This case is coming for final hearing on 03.09.2014 in the presence of Sri C.R.Vasanth Kumar Advocate for the Complainant and of Sri D.Siva Prasad Advocate for Opposite Party and having stood over till this date, the Forum delivered the following:

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on behalf of the Bench)

1.     The factual matrix of the Complaint is that the Complainant while planning to travel abroad obtained a travel care insurance policy for senior citizen “Gold Plan” for a sum insured USD 250,000 i.e., about Rs.1,25,00,000/- from the Opposite party by paying necessary consideration of Rs.13,120/- at Visakhapatnam in favour of the Complainant and also in favour of his wife under separate policies.  The Opposite party informed the Complainant that, the Complainant can avail ‘Cashless’ facility in the hospital in the event of any eventualities at abroad.  The Complainant initially obtained the policy period cover for three months from 31.03.2011 to 29.06.2011 and then extended the same for another three months from 30.06.2011 to 28.09.2011 and for the third time five months 25 days i.e., 29.09.2011 to 21.03.2012 and the Opposite party also issued polices bearing Nos.1802512819000030, 1802512817000286 and 1802512819000155 respectively.  The Complainant stated that he proceeded along with his wife to Montreal, Canada for visiting his son and daughter-in-law and initially he planned to stay three months there, later he extended the same by another three months and after that he came to know about conceive of her daughter-in-law, then he again extended the policy for third time for five months 25 days.  The Complainant stated that there was no problem for the first two policy periods, but after 7 ½ months of complainant’s stay at Montreal on 14.11.2011 the Complainant had the symptoms of pain and discomfort in the chest and as such the Complainant’s son informed the Ambulance services, who immediately attended on the complainant at the residence of the complainant’s son and gave first aid and also took E.C.G and after seeing the E.C.G report and condition of the Complainant, they have informed the hospital authorities about the report and the condition of the complainant and later informed the complainant’s son that the complainant has to be admitted in the hospital and as such they have provided the oxygen facility and shifted the complainant to the emergency ward of cardiology division at Royal Victoria Hospital on 14.11.2011 at 9-00p.m.  The hospital authorities conducted the necessary tests and provided emergency treatment with all the medical tests and the Complainant was discharged from the hospital on the next day i.e., 15.11.2011, when the Complainants condition has improved and the Complainant prescribed the necessary medicines.  The Complainant’s son informed about the holding of insurance policy to the Hospital authorities at Canada, but they refused to accept the cashless facility treatment of the Opposite parties’ travel care policy and neither the Opposite parties nor their emergency service provider, Europe Assistance or their sister company at Canada made any facility in the cashless treatment facility, even though the Opposite parties have sister concern at Montreal.  The Complainant’s son informed the complainant’s hospitalization to the emergency service provider on 14.11.2011, who in turn allotted reference Number i.e., claim reference MO 19825.24.

2.     The Complainant stated that even though the Complainant was promised by the Opposite party regarding cashless facility, the hospital authorities at Canada insisted the Complainant for payment of all charges i.e., Hospital emergency admission charges, doctors consultation charges, Pharmacy Bill and ambulance service charges  and thus the Complainant incurred in all a sum of CAD 1731.66.  The Complainant initially informed the Europe Assistance India Pvt. Ltd., Mumbai through e-mail on 22.11.2011 and then sent all the original medical reports, cash receipts and claim forms to the Europe Assistance India Pvt. Ltd., Mumbai on 30.11.2011.  Then, it sent an e-mail on 24.12.2011 by stating that the Complainant claim for cashless and reimbursement case is under process and stated that as per the claim documents the Complainant’s claim falls out of the policy period as per the current policy No.1802512819000155 and also stated that they would process the reimbursement claim once the admissibility of the Hospitalization claim is finalized.  The Opposite party’s claims department was informed to the complainant that his policy was not in force at the time of complainant’s hospitalization, then, the Complainant immediately return back to his place to verify the documents to ascertain the particulars and suffered severe mental agony till such time, the Complainant verified the policies, then he informed the Opposite party that the policy is in force at the time of Complainant’s hospitalization and also sent a copy of the policy to the Opposite party.  On 31.12.2011 Opposite party sent an e-mail by informing the Complainant to submit the original treatment papers indicating the diagnosis and treatment taken, medical investigation reports and original bills and receipts towards medical expenses etc. But the  complainant stated that he already sent all the necessary documents to the Opposite party on 30.11.2011 and the same was informed to the Opposite party, these acts of the Opposite party clearly shows the irresponsible way of settling the claim by the Opposite party.  The Opposite party sent a letter on 09.02.2012 by reimbursement of amount of CAD 917.36 i.e., Rs.45,503/- as against the claim of Complainant i.e., CAD 1731.55, thus the Opposite party illegally deducted CAD 814.30 by stating that USD 50 (CAD 50.89) is the standard deductable for the sum insured of the medical expenses as per the policy benefit and CAD 631.43 (USD 620.38) deducted as expenses not an acute emergency expenses and CAD 131.98 (USD 129.68) deducted as related to preexisting conditions(diabetes). Then Complainant immediately addressed an e-mail dated 15.02.2012 by stating that the Complainant accepts the deduction of USD 50 (CAD 50.89) as it is the standard deductable amount and rejecting the other deductions made by the Opposite party and the Opposite party having acknowledged the e-mail sent a reply on 18.02.2012 and though informed the Complainant that the Complainant’s claim is under process and sent an e-mail dated 19.03.2012 once again reiterated the deductions made and the amount paid, but without giving the details sought by the Complainant, then, the Complainant vexed with the attitude of the Opposite party he made complaint to the grievance cell on 12.04.2012 but to no avail. 

3.     The complainant stated that no charges were collected by the hospital authorities in particular for any kind of test though many tests were conducted except charging emergency hospital admission registration charges CAD 549.  But the Opposite party even after repeated demands made by the Complainant did not informed that on what ground the deduction of CAD 814.30 was made.

4.     On 12.04.2012 the Complainant sent an e-mail to the Opposite party by stating that he is not encashed the cheque till then and that the Complainant intends to encash the same under protest without prejudice to the Complainant’s right to claim the balance different claim amount and even to that e-mal there is no response from the Opposite party.  The Complainant  actually booked the return ticket to India on 18.03.2012 but pre-poned the travel to 19.01.2012 as the Complainant and his wife’s presence were very much necessary as the Complainant’s son was expecting the delivery in the month of May, 2012 and though the Complainant was very sure of getting for further extension on account of delivery to complainant’s daughter-in-law as top priority will be given to the child birth and children by the government of Quebec, Canada.  Because of the  lethargic attitude and irresponsible attitude of the Opposite party the Complainant has to return back to India with heavy heart which clearly shows the deficiency in service on the part of the Opposite party. At that stage his daughter-in-law needs his wife’s assistance being a pregnant lady and her presence is very necessary as the Indian employees cannot afford to engage servants and the family members have to look after them. 

5.     The Complainant further stated that he and his wife could not have the pleasure of the company of their grand daughter who was born on 02.05.2012 and they have to satisfy only through internet photos.  This is of because of the attitude of the Opposite party.  Hence, the Complainant claimed the compensation of Rs.15,00,000/- as he has to incur a sum of Rs.5,00,000/- in the event of making their trip to see their grand daughter and her parents and the Complainant also has to incur high amount towards insurance policy as he reached 70 years of age.  In fact the Complainant as well as wife is not in position to travel abroad due to their health conditions and thus they lost enjoying their stay with grand daughter at Canada, these are all because of negligent attitude of the Opposite party.  Hence, this Complaint to direct the Opposite party;

a) to pay the balance claim amount due i.e., CAD 763.41 equivalent in Indian rupees as on the date of payment along with interest at 24% from 09.02.2012 till the date of payment,

b) to direct the opposite party to pay a sum of Rs.15,00,000/- towards compensation besides costs of Rs.10,000/-.

6.     On the other hand, the Opposite party filed its counter and denied the allegations mentioned in the complaint and pleaded that the Complainant is not a consumer and he does not come under the purview of Section-2(e) of Consumer Protection Act, hence the Forum has no jurisdiction to entertain the complaint.  As per the records of the Opposite party the Complainant obtained the policy for a period of 6 months valid from 29.09.2011 to 21.03.2012 and the policy issued to the policy holder with express terms and conditions attached to the policy itself and the sum assured was also clearly mentioned and also about the deductions(in USD), hence, the Complainant is binding on the conditions mentioned in the policy.  The Opposite party is not aware of treatment of the Complainant, but it received the claim intimation from the Complainant on 30.11.2011 and the Complainant sent e-mails to the Opposite party and the Opposite party replied and the requested the Complainant furnish necessary papers along with claim form, after receipt of necessary papers as per the express terms and conditions of the policy, the Opposite party processed the claim of the complainant and paid admissible amount to the Complainant after deducting the deductable amount as mentioned on the face of the policy conditions.  The Opposite party pleaded that contract of the insurance is based on the principle of utmost good faith, violation of said principle of law in any manner the contract of insurance become void ab-initio i.e., and the Opposite party’s liability is during the valid period only and not liable for any other claims arises after lapse of period of contract of insurance or out of policy period.                                                                          

7.     The Opposite party stated that there is no deficiency of service on its part as the Opposite party already paid the admissibility amount as per the policy conditions and it is not liable to pay the alleged amount of CAD 763.41 and compensation.  Hence, this complaint is to be dismissed.

8.     At the time of enquiry the Complainant filed evidence affidavit along with the documents which are marked as Exhibits A1 to A25. On the other hand, the Opposite party filed its counter, evidence affidavit and written arguments along with a document which is marked as Ex.B1.  Both the counsels reiterated their version.

9.     In view of the respective contentions, the point that would arise for determination is:-

Whether there is any deficiency in service on the part of the opposite party, if so can the complainant entitle for the reliefs prayed for?

10.    The fact that as per Ex.A1, Ex.A2 & Ex.A3 regarding issuance of policies by the Opposite party to the Complainant is not in dispute.  As per Ex.A1 & Ex.A2 the Complainant extended the policy period up to 28.09.2011.  Ex.A3 is the policy period for 29.09.2011 to 21.03.2012 is admitted by the Opposite party.  Ex.A4 is the receipt for CAD 549 dated 14.11.2011 regarding the emergency Hospital admission registration charges collected by hospital authorities.  Ex.A5 dated 15.11.2011 is HIPAA Authorisation for release of health related information.  Ex.A6 & Ex.A7 are the receipts for CAD 350 & CAD 150 dated 15.11.2011 respectively towards Doctors fees paid by the Complainant to the hospital authorities.  Ex.A.8 is the Pharmacy bill for CAD 131.43 and Ex.A9 is the Invoice and Receipt for CAD 419.25 dated 22.11.2011 regarding ambulance services.  Ex.A.10 & Ex.A.11 are the claim forms dated 22.11.2011.  Ex.A12 is the Release of Medical Records Authorisation dated 23.11.2011.  Ex.A13 & Ex.A14 are the Pharmacy bills for CAD 59.99 and CAD 79.99 respectively.  Ex.A15 is the letter issued by the Complainant on 30.11.2011 to M/s Europe Assistance India Pvt. Ltd., regarding the statement of Medical reports and original cash receipts for reimbursement and there the total claim was mentioned as CAD 1731.66.  Ex.A16 & 17 are the e-mail correspondences between the Complainant and the Opposite party.  Inpage-3 of Ex.A17 the Opposite party stated that as per the complainant’s claim documents, his claim false out of policy period.  As per this current policy No.1802512819000155 and the Opposite party also requested regarding the extension of policy of complainant after 28.09.2011 and there itself they also stated that the hospitalization case is under process with their operations department as they are waiting for medical documents form the hospital and they will process the Complainant’s reimbursement claim once the admissibility of the hospitalization claim is finalized.  Ex.A18 dated 31.12.2011 is the e-mail correspondence by the Opposite party to the Complainant regarding the submission of necessary documents.  Ex.A19 is the letter dated 09.02.2012 issued by M/s Europe Assistance India Pvt. Ltd., wherein they mentioned the amount claimed is CAD 1731.66 and the deductable CAD is 814.30 reimbursed INR Rs.45,503/- i.e., CAD 917.36 as against the Complainant’s claim.  Ex.A20 is the e-mail correspondence made by the Complainant to the M/s Europe Assistance India Pvt. Ltd., regarding the disappointment of the claim statement by the Opposite party.  But accepted the deduction of USD 50(CAD 50.89) is the standard deductable amount as per the said policy benefit but denied other deductions of CAD 631.43 and CAD 131.98 by stating that those expenses are not acute emergency expenses. Ex.A21 is the e-mail acknowledgment issued by the Opposite party by stating that the claim is under process.  Ex.A22 and Ex.A23 dated 19.03.2012 are the e-mail reply letters from the Opposite party stating that the deductions made by the Opposite party authorities are CAD 631.43 and 131.98 as expenses not an acute emergency expenses and as related preexisting conditions (diabetes) hence they deducted CAD 763.41 from the claim amount of the complainant.  Ex.A24 is the e-mail correspondence dated 12.04.2012 to the Opposite party issued by the complainant as accepting an encashing the partial settlement of cheque under protest by the Complainant as the Complainant is in dire need of money.  Ex.A25 is the e-mail letter dated 12.04.2012 to opposite party’s grievance redressal officer.

11.    The version of the Opposite party is that the policy was issued to the Complainant with express terms and conditions attached to the policy itself and the Opposite party received claim intimation from the complainant on 30.11.2011 and also stated about the principle of utmost good faith and violation of said principle of law in any manner, the contract of insurance became void abinitio.  Regarding this plea the Opposite party relied upon Ex.A22 & Ex.A23 wherein they mentioned that they deducted some insured amount because there is pre-existing illness diabetes to the Complainant, but the Opposite party did not substantiate this plea by filing any document.  Hence in our view mere contention is not enough to deduct that amount under this principle.

12.    Another plea as per Ex.A18 by the Opposite party is that as on 31.12.2011 the original documents are not received by them, but all the originals were submitted by the Complainant on 30.11.2011 as per Ex.A15 and also the Opposite party admitted in its counter regarding the receipt of necessary documents on 30.11.2011, but again they issued a letter on 31.12.2011 regarding the submission of original documents which clearly shows negligent attitude of the Opposite party.  The Policy conditions filed by the Opposite party i.e., Ex.B1 in page-1 mentioned that “Medical necessary treatment” is any treatment, tests, medication, or stay in hospital or part of stay in a hospital which must have been prescribed by a medical practitioner” which is one of the policy condition and as per that condition, the medical practitioner only gave treatment to the Complainant and the Complainant approached the Opposite party to settlement the claim amount, but the Opposite party after submission of claim form along with original documents they issued cheque after deduction of CAD 814.30 on 09.02.2012 i.e., nearly after more than two months, that too, after deducting some amount from the total claim amount.  As per the Opposite party’s rules, terms and conditions the deduction regarding CAD 50 is the standard deductable for the sum insured, all the medical expenses as per the policy amount, but remaining CAD 31.43 and 131.98 deducted by them, stating that “expenses are not acute emergency and has related to preexisting conditions” which is not justifiable, as there is no such condition in the terms and conditions of the Opposite party’s policy.  Hence, the Opposite party is liable to pay CAD 763.41 equivalent in Indian rupees as on the value of today i.e., 24.09.2014 along with interest 9% p.a from 09.02.2012 i.e., when the M/s Europe Assistance India Pvt. Ltd., i.e., agent of the Opposite party send cheque towards full and final settlement.

13.    Since the allegations made by the Opposite party regarding preexisting decease etc., the burden of proof was upon Opposite party(Insurance company).  But the Opposite party miserably failed to adduce sufficient evidence in support of its allegations.  It will be unfortunate if insurance companies repudiate genuine claims on such technical and flimsy grounds.  Most of the innocent insured will be victims and beneficiaries will be deprived of fruit of insurance claims. 

14.    The relief claimed by the complainant regarding compensation, the Complainant claimed Rs.15,00,000/- towards compensation for causing mental agony and financial hardship because of the acts of Opposite party.  The plea made by the complainant regarding this, is the Opposite party issued policy on cashless facility but there in Canada, the hospital authorities not allowed and he paid the amount towards hospitalization charges and the Complainant and his wife want to stay there as his daughter-in-law was conceived after 10 years of their marriage, that is why he extended the policy third time for 5 months 25 days but unexpectedly he fell ill and took treatment and send all necessary documents to settle the claim amount to the Opposite party, but the Opposite party without verifying bluntly states that the claim falls out of the policy period and the policy was not in force at the time of Complainant’s hospitalization.  Then, the Complainant after discharging from the hospital he preponed his journey from 18.03.2012 to 19.01.2012 even though their presence is very much necessary as the Complainant’s daughter-in-law is carrying child. 

15.    No doubt the Complainant and his wife suffered mentally because of preponment of their journey, when their presence is necessary.  No one can count this emotional feelings in terms of money, whatever it may be because of the lethargic and negligent attitude of the Opposite party, the Complainant and his wife has to come back to India unintentionally.  Hence, the Complainant deserves proper compensation who suffered due to the negligent attitude of the Opposite party.  The decision made by the Honourable Supreme Court and the National Commission that the Complainant’s are not entitled for both compensation and interest, the Forum while allowing the Complaint of the Complainant regarding the refund of amount with interest the Complainant cannot entitled for the compensation as per 2013(3) CPR 333 NC Between B.T.Shiva Prasad Vs. President/Vice-President, VYALIKAVAL Housing Board Co-operative Society Ltd. In R.P.No.3265/2011, this view has been taken by the National Commission in Mohit Bindal Vs. Haryana Urban Development Authority and New India Insurance Company Ltd., Vs Tauseful Hassan & another wherein it observed that “the Complainant cannot be given double benefit of compensation as well as interest on the insured amount.  Interest be taken as by way of compensation”.

16.    But here in this case, there is disturbance regarding the emotional feeling which we cannot count in terms of money. Moreover, the Complainant missed the pleasure of company of their grand child at the time of birth and they have to spend so much amount if they want to visit again at this fag end of their life. 

17.    Award of Compensation is for indicating the strength of law.  It acts as a check on arbitrary and capricious exercise of power.  The Complainant’s claim regarding compensation is on higher side. No doubt, the attitude of the Opposite party ads a shocking dimension to the situation and the Complainant have to preponed their journey to India in unavoidable circumstances, thus the Opposite party twiddle their thumbs unaware of the loss they are going to cause to the Complainant and also failed to pay the total claim amount and causes financial hardship also to the Complainant and his wife, hence allowing Rs.50,000/- towards compensation is just and reasonable. 

18.    Accordingly, this point is answered holding that the Opposite party is liable to pay CAD 763.41 equivalent in India rupees as on today i.e., 24.09.2014 along with 9% interest from 09.02.2012 within three months, failing which to pay the same with 12% interest besides compensation and costs. 

19.    In the result, the complaint is allowed directing the Opposite party to pay CAD 763.41 equivalent to Indian Rupees as on today along with 9% p.a. interest from 09.02.2012 within three months to the Complainant, failing which to pay the same with 12% p.a. interest till the date of payment.  The Opposite party is further directed to pay Rs.50,000/- towards compensation besides costs of Rs.3,000/-.

Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 25^th day of September, 2014.

   Sd/-                                                                  Sd/-

Member                                                     President (FAC)

                                                        District Consumer Forum-I

                                                                        Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Party:

   Sd/-                                                                  Sd/-

Member                                                     President (FAC)

                                                        District Consumer Forum-I

                                                                Visakhapatnam

//VSSKL//