Haryana

Panchkula

CC/196/2015

KASHMIR SINGH GILL. - Complainant(s)

Versus

M/S BAJAJ ALLIANZ GENERAL INSURANCE. - Opp.Party(s)

ADS SHERGILL.

03 Mar 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                    

Consumer Complaint No	:	196 of 2015
Date of Institution	:	22.09.2015
Date of Decision	:	03.03.2016

                                                                                          

Sh.Kashmir Singh Gill aged about 74 years s/o S.Kartar Singh r/o 2439, Phase 10 SAS Nagar, Mohali.

 

                                                                                      ….Complainant

Versus

 

1.       M/s Bajaj Allianz General Insurance Limited A-Wing, 2^nd Floor, Bajaj Finserv building Survey N0208 B-1, Behind Weikfield IT Park Off Nagar Roa, Vima Nagar, Pune,-411014.

2.       M/s Bajaj Allianz General Insurance Company Limited, SCO 329 Ist Floor Sector, Panchkula (HR).

                                                                      ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

For the Parties:     Mr.ADS Shergill, Advocate, for the complainant. 

Mr.Rajesh Verma, Advocate, for the Ops.

 

ORDER

 

(Dharam Pal, President)

 

1.                          The complainant has filed the present complaint against the Ops on the grounds that he got Medi Claim Travel Insurance Policy No.OG-14-1201-9910-00002531 having validity from 17.08.2013 to 14.11.2013 from other party and same was extended for 2 months i.e. from 15^th November 2013 to 13^th January 2014. Thereafter the complainant got the same policy having validity from 24^th June 2014 to 21^st September, 2014 for a sum assured 50,000 US dollars and paid Rs.13,693/- as a premium. The complainant was declared fit by the recommended doctors of the Ops during medical examination. The complainant again extended his stay in USA and requested the OP No.2 for the extension of Medi-claim policy for 30 days and the policy was extended unconditionally from 23^rd September 2014 to 27 October, 2014 with policy No.OG-151201-9910-0003616. On 25.09.2014 the complainant felt ill and the disease was diagnosed as Hematuria but no medicines were prescribed for its treatment. He submitted all the documents qua medical claim with Op No.2 but his claim was repudiated on the ground of concealment of chronic/pre-existing disease.  The complainant also got served legal notice upon the Ops but to no avail.  The act and conduct of the Ops clearly amounts to deficiency in service and unfair trade practice on their part. In evidence the complainant has tendered affidavit Annexure C-A alongwith documents Annexure C-1 to C-9 and closed the evidence.

2.                          The Ops appeared before this Forum and filed written statement. It is submitted that the mediclaim travel insurance policy was issued by the Ops in the year 2013 and further extended in the year 2014 which was subject to terms, conditions, exclusions and limitations. It is submitted that in the policy schedule, it was mentioned that Medical Expenses, Evacuation & Repatnation of Remains (Emergency Dental Pain relief included upto US$500), any one illness limit was upto USD10000, any one accident limit upto USD20000 and deductible USD100 etc. It is further submitted in the policy that the policy has been extended from Policy No.OG-15-1201-9910-002146 so that total duration of stay of overseas was of 120 days including the extended period policy. It is submitted that the policy excluded for any claims in respect of any disorder, injury, diseases, disability or treatment whether directly or indirectly caused by or complications of or attributable to break period 22.09.2014 any other ailments or claim existing on or before the commencement date. It is submitted that the policy was issued subject to the terms contained in the policy schedule and the claim was payable as per the terms of the policy, if the claim was admissible under policy and the liability was also payable as defined under the limits of the policy schedule. It is submitted that the complainant was suffering from pre-existing disease at the time of taking of the policy which was concealed by the complainant. It is submitted that the as per the medical records of the Emergency Department Arrival Information dated 25.09.2014, the complainant specifically mentioned blood in the urine for 4-5 days and also the provider notes of Jennifer Cronesell dated 25.09.2014 mentioned that the episode of blood in urine started in past 7 days. It is submitted that the complainant had taken the insurance policy from 23.09.2014 being fully aware that he was suffering from serious medical condition before the start of the policy. It is submitted that the medical condition and complication arose from the Hematuria before the commencement of the policy and the same was not payable under the policy under clause 2.4.13 as defined that

“Clause 2.4.13 Any Medical condition or complication arising from it, which existed before the commencement of the policy period or for which care, treatment or advise was sought, recommended by or received from a physician”.

It is submitted that Overseas Travel Insurance Claim Form was submitted by the insured on 02.01.2015 under policy No.OG15-1201-9910-00003616. It is submitted that the Health Administration team of the Ops after receiving the documents had already sent intimation to the insured dated 15.12.2014 that the required documents were not submitted and the claim would be closed without payment. It is submitted that the claim was registered on 26.09.2014 as per the letter of claim closuer letter dated 15.12.2014 issued by Travel Health Administration team of the Ops. It is submitted that after scrutinizing the documents submitted by the complainant, the claim of the complainant is not payable under the terms of the policy. It is submitted that doctor has put many questionnaires’ with respect to health, pre-existing ailments of complainant before issuance of policy but complainant has not disclosed pre-existing ailments to doctor as such the claim of the complainant for payment of the amount as demanded by the hospital from the complainant was not payment by the Ops. Thus, there is no deficiency in service on the part of Ops and prayed for dismissal of complaint with costs. In evidence the complainant has tendered affidavits Annexure R-A & R-B alongwith documents Annexure R-1 to R-7 and closed the evidence.

3.                          We have heard learned counsel for the parties and have perused the case file carefully.

4.                          After hearing the arguments advanced on behalf of both the parties and the material available on the case file it transpires that the insurance company has wrongly and illegally repudiated the claim of the complainant. The fact regarding obtaining of Medi Claim Travel Insurance Policy from the OPs is not disputed. The main objection on behalf of the OPs is that the assured/complainant had intentionally withheld the information regarding his state of health from the insurance company at the time of taking insurance policy.  In the present case in order to get business the insurance company had issued the insurance policy by accepting the proposal form after taking huge premium but when the insured felt ill and corresponding for settling the claim by the complainant had been made then the insurance company repudiated the claim of the complainant by taking a plea that the life assured had concealed the material information about the status of his health and he was having pre-existing disease. The complainant in his complaint has specifically mentioned that at the time of taking policy he was declared fit by the recommended doctors of the Ops during medical examination, therefore, the Ops are ceased to take such plea regarding pre-existing disease. The insurance company is not suppose to get only premium but it also liable to act fairly without taking the benefits of the weaknesses of the assured and it is also liable to indemnify all the responsibilities for which the premium has been received.  The Ops in their reply have mentioned that the doctor has put many questioners with respect to health, pre-existing ailments of the complainant before issuance of policy but he had not disclosed the same. Had it been so then it was for the Ops to reject the claim immediately without taking any further step qua issuing of policy but the Ops on one had received the premium and on the other hand violated the terms and conditions mentioned in the policy.   For repudiating an insurance claim, it is not sufficient for insurer to say that the statement made by the insured regarding his health in proposal form was inaccurate or false. In the present case the insurance policy and the liability of the insurer under the terms and conditions of the policy is admitted. It is also established that the insured felt ill during the subsistence of the policy. Only controversy is as to whether the insured had pre-existing disease and that the burden of proving the pre-existing disease is on the insurer.  The insurance company had taken the plea of pre-existing disease therefore, the burden to prove the same lies on it. Hon’ble National Commission in case titled as LIC of India Vs. Dr.P.S.Agrawal, I 2005 CPJ 41 has held that the onus to prove that there was material concealment of any disease which directly proved fatal, would be on insurance company to justify its act to repudiate the claim. The burden of proof, therefore, is on the insurer to prove material concealment and justify the ground for no claim. Hon’ble National Commission has also taken the same view in judgment dated 11.01.2016 passed in case titled as Satish Chander Madan Vs. M/s Bajaj Allianz General Insurance Company Limited Revision petition No.3619 of 2013.  The Ops have even failed to bring the treating doctor before this Forum to depose that the complainant was having pre-existing disease. It is worthwhile to mention here that now-a-days people face problem like acidy, indigestion, back pain, headache and different such symptoms may occur time-to-time with different levels of intensity. They, therefore, cannot be considered as disease, required to be enumerated in proposal form. In modern days a layman is not expected to know and disclose in the proposal form a disease unless and until he suffers from such a disease for which he had been hospitalized or undergone treatment. The act and conduct of the Ops reveals that instead of acting fairly the insurance company is trying to befool their customers. Further, as a matter of fact in reality, the insurance companies in India are functioning arbitrarily in monopolistic manner and they are bent upon to harass and humiliate the consumers and with a view to escape and avoiding its legal and factual liabilities to make the payment of sum assured are acting in dramatical, opposite of the principle of fair play and decency and in that series, it is not even carrying that its wrongly actions are causing wrongful losses to their consumers.  In the present case the insurance company is trying to avoid its liability by making one pretext or the other, which cannot be allowed to do so.

5.                          Keeping in view the facts and circumstances mentioned above we are of the considered opinion that there is deficiency in service on the part of Ops. Therefore, the present complaint is allowed and the Ops are directed as under:

  (i)    To pay Rs.7,60,000/- to the complainant  spent by him for treatment and tests during hospitalization alongwith interest @ 9 % per annum from the date of submission of claim till its realisation .

 (ii)    To pay an amount of Rs.20,000/- as compensation for mental agony, harassment

(iii)    To pay Rs.5,000/- as cost of litigation.     

 

The OPs shall comply with this order within a period of one month from the date its communication to it comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

Announced

03.03.2016     S.P.ATTRI         ANITA KAPOOR        DHARAM PAL

                       MEMBER                        MEMBER                  PRESIDENT

 

 

Note: Each and every page of this order has been duly signed by me.

 

    

                                 

                                                         DHARAMPAL

                                                          MEMBER