BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.117 of 2015

Date of Instt. 24.03.2015

Date of Decision :12.08.2015

Kasturi Lal aged about 70 years son of Ram Lal R/o WP-6A, Adda Basti Sheikh, Manjit Nagar, Jalandhar.

..........Complainant Versus

1. M/s Reliance General Insurance Company Limited, Regd.Office:-19, Reliance Centre Walchand Hirachand Marg, Ballard Estate, Mumbai, through its Chairman/Mg.Director.

2. M/s Reliance General Insurance Company Limited, Branch Office:- Ist Floor, Rattan Towers, Civil Lines, Near Namdev Chowk, Jalandhar through its Branch Manager.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.RK Bhalla Adv., counsel for complainant.

Sh.Vikas Gupta Adv., counsel for opposite parties.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act, against the opposite parties on the averments that the complainant purchased one Reliance Travel Care Insurance Policy, for senior citizen bearing No.2002542819110505 valid from 6.6.2014 to 4.12.2014 for a sum of $ 50,000/- from the opposite parties and the said policy included the coverage of all kinds of medical expenses including transportation, evacuation and repatriation during the above said period. The said policy was cashless policy and the complainant has paid the premium of Rs.21,905/- of the said policy. The said policy was having geographical coverage of US and Canada as the complainant was to visit Canada during that period. After the purchase of policy, the complainant visited Canada on 6.6.2014 and in the Calgary City the complainant suffered a seizure attack and due to that attack, the complainant was admitted in Alberta Health Service, where he was given treatment by the doctors and he remained admitted in the said hospital from 23.7.2014 to 25.7.2014 and after treatment, the complainant was discharged from the said hospital. The total expenses of the medical treatment and other charges was $ 8521.76. In addition to it, the complainant has paid about $ 204 for purchase of medicines etc. After that the complainant submitted the claim to the opposite parties and completed all the necessary formalities as required by opposite parties. On 15.10.2014, opposite parties asked the complainant to submit some more documents and accordingly the complainant also sent all those documents which were required by opposite parties. Inspite of completion of all the necessary formalities, opposite parties have not paid the amount of claim to the concerned hospital and the said hospital is again and again demanding the medical expenses from the complainant as well as his son namely Naveen Arora who is resident of Canada and they are forcing him to make the payment of above said amount. Inspite of the fact that the complainant had completed all the formalities, opposite parties was lingering on the matter on one pretext or other which resulted into deficiency in service on part of opposite parties. When the opposite parties was causing delay in making the payment of medical treatment, then the complainant got issued legal notice dated 2.3.2015 through his counsel to the opposite parties calling upon them to pay $ 8521.76 to Alberta Health Service, Canada alongwith $ 204 for the purchase of medicine and Rs.1,00,000/- as damages on account of harassment, mental tension and agony suffered by the complainant within a period of 10 days from the receipt of legal notice. The said notice was also sent through emails to opposite parties, but the opposite parties has repudiated the claim of the complainant and the said information regarding the intimation of the repudiation was sent to the complainant as well as his counsel by sending the said order through email on 11.3.2015. As per the email, the claim of the complainant was repudiated on the ground that the complainant has passed pertinent medical history of hyper-tension, chronic tachycardia and on the continuing treatment of the same. It was also told by the opposite party that the current presentation was the result of on going medicines of the complainant and as well as, hydrochlorothiazide for hypertension of complainant. It was also alleged that the complainant has not disclosed his past pertinent medical history of hypertension etc at the time of purchase of policy. In fact, the ground of repudiation of the claim is totally baseless and the same is just an excuse to devoid the legal liability of making the compensation. On such like averments, the complainant has prayed for directing the opposite parties to pay him 8725.76 Dollars. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed a written reply, inter-alia, pleading that the policy in question was obtained by the complainant from the opposite party by material concealment of facts which forced the opposite party to repudiate the claim. The complainant has not only deliberately and fraudulently suppressed his past history of hypertension and chronic tachycardia but also suppress the factum of regular medication taken by him for the same in the proposal form. Complainant deliberately and fraudulently suppressed the above material facts in the proposal form. Complainant was brought to Peter Lougheed Hospital on 23.7.2014 following a seizure attack with the background medical history of hypertension and chronic tachycardia. On evaluation complainant was diagnosed as having hyponatremia and his overseas medical records reveal that complainant is having past pertinent medical history of hypertension, chronic tachycardia and on continuing treatment for the same. In the opinion of overseas treating doctor of the complainant his current presentation was the result of his ongoing medicine hydrochlorothiazide, for his hypertension. On perusal, it is established that the complainant has not disclosed his past pertinent medical history of hypertension, chronic tachycardia and on continuing treatment for the same. It is submitted that as the ailment was a result, consequence of ongoing antihypertensive medicine hydrochlorothiazide i.e of undisclosed pre-existing conditions (hypertension) which was not disclosed in the policy, opposite party with regret informed the complainant that his claim is not admissible. In view of the above the claim has been denied vide the letter dated 11.3.2015. They denied other material averments of the complainant.

3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C12 and closed evidence.

4. On the other hand, learned counsel for the opposite parties has tendered affidavit Ex.OP/A alongwith copies of documents Ex.OP1 to Ex.OP13 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. Ex.C1 is policy schedule obtained by the complainant while going to Canada. As per policy schedule, the geographic coverage was including US/Canada. The sum assured in US Dollar was 50,000/-. It is not disputed that after visiting Canada in Calgary City, complainant suffered a seizure attack and was admitted in Alberta Health Service, where he was treated and remained admitted in that hospital from 23.7.2014 to 25.7.2014. The total expenses incurred by the complainant on medical treatment and other charges was $ 8521.76 and further he purchased medicines worth $ 204. The complainant submitted the claim with the opposite party insurance company but it repudiated his claim vide letter/email dated 11.3.2015 Ex.OP1 on the ground that he was having medical history of hypertension, chronic tachycardia and on continuing treatment for the same and his current presentation was the result of his ongoing medicines hydrochlorothiazide for hypertension but he has not disclosed his pre-existing condition i.e hypertension while obtaining the policy. Ex.OP5 is discharge summary. In the hospital, it was found that seizure attack was due to his recent start of hydrochlorothiazide. In the discharge summary, it is also mentioned hydrochlorothiazide was started one week ago. The complainant was admitted in the hospital on 23.7.2014 and discharged on 25.7.2014. The complainant went to Canada on 6.6.2014. This fact is there in his affidavit Ex.CW1/A. As per discharge summary Ex.OP5, he was admitted in the hospital on 23.7.2014 and further he started hydrochlorothiazide one week ago and was on Lisinopril in India. So it means that he started above medicine while in Canada i.e after obtainingthe policy. It may be mentioned here that hydrochlorothiazide is a diuretic and given in combination with other drug or alone for managing hypertension. So opposite party insurance company has repudiated the claim of the complainant mainly on the ground that he has not disclosed that he was suffering from hypertension and was on continuing treatment for the same at the time of obtaining the policy. Now the question which fall for determination is, whether the opposite party was justified in repudiating the claim of the complainant on this ground? In Birla Sun Life Insurance Co. Limited another Vs Sukhwinder Singh another, First Appeal No.714 of 2011 decided on 04.05.2011 by our Hon'ble State Commission in somewhat similar circumstances, it has been held that :-

"Admittedly the life assured in the present case had not disclosed if she was suffering from hypertension or from diabetes. The appellants have also produced the documents to show that the life assured was suffering from hypertension and diabetes. The question which arises for determination is whether that ground is sufficient for repudiation?

12. So far as diabetes is concerned, the settled law is that this is not a material disease and the Insurance Companies have no right to repudiate the insurance claim on its basis. Majority of the population in India suffers from diabetes but diabetes can be kept under control as this is a cureable disease. It was held by this Commission in First Appeal No.1674 of 2002 “L.I.C. of India and others vs. Ramandeep Kaur, and another” decided on 2.2.2009 as under:“

16. So far as the law on the subject is concerned it was held by the Hon’ble Supreme Court in the judgment dated 10.10.1995 recorded in “Biman Krishna Bose vs. United India Insurance Co.” Civil Appeal No.343 8 of 1995 that if a person is suffering from hypertension, the insurance claim of the legal heirs of such a person cannot be repudiated on the ground that the life assured had suppressed this information from the Insurance Company. Moreover hypertension is not a material disease which is fatal in itself

13. It was held by this Commission in the judgment reported as “Life Insurance Corporation of India vs. Sushma Sharma” 1(2008) CPJ 213 as under:“

18. So far as hypertension is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium.”

14. It was also held by this Commission in the judgment reported as “Lfè Insurance Corporation of India vs. Satwinder Kaur” 2008(2) CLT 405 as under:“

11. The settled law is that the Insurance Companies must have solid and convincing evidence to prove that the insured had suppressed material facts while filling the proposal form. The right of repudiation cannot be granted to the Insurance Companies on flimsy grounds or sketchy evidence. After all the Insurance Companies insure a person, take the premium and when it comes to making the insurance claim, they find out one or the other ground to reject the claim. Courts, therefore, have to be cautious while determining the rights of the parties and has to insure that the right of repudiation is exercised by the Insurance Companies judicially and on sound principles.”

7. Further in Bajaj Allianz General Insurance Co.Ltd Vs. Valsa Jose, 2012(4) CPJ (NC) 839, the Hon'ble National Commission relied upon authorities of Hon'ble Supreme Court and Hon'ble National Commission in this regard by observing as under:-

"Hon'ble Supreme Court in Mithoo Lal Nayak Vs. LIC of India, AIR 1962 SC 814, as also in Satwant Kaur Sandhu Vs. New India Assurance Co.Ltd, IV (2009) CPJ 8 (SC) = VI (2009) SLT 338= (2009) 8 SCC 316, has held that the test to determine as to what is a material fact is whether that fact has any bearing on the risk undertaken by the insurer. If the fact has any bearing, it is a material fact and if not, it is not material. In the instant case, the discharge summary from St.Josephs Hospital,USA relied upon by the appellant, merely states that respondent had been taking medicine for hypertension and for cholesterol which was reportedly normal. We are of the view that the fact that the patient was taking medicine for hypertension for some time does not amount to suppression of material fact because as is well known hypertension is usually a lifestyle disease and easily controlled with conservative medication, as in the instant case. There is no evidence that it was so acute or high that it was responsible for respondents subsequent Angioplasty or any other past major illnesses. A similar view has been taken by us in F.A.No.292/2007, Smt.Kamna Bajpal Vs. LIC of India, decided on 31.8.2012".

8. The ratio of above cited authorities is applicable on the facts of the present case. In our opinion, the opposite party insurance company was not justified in repudiating the claim of the complainant on the above said ground.

9. In view of above discussion, the present complaint is accepted and opposite parties are directed to pay $ 8725.76 Canadian Dollars or its equivalent in rupees as per exchange rate prevalent today to the complainant. The complainant is also awarded Rs.10,000/- as compensation and Rs.3000/- on account of litigation expenses. If the entire awarded amount is not paid within one month from the date of receipt of copy of this order, then opposite party insurance company shall be liable to pay interest @ 9% per annum on the entire awarded amount from the date of expiry of said period of one month till the date of payment. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

12.08.2015 Member Member President