CONSUMER DISPUTES REDRESSAL FORUM,PALAKKAD

Dated this the 31^st day of August, 2015

PRESENT :  SMT. SHINY.P.R, PRESIDENT

               :  SMT. SUMA. K.P, MEMBER                      Date  of filing : 05/04/2012

CC /165/2012

Baskaran Verkot

Koumudi Nilayam,

111/80 Vazhempuram,                                             :        Complainant

P.O.Karakkurussi,

Via Palakkad, Pin.678 595

(By Adv.K.Dhananjayan)   

                                                          Vs

1. M/s.Bajaj Allianz General Insurance Co.Ltd, 

    Regd. and Head Office at G.E.Plaza,                      :        Opposite party

    Airport Road, Yerwada, Pune,

    Maharashtra – 411 006

    Rep.by Authorised Signatory/Manager

2. Authorised Signatory

    M/s.Bajaj Allianz General Insurance Co.Ltd, 

    Regd. and Head Office at G.E.Plaza,                     

    Airport Road, Yerwada, Pune,

    Maharashtra – 411 006

   (By OP1 &2. Adv.Ullas Sudhakaran)

3. The Manager,

    Proprietor, M/s.Riyas Travels

    (Travel Agency)

    Main Road, Mannarkkad.

O R D E R

By Smt. Suma. K.P, Member,

The case of the complainant is that his claim for getting re-imbursement of the expenditure incurred by him for his treatment while he was abroad was repudiated by the opposite parties without any valid reason.  Complainant is a retired teacher and is now leading his retirement life.  Complainant decided to go to Newyork along with his wife for a short trip wherein his daughter is presently employed.  They have obtained a visiting visa and had gone to Newyork, USA through Kuwait Air ways.  As mandated by the visa condition the complainant had to take a travel insurance policy  at the time of booking flight tickets from the 3^rd opposite party. They have told and induced the complainant to take an overseas travel insurance policy.   The complainant had just accepted and have opted to take the insurance policy issued by opposite parties 1 and 2 known as Bajaj Allianz Travel Super Age Elite-45 $ To 50,000/-.  The period of the said policy is from     25/05/2011 to 22/08/2011 or the date of return of insured.  The total consideration for the policy was Rs.29,500/-. While the complainant was at her daughter’s residence he had developed sudden abdominal pain and vomiting.  Therefore he has been admitted on 29/05/2011 at Vassar Brothers Medical centre, Newyork for immediate treatment and relief.  On the Clinical examination it has been found that he was suffering from probable gallstones with mild pericholestic  infiltration.  The doctors at the Vassar Brothers Medical Centre, conducted surgery for umbilical hernia and gangrenous cholecystitis .  He has been discharged from the hospital on 01/6/2011. The surgery performed was Laparoscopic cholecystectomy for his treatment he had to spend an amount of US $ 33,391.96.  Complainant states that before his journey to USA on 25/05/2011 he had undergone a medical test on 19/05/2011 by Dr.Jayakumar, MD, Interventional Cardiologist, Thangam Hospital, Palakkad as a routine checkup.  On his clinical examination complainant was not having any diseases and was having sound health fit for Air travel and also to stay abroad in any adverse climate condition.  The hospital sought for the details of health insurance coverage to facilitate cashless facility at the hospital.  The complainant has shown the original insurance policy issued by the opposite parties 1 and 2.  The complainant submitted the copies of the policy and treatment details including bills for processing and necessary action to the hospital.  He has also sent a claim letter with all the details to the opposite parties 1 and 2.  Even after the receipt of the claim petition opposite parties 1 and 2 have not honoured the claim but denied the claim through a letter issued the complainant on 29/08/2011.  The reason stated by the opposite parties 1 and 2 for their repudiation of the complainant’s claim was “the present is preexisting in nature as major complication of the ailment occurred before the policy inception date and they have further stated that the complainant’s claim stands denied, as the claim falls under ”pre-existing conditions and non disclosure of material information.”   Even after that the complainant has requested for reconsideration of the claim.  But the opposite parties repeated the same.  The complainant had to returned home on 16/08/2011.  The complainant submits that he had undergone for a catheter angioplasty 4years ago (Year 2007) for blocked arteries in his heart.  But the present disease is not at all connected with the present sudden illness of acute cholecystitis umbilical hernia and gangrenous cholecystitis.  It is not an illness but it is to be considered as a sudden development and situation, which occurred without any previous symptoms.  The complainant has never suppressed any material fact regarding his previous illness.  The denial of the genuine claims of the complainant is baseless and is not at all justifiable.  The act of the opposite parties  amounts to unfair trade practice and deficiency of service.  Hence he had approached before this Forum seeking an order directing the opposite parties 1 and 2 to  pay Rs.18,69,952/- with future interest and compensation for the mental agony along with cost of this litigation  suffered by him due to the deficiency of service of the opposite party.

The notice was issued to the opposite parties for appearance. Opposite parties entered appearance and filed version denying all the allegations stated in the complaint. Opposite parties 1 and 2 admits that the complainant had approached them for an insurance coverage during his overseas travel and the complainant was issued a policy named Bajaj Allianz Travel Super Age Elite US $ 50,000/-, offering coverage up to US $50,000/- for a period from 25/5/2011 to 22/08/2011 and  that a sum of Rs.29,500/- was paid by the complainant as premium for the said policy.  It was issued subject to certain terms and conditions and limitations thereof.  The complainant had paid the premium to the 3^rd opposite party and the 3^rd opposite party had  only paid of Rs.29,170/- to OP 1 and 2 as premium for the said policy.  Opposite parties has no direct knowledge about the facts pleaded by the complainant regarding abdominal pain developed by the complainant while at his daughter’s home, treatment undergone by him etc.  The complainant had preferred a claim regarding the expenditure claim to have been incurred by him in connection with his hospitalization and treatment he had to undergone during his stay at USA.  The said claim was rightly repudiated by the company as the claim fell under Policy Exclusion Clause 2.4 & 2.4.12 “Pre-existing conditions and Non Disclosure of Material Information” Clause 2.4 reads “The Company shall be under no liability to make payment hereunder in respect of any claim directly or indirectly caused by, based on, arising out of or howsoever attributable to any of the following:”  Subclause 12 of C1.2.4 reads “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.” 

Complainant was diagnosed  as per the condition attached in the policy issued to the complainant.  The complainant is not legally entitled to get reimbursed for the expenditure incurred by him in connection with the treatment for any pre-existing disease.  As the policy issued by the insurer to the complainant was obtained by suppressing material fact, the said policy is void abinitio and does not create any liability over the insurer.  In the proposal form submitted by the complainant, he had deliberately suppressed the fact that he is diabetic and is suffering from cardiac problem and thereby induced the insurer to accept the proposal without knowing about the risk undertaken by the Insurer as per the policy issued to the complainant. As the policy issued by the Insurer to the complainant was obtained by suppressing material fact, the said policy is Void Abinitio and does not create any liability over the Insurer.  As per the conditions attached in the Policy issued to the complainant, the complainant is not legally entitled to get reimbursed for the expenditure incurred by him in connection with the treatment for any pre-existing disease.

The complainant was suffering from cardiac problem and diabetes at the time of submitting the proposal form and availing the policy and was mandatory for him to disclose about the health problems that he was suffering, the medicines he was consuming, the treatments that he had undergone to the Insurer  in the proposal form submitted by him.  The complainant deliberately suppressed these facts and the Insurer was prevented from making a clear assessment of the risk to be insured and from taking decision on whether an Insurance Cover was to be given and if so with relevant exclusions.

Gangrenous Cholecystitis, Umbilical Hernia connected complications claimed to have been suffered by the Complainant is nothing but a major complication of the Coronary Artery Disease, Type-2 Diabetes Mellitus and Hypercholestremia which the complainant was suffering from before the Policy Inception date and hence the expenses attributable to or arising out of or traceable to are complications of pre existing disease and is not payable under Policy Exclusion Clause 2.4 & 2.4.12.

Clause 2.4 of the Policy states that Company shall be under no liability to make payment hereunder in respect of any claim directly or indirectly caused by, based on, arising out of or howsoever attributable to any of the following as stated in Clause 2.4.12.

 Clause 2.4.12- 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.

Complainant’s medical history as per his medical report from overseas reveals that he had a past history of Hypertension, Coronary Artery Disease, Type 2 Diabetes Mellitus and Hypercholestremia.  The above stated pre existing medical condition of the complainant are the factors that ultimately led to Gangrenous Cholecystitis, Umbilical Hernia and connected complications and hence the Insurer is legally entitled to repudiate the complainant’s claim as per clause 2.4 & 2.4.12.

Complainant’s claim that Gangrenous Cholecystitis & Umblical Hernia is not connected with his existing ailments and that Gangrenous Cholecystitis is to be considered as a sudden development and situation and that he did  not suppress any material fact regarding his previous illness are all false, unsustainable and made for the purpose of substantiating his legally & factually unsustainable claims.

There is no unfair trade practice or deficiency of service on the part of the opposite parties 1 & 2 as alleged by the complainant.  Complainant is not legally entitled to get his unsustainable claim settled by the opposite parties 1 & 2.  Opposite parties have done nothing to cause any mental agony or trauma to the complainant as alleged by him and hence opposite parties 1 & 2 are not liable to pay an amount of Rs.20,00,000/- to the complainant under different heads claimed by him in the complaint.  Opposite parties 1 & 2 suspects that there is collusion between the complainant and the 3^rd opposite party and that is why the complaint has not claimed any relief against the 3^rd opposite party.

Complainant is not entitled for any of the reliefs claimed by him in the prayer portion of his complaint and he is liable to pay the cost of opposite parties 1 & 2 for having unnecessarily dragged them before this Hon’ble Forum  and   therefore the complaint has to be dismissed.

3^rd opposite party has filed version denying the entire contentions in the complaint and had stated that they are unnecessary party to the proceedings.  The 3^rd opposite party had to be exonerated from any of the liabilities if any claim is to be allowed in favour of the complainant.    The complainant filed a rejoinder to the version filed by the 3^rd opposite party and had stated that the complainant has taken the disputed insurance policy from 3^rd opposite party and they have accepted the amount of Rs.38,500/- for and on behalf of opposite parties 1 & 2.  The complainant has not sought any substantial relief from the 3^rd opposite party. 

Complainant filed chief affidavit. Opposite parties have also filed respective chief affidavits.  OP filed petition to cross examine the complainant.   Complainant filed the counter stating that he is 82 years of age and is having lot of physical ailments.  Opposite party’s counsel submits that interrogatory will be sufficient.  Hence petition was dismissed with a liberty to file interrogatory. OP 1 and 2  filed interrogatories and complainant filed answers.  The complainant filed petition for summoning Doctor to give evidence as a witness.  They had also filed application for cross production of document from the hospital.  They had also filed another application for appointment of Adv.Commissioner for examination of the Doctor.  Application was allowed and the Doctor was examined through Commissioner.  Complainant had also filed application seeking permission to cross examination of opposite parties.  Opposite parties  was cross examined as DW1.  Ext.A1- A10 was marked from the part of the complainant.  Ext.B1-B6 was marked from the part of the OP.  Complainant submits that he is not intending to cross examining OP3. OP1 & 2 filed application for examination of witness.  Witness was examined as DW2.  Evidence was closed and the matter was heard.

The following issues are to be considered.

1. Whether there is any suppression of material facts by the complainant. While he availed Ext.B2 policy from OP 1 &2.  ?
2. Whether the health problems for which complainant had undergone treatment were complications of his pre-existing disease?
3. Whether the repudiation of the claim was genuine?
4. Whether there is any deficiency of service from the part of opposite

Parties 1 & 2?

5. If so, what are the reliefs and costs?

 ISSUES 1 & 2

Evidence in the above case consist of oral evidence tendered by the complainant in the form of affidavit in lieu of the cross examination, oral evidence tendered by Dr.Jayakumar as PW1, then oral evidence of authorized signatory of OP1 & 2 as DW1 and oral evidence tendered by Dr.Kiran as DW2 and documentary evidences produced from both sides.  The case of the OP 1 &2 is that the claim was rightly repudiated for the reason that complainant had availed the said policy by suppressing the material facts regarding his pre existing ailments and that the health issues for which he had undergone treatment were nothing but complications resulting out of his pre existing ailments and that he is not entitled for reimbursement as per clause 2.4. 12.  The case of the 3^rd OP is that  they had never induced the complainant to avail policy issued by OP 1 &2.  Proposal form submitted by the complainant which was marked as Ext.B1, is having specific columns wherein the complainant is required to state about

1. the  illness/disease/ailment that he is suffering from or had ever suffered from up to the date of making proposal and also regarding his physical defect or deformity and also about its details.
2. Whether he was admitted to any hospital/nursing home/clinic for treatment or observation and about its details.
3. Whether he is under any medications and if yes its details
4. Whether he had ever claimed under his earlier travel policy? If yes details.
5. Name, Address & telephone number of his Doctor.

In the proposal form signed and submitted by the complainant to the above mentioned question the complainant has replied as “No” in the sense that he is not suffering from any illness and that is not taking any medication for any illness and that he had never been admitted in any hospital for treating any illness and that he has no family doctor or specialist.  Ext.B5 which is a history and physical report dtd.29/5/2011 and Ext.B6 which is the discharge and documentation clearly reveals that complainant had a past medical history of coronary Artery disease, type 2 diabetics, Hypercholesterolemia and hypertension  and that he had undergone angioplasty for blocked arteries in his heart and that he is taking medications for the same and that he is obese and that he consumes alchohol occasionally.  Complainant has deliberately concealed all these material facts in his proposal form submitted before OP 1 & 2.  It has been contended by the learned counsel for the opposite party that contract of insurance is a contract of atmost good faith.  In the present case, the insured has suppressed the material facts about his health and habits in the proposal form at the time of  taking of the policy.  The submission of the suppression of the material information itself violates the terms of the contract.  The learned counsel for the complainant submits that it is true that he had undergone for a Catheter Angioplasty 4 years ago i.e in the year 2007 for blocked arteries in his heart.  But the present disease is not at all connected with the present sudden illness of acute Cholecystitis and Umbilical Hernia.  It is to be considered as a sudden development and situation, which occurs without any previous symptoms.  The complainant has never suppressed any material fact regarding his previous illness.  Coronary angioplasty has not even have a remote nexus and connection with the present ailment in which he has treated.  Thus the denial of genuine claim of the complainant is baseless and is not at all justifiable.  The complainant has examined Dr.P.Jayakumar who has conducted cardiac angioplasty of the complainant in the year 2007.  The Doctor has categorically stated that umbilical hernia  is “it is a herniation of abdominal contacts through defect in the abdominal wall.  It is an abdominal state of body”.  To a question, put to the doctor, do you agree with if any one states that common known reason of Gangrenous Cholecystitis are diabetics and cardiac problem ?  The doctor has asserted and answered as No.  Umbilical hernia and its disease is on the abdomen and needless to state that cardiac disease and angioplasty are treated for heart and heart ailments.  Both the parts of the body are not having any direct connectivity or nexus.  It is entirely different parts of body and there is no common reason either directly or indirectly at all for umbilical hernia and cardiac disease. 

Even in the cross examination conducted by the learned counsel of the opposite party he has ruled out the possibility of any nexus between Umbilical Hernia and cardiac disease.  In a question i.e “is not cholesterol and obesity a major cause for umbilical hernia?  The answer is No, cholesterol is not cause obesity is a cause.

Opposite parties had filed questionnaire to the complainant.  Question No.1 put to the complainant was whether he had revealed about his pre-existing disease in the proposal form (Ext.B1).  The reply was that he had revealed about his preexisting disease.  The said answer is found to be false from the proposal form which was marked as Ext.B1.  The 2^nd question was whether he was suffering from Coronary Artery Disease , Type 2 Diabetes, Mellitus and Hypercholesterolemia & Hypertension prior to submission of proposal form.  The said question also the complainant has given a wrong answer.  Complainant’s own witness PW1 had deposed that the complainant had been taking medicines prescribed by him for Coronary Artery Disease , Type 2 Diabetes Mellitus and Hypercholesterolemia and hypertension for the last 7 years.  The complainant had also not revealed that he had undergone angioplasty in the proposal form. In the answers furnished he had stated that he had revealed the same to the travel agent (3^rd OP) who had filled up the proposal form and that the complainant had only affixed his signature in the proposal form.  Complainant being an educated man ought not have suppressed those facts in the proposal form and cannot wriggle out of the responsibility by pleading that he had only sign the proposal form.  The complainant in his answers to the questionnaire had admitted that he had informed  PW1 Dr.Jayakumar about his ailments and he was checked up by Dr.Jayakumar.  But the said witness had not issued any fitness certificate to the complainant.  The complainant has not produced the reports pertaining to tests claim to have been undergone by him and had not produced any test reports prior to his journey.  The opposite party had submitted that the complainant had induced them to issue Ext.B2 policy by suppressing the material facts  in the proposal form.   From the above mentioned facts and evidences it is viewed that the complainant had deliberately suppressed the material facts in the proposal form. Issue No.1 is answered accordingly.

According to the opposite parties Gangrenous Cholecystitis  which the complainant suffered from develops when severe inflammation interrupts the blood supply to the Gall Bladder.  Common known reasons for Gangrenous Cholecystitis are diabetes and cardiac problems.  Admittedly the complainant is suffering from Coronary Artery Disease, Type 2 Diabetes and Hypercholesterolemia and hypertension.  Hypercholesterolemia is a health condition wherein  the cholesterol level would be very high resulting in narrowing of blood vessels affecting the free flow and supply of blood to various organs of the body.  Cholesterol is basically undissolved fat in the blood that and they stick together and gain size and some turns into stones in gallbladder.  If these stones found in the gallbladder coupled with reduced blood supply to Gall Bladder due to Hypercholesterolemia and Coronary Artery Disease results in acute Gangrenous Cholecystitis   which is nothing but an infection cause to gall bladder due to reasons aforementioned.  As the complainant is also suffering from uncontrolled Type 2 diabetes mellitus the same aggravates the infection and thereby the infection becomes acute which requires surgical intervention and management as an inpatient.  Umbilical hernia is also a health condition which won’t develops suddenly and it takes atleast a month to become complicated.  If the complainant was subjected to a proper medical check up by PW1 as claimed by him, these health issues could have been diagnosed .    Though the complainant claims that he  was subjected to medical test by PW1 on 19/05/2011, no reports regarding his blood tests and other check-ups to which he is subjected to is not seen produced.  There is neither a fitness certificate nor documentary evidence regarding complainant’s physical fitness before his journey abroad.  The complainant had examined the Doctor to prove his contentions that the health issues suffered by him are not complications of his preexisting disease.  During cross examination PW1 admits that high level of cholesterol is one of the factors for formation of gallstones and that patient with type 2 diabetes Mellitus are more prone to Gangrenous Cholecystitis.  He had also admitted that obesity is a cause for umbilical hernia and that the complainant had been subjected to scan his umbilical hernia could have been diagnosed.  Opposite party submits that the statement of PW1 to the effect that Gallbladder stones would form suddenly is against settled medical findings.  PW1 claims that he had checked up the complainant on 19/05/2011 and found to be fit.  But the complainant  suffered acute Gangrenous Cholecystitis on 29/5/2011.  This fact will prove that complainant was having Gallbladder stones prior to his travel abroad,.  It is highly improbable that Gallbladder stones developed on the same growing size and effects gall bladder caused infection and the same become acute within a period of 10 days as tried to be proved by the complainant and his witness.  The evidence of PW1 is against settled theories of medical science.    According to the opposite parties the health problems for which the complainant had to undergone treatment and surgery are nothing but complications of his preexisting disease. But the complainant had contented that it is a symptomatic and is only a sudden development,  Considering the evidence tendered by PW1, it can be inferred that the health problem for which the complainant had undergone treatment were complication of his pre existing disease.  Issue No.2 is answered accordingly. 

Issue No.3 & 4

 Opposite parties had contented in their version that  the contract was void abinitio.  If the complainant had disclosed all the material informations about his disease in the proposal form submitted,  they ought not  have issued the policy to the complainant and  the complainant would not have travelled abroad due to the denial of insurance to him.  Since the complainant had not disclosed the material information about his pre existing ailments the opposite party did not had any opportunity to deny the insurance.  Hence the policy was issued to him.  Otherwise they would have denied the insurance at the initial stage itself without accepting the premium. Since they had contented that the policy itself is void abinitio, they ought to have returned  the amount collected towards premium from the complainant for the issuance of the policy.  Without doing so, they had committed deficiency of service from their part.

Issue No.5

In the light of the above discussions and considering the facts and circumstances of the above case, we are of the view that the complainant is entitled for refund of the paid up value towards the premium.  Hence we direct the opposite parties jointly and severally  to refund the amount of Rs.38,500/- (Rupees Thirty eight thousand five hundred only) being the amount collected towards payment of premium as evident from Ext.A10 to the complainant within 1 month from the date of receipt of this order failing which the complainant is entitled to get 9% interest for the said amount from the date of order till realization.  Considering the nature of the case, the parties shall bear their respective costs. 

Pronounced in the open court on this the 31^th  day of August, 2015.

                                                                     Sd/-

                                                                   Smt. Shiny.P.R

                                                                     President

                                                                        Sd/-                                                                                                       Smt. Suma. K.P

                                                                       Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext.A1 series - Medical bills issued by Vassar Brothers Medical Center, New York   (Photocopy)

Ext.A2- Original Policy issued by 3^rd opposite party for and on behalf of OP 1 and 2 to the Complainant dtd.23/05/2011

Ext.A3- Original letter of repudiation issued to the complainant by OP 1 and 2 dtd.29/08/2011

Ext.A4 -Original letter of demand for payment issued by OVAG international to the complainant dtd.04/04/2012.

Ext.A5- Relevant pages of discharge documentation issued by Vassar Brothers Medical Center to the complainant dtd.23/06/2011 (Photocopy Page No.1 of 36)

Ext.A6- Relevant pages of discharge documentation issued by Vassar Brothers Medical Center to the complainant dtd.23/06/2011  (Photocopy Page No.2 & 3 of 36)

Ext.A7- Relevant pages of history and physical reports issued by Vassar Brothers Medical Center to the complainant dtd.23/06/2011  (Photocopy Page No.4 and 5  of 36)

Ext.A8- Relevant pages of consultation notes issued by Vassar Brothers Medical Center to the complainant dtd.23/06/2011 (Photocopy Page No.10 & 11 of 36)

Ext.A9- Relevant pages of operative documentation issued by Vassar Brothers Medical Center to the complainant dtd.23/06/2011  (Photocopy Page No.12 and 13 of 36)

Ext.A10-Original Receipt issued by  Riya Travel & Tours Rs. 38,500/- to the complainant  dtd.24/05/2011

Exhibits marked on the side of opposite party

Ext.B1- Photocopy of Travel  Insure Proposal Form of Bajaj Allianz issued to complainant.

Ext.B2-Policy Copy and conditions of policy issued by OP

Ext.B3- Overseas Travel Insurance claim form dtd.6/11/2011 (Photocopy)

Ext.B4- Scanned letter dtd.29/08/2011 issued by OP

Ext.B5-Scanned copy of the History and Physical Reports dtd.29/5/2011

Ext.B6-Scanned copy of discharge documentation dtd.29/5/2011

Witness marked on the side of complainant

Nil

Witness examined on the side of opposite parties

DW1-Raneen.B.R.Kumar

DW2- Dr.Kiran

Cost Allowed

No cost allowed.