and only reflected to deprive him from his legitimate claim covered under the policy with a malifide intention. The complainant thus alleges that the insurer O.P had maintained double standard in assessing the claim of the complainant, has adopted unfair trade practice by denying the cashless treatment as  due to the complainant and the claim which was reasonable amount of INR Rs.8,75,000/-.  As such, the complainant has filed this case claiming the said amount along with interest and cost of Rs.1,00,000/- towards mental agony and also with a prayer for any other relief as deemed fit and proper.

2.         The O.Ps have contested this case and have filed written version.  According to the written version of the O.P, the case is not maintainable which is liable to be dismissed with cost.  The O.P of course admits about the policy undertaken by the complainant and about his visit to USA and Canada.  The O.P has averred that when the complainant was hospitalised on 26.3.19, past medical history of the complainant revealed that he had Artial Fibrillation, Type-2 diabetes mellitus, hypertension, gout history.  It is for this, the O.P through his written version has urged that since because the complainant had suppressed his past medical history, the claim as advanced suffers in this context.  The O.P has relied on the decision in the case of Satwant Kaur Sandhu Vrs. New India Assurance Company Ltd. Vol-IV(209) CPJ 8(SC) wherein it is observed that the complainant should make true and full disclosure of information in the proposal form.  The insurance policy is a contract under the category of “Uberrimei Fidei”, meaning a contract of utmost good faith on the part of the assured.  So according to the O.P, the case of the complainant falls within the exclusion clause, condition no.2.4.12 which clearly states that the company shall be under no liability to make payment  under  introspect of any claim directly or indirectly caused by, based on, arising out of or howsoever at attributable to any of the “ 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”.  The O.P has also averred about the Ombudsman disentitling the complainant on the ground of non-disclosure of material facts.  The O.P admits about the typographical error as regards to the date of admission and date of discharge of the complainant in the hospital.  Accordingly the O.P has prayed to dismiss the complaint petition with cost.

            To support their respective cases both the parties have filed their respective documentary evidence.

3.         Keeping in mind the averments as made out in the complaint petition and that from the written version, this Commission feels it proper to settle the following issues in order to arrive at a proper conclusion in this case.

i.          Whether the case as filed is maintainable?

            ii.         Whether the complainant had any cause of action to file this case?

            iii.        Whether there was any deficiency in service on the part of O.Ps?

            iv.        Whether the O.P had adopted any unfair trade practice?

            v.         Whether the complainant is entitled to the relief as claimed?

Issue No.3 & 4.

            For the sake of convenience issues No.3 & 4 are taken up together first for consideration.  Admittedly the complainant had been to Canada after obtaining health insurance and travel insurance from the O.P.  It is not disputed that the complainant had to be hospitalised for cerebral stroke at Canada and had remained there for 3 days with effect from 26.3.19 to 28.3.19.  It is also not disputed that the complainant suffered from acute CVA presenting with right arm and leg weakness and left facial droop.  The O.P had repudiated the claim of the complainant when made, on the ground that the complainant had suppressed material facts while entering into the agreement and getting the policy in his favour by not reflecting the past medical history in the proposal form of the insurance policy.  So it is urged by the O.P that such suppression disentitles the claim as made by the complainant for which it has been repudiated.  Of course the O.P had gained supportive credence from the decision as cited above of our Hon’ble Apex Court.

            But one thing is to be seen here in this case before leaping to any conclusion that if the complainant had any such past medical history which he had suppressed and that is the cause for which he was medicalised at Canada.  When the O.P has taken the plea that by such suppression the policy of the complainant suffered for which the O.P had repudiated the claim when made by the complainant the O.P has not brought out the nexus in between the past medical history of the complainant and the present case of hospitalisation.  The onus lies on the O.P and it is the O.P to co-relate and establish that the past medical history of the complainant had been the cause for which the complainant was hospitalised and treated at Canada.  Simply taking such plea and repudiating the claim of the innocent consumer without establishing the plea taken through adducing proper evidence or by examining any appropriate medical expertised person so as to co-relate that the past medical history of the complainant yielded in hospitalising the complainant at Canada would not suffice. Thus, it can be never said here that simply by taking the plea that the complainant had pre-medical history without co-relating nexus to his hospitalisation at Canada; cannot be said to be fair trade to have been dealt by the O.P.  It is for this, we are of a considered view that in fact there was deficiency in service on the part of the O.P. in this case and O.P had adopted unfair trade practice.  Accordingly these two important issues are answered against the O.P.

Issue No.1 & 2.

            From the above discussion it can well be said here that the complainant has definite cause and his case is maintainable.  These two issues are answered accordingly.

Issue No.5.

            Accordingly this Commission is of the opinion that the complainant is entitled to get the relief as claimed.  Hence it is so ordered;

                                                            ORDER

            The case is decreed on contest against the O.P.  The O.P is hereby directed to clear all the medical expenses of the complainant as incurred by him while he was hospitalised at Canada together with pendentilite and future interest @ 9% per annum from the date of hospitalisation of the complainant till the final payment is made.  The O.P is further directed to pay a sum of Rs.1,00,000/- to the complainant towards mental agony and sufferings caused to him.  The O.P is further directed to pay to the complainant a sum of Rs.20,000/- towards the litigation expenses.  This order is to be carried out within a month hence.

Order pronounced in the open court on the 31^st day of May,2022 under the seal and signature of this Commission.

                                                                                                                                        

                                                                                                                             

                                                                                                                              Sri Debasish Nayak

                                                                                                                                        President

                                                                                                                       

                                                                                                                            

                                                                                                                         Sri Sibananda Mohanty

                                                                                                                            Member.