IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present: Hon’ble Thiru. Justice R.SUBBIAH ... PRESIDENT
Thiru.R VENKATESAPERUMAL … MEMBER
F.A. No.921 of 2011
(Against the Order, dated 22.06.2011, in C.C. No.296 of 2008, on the file of the DCDRF, Chennai-South)
Orders pronounced on: 13 .09.2022
Kizhanantham Venkataraman Raman,
Old No.20, New No.8,
Thiruvalluvar Street,
Ayyappa Nagar,
Tiruchirapalli-620 021. ... Appellant /Complainant
vs.
M/s.Bajaj Allianz General
Insurance Company Ltd.,
No.25/26, Prince Towers,
4th Floor, College Road,
Nungambakkam,
Chennai-6. .. Respondent/Opposite Party
For Appellants : M/s.D.Sudhakar
For Respondent : M/s.N.Somasundar
This First Appeal came up for final hearing on 16.05.2022 and, after hearing the arguments of the counsels for the parties and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-
O R D E R
R.Subbiah, J. – President.
The unsuccessful complainant before the District Forum has filed this first appeal, challenging the order, dated 22.06.2011, passed by the DCDRF, Chennai-South, in C.C. No.296 of 2008, whereby, the complaint filed by him alleging service deficiency against the OP-Insurance Company/respondent herein came to be dismissed as devoid of any merit.
2. For the sake of convenience, the parties shall be referred to in the course of this Order, as per their respective rankings before the District Forum.
The facts, as projected in the complaint, may be concisely stated as follows:-
The complainant, before his visit to the U.S., subscribed to the Travel Insurance Policy provided by the OP under the plan 'Travellage' with coverage of the geographical area - worldwide, for himself and his wife/Usha Raman. On payment of the premium, a policy certificate was issued vide No.OG-07-1501-9910-00016188, indicating the date of its commencement as 01.05.2007 and the date of expiry as 27.10.2007 or the date of return of the insured, whichever is earlier. The said policy was further extended from 28.10.2007 to 24.02.2008. The complainant travelled to U.S., where he developed chest pain, for which, he was hospitalized at St.Luke's Episcopal Hospital at Houston, Texas, between 30.11.2007 and 04.12.2007. The said factum was duly intimated from U.S. to the OP and, after return, the complainant made a claim for Rs.17,49,042/- (40,822.54 US$) towards the medical expenses incurred in the U.S.. Since there was a delay in settling the claim, he issued a notice, dated 21.02.2008, to the OP, who issued a reply with false and untenable allegations stating that the diseases for which treatment was taken by the complainant fall under the exclusion clause. Non-settlement of the claim by the OP amounts to deficiency in service and, on that ground, he filed the complaint, seeking the District Forum to direct the OP to pay to him Rs.17,49,042/- with interest @ 18% p.a. from the date of claim till the date of realization towards overseas medical expenses and another sum of Rs.2.5 lakh towards damages, besides costs of the complaint.
3. The OP resisted the complaint by filing a written version, inter alia stating thus:-
The complainant had approached the OP for availing Travel Insurance Policy for his abroad visit during May-October, 2007. The policy was issued subject to specific exclusion of claim arising out of certain ailments mentioned therein. The complainant accepted the policy so issued and proceeded abroad and there was no dispute or objection raised by him regarding the terms and conditions of the policy. After return from his abroad trip, the complainant made a claim for the treatment taken by him in the US. The Discharge Diagnosis of the Hospital at US revealed that the complainant was given treatment for Myocardial Ischemia, Coronary Artery Disease and Diabetes Mellitus and the said diseases are specifically excluded by the Special Condition of the Policy. The OP is not liable to admit the claim under the Special Condition of the Policy. There was no delay in processing of the claim by the OP. Even while in U.S., the complainant and his family were advised that the claim was not payable and it was once again confirmed in the reply notice sent by the OP. The complainant, who had accepted the policy without any protest or dispute, is not entitled to claim for the treatment in view of the special condition. There is no negligence or service deficiency on the part of the OP and hence, the complaint is liable to be dismissed.
4. In order to substantiate the claim and counter-claim, both sides filed their respective proof affidavits and the complainant marked 7 documents as Exs.A1 to A7, however, no document was filed by the OP/Insurance Company. By the impugned order, the District Forum has dismissed the complaint, holding that the claim is inadmissible as per the special condition of the insurance policy and that the OP has not committed any deficiency in service. Hence, the present appeal by the complainant.
5. Heard the submissions of the counsels appearing for either side.
6. It is the case of the complainant that the OP never disputed his admission in the Hospital at U.S. or his treatment there or the medical expenses incurred by him, and their only defence is that the treatment taken by the complainant for myocardial ischemia, coronary artery disease and diabetes falls under the exclusion clause. Although the special condition of the Policy that runs to the following effect,
" This policy excludes for any claims attributable to diabetes / diabetic ketoacidosis / diabetic hyperosmolar disease - diabetes treatment related hypoglycemia / diabetic nephropathy including urinary tract infections / diabetic retinopathy, cardiovascular disease and cerebrovascular disease / gastroparesis / any other ailment existing on or before the commencement date. ",
no doubt excludes certain diseases, at the bottom of the policy, it is stated as follows:-
" We understand that this policy has been issued based on the information provided by you / your representative and the policy is not valid if any of the information provided is incorrect. We also understand that this policy does not cover any pre-existing illness or disability or conditions arising there-from. "
According to the complainant, the special condition shown in the body of the Policy that excludes the named ailments from the purview of claim, if read together with the text given at the bottom of the policy mentioning about pre-existing illness, leads to an ambiguity and the benefit of such ambiguity must go to the insured. In other words, in a case of ambiguity, it is trite, the contract of insurance shall be construed in favour of the insured. Further, the defence of the insurer that the special exclusion condition is mutually exclusive of the terms mentioned at the bottom regarding pre-existing illness cannot be construed to be a clarification for the reason that, by way of two different details at two different places of the same policy, the Insurance Company has resorted to a dubious design to confuse the insured and to ultimately reject the claim for their own business interests. By referring to a handful decisions including the one reported in 2022 Livelaw (SC) 443 (Narasingh Ispat Ltd. vs. Oriental Insurance Co Ltd. & Another), and by stating that the impugned order passed by the District Forum would in effect nullify the very purpose of taking insurance, the complainant would seek to interfere with the impugned order.
Per contra, on the side of the Insurance Company, it is stated that the Special Condition, which leaves no room for any doubt or ambiguity, excludes any claim attributable to the identified ailments during the currency of the policy viz., diabetes and cardio vascular disease, which is the exact ailment suffered by the complainant as per the discharge diagnosis. Diabetes and diabetic related diseases are referable to 'diabetes mellitus' and 'cardio vascular disease' is referable to myocardial ischemia & coronary artery disease, in short called heart diseases, as such, there cannot be any ambiguity over application of the special condition pertaining to the ailments for which treatment was taken by the complainant in the Hospital at the U.S. The risk of certain cardiovascular diseases may be increased by smoking, high BP, high cholesterol, unhealthy diet, lack of exercise and obesity. Such diseases having been brought within the realm of exclusion clause through a special condition, it goes without saying that the same need not be a pre-existing illness. Therefore, by conflating the special condition with the reference made to the pre-existing illness at the bottom of the Policy, one cannot argue that it leads to ambiguities so as to dilute the very tenor of the policy. It is the contention of the Insurance Company that a consumer can succeed only on the basis of proved deficiency of service having regard to the terms of the contact and if the deficiency is not established, the complaint must fail. According to them, it is found by the Insurance Company that the complainant has not produced relevant medical records in support of his claim although the claim is made for medical expenses under the Policy. As the ailments suffered by the complainant are excluded from the insurance cover by virtue of the special condition agreed upon by him which was operative during the currency and validity of the Policy, the OP has justly repudiated the claim and the said action cannot be construed to be deficiency of service. The Insurance Company has placed reliance upon a number of decisions including the one in R.W.H.Ghyaz Ahmed vs. New India Assurance Co. Ltd. & Ors. (2013 CPJ 23 NC), wherein, the National Commission highlighted the observation of the Apex Court to the effect that, in interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however, reasonable, if the parties have not made it themselves. According to them, here, the special condition is quite clear and unambiguous about the diseases excluded from the policy coverage and since the illness of the complainant fell within the special condition/exclusion clause, the repudiation of the OP running in line therewith cannot be found fault with. Thus, they sought for dismissal of the appeal by upholding the impugned order passed by the District Forum.
After a careful assessment, we are not able to endorse the points raised by the complainant's side for the reason that the special condition/exclusion clause is quite clear and it is not the case of the complainant that the illness for which he was treated in the US was outside the list of diseases mentioned in the Special Condition. Though it is contended that, by mentioning the pre-existing illness in the text at the bottom of the policy, the OP has given room for confusion and ambiguity and on that score, benefit must go to the insured, in our considered view, even a joint reading of the two details in the policy does not lead to any ambiguity in understanding the basic point about the exclusion aspect. A reading of the policy as a whole leads to a clear inference that the policy holder is not entitled to the claim for certain ailments including cardiovascular diseases and diabetes mellitus. Apart from that, for any pre-existing illness also, that is not mentioned in the Policy, a claim cannot be made. Therefore, we disagree with the line of submissions made by the learned counsel for the complainants.
7. In the result, the Appeal fails and it is dismissed as devoid of any merit, confirming the order, dated 22.06.1011, passed by the DCDRF, Chennai-South, in C.C. No.296 of 2008.
R VENKATESAPERUMAL R.SUBBIAH, J.
MEMBER PRESIDENT.
