Punjab

StateCommission

A/242/2018

Bajaj Allianz General Insurance Co. Ltd. - Complainant(s)

Versus

Paramjit Kaur - Opp.Party(s)

Sachin Ohri

01 Apr 2019

ORDER

                                                     FIRST ADDITIONAL BENCH

 

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,    PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   First Appeal No.242 of 2018

 

                                                          Date of Institution    :  26.04.2018       

                                                           Order Reserved on  : 25.03.2019

                                                          Date of Decision      : 01.04.2019

 

Bajaj Allianz General Insurance Company Ltd., Head Office at GE Plaza, Airport Road, Verawada, Pune and 2^nd Floor, 5 B Block, Improvement Trust Complex, SCO 5 and 6 , Patel Chowk, Sardar Patel Nagar, Aman Vihar, Pathankot, Punjab through its Authorized Signatory Mr. Navjeet Singh, Assistant Manager Legal, SCO 156-159, 2^nd Floor, Sector 9-C, Chandigarh.

 

                                                                      ..Appellant/Opposite party          

                             Versus

 

Paramjit Kaur wife of Sh. Karam Singh, resident of Village Buter Kalan, P.O Qadian, Tehsil and District Gurdaspur.      

 

                                                                …..Respondent/Complainant

 

First Appeal against order dated 15.01.2018 passed by the District Consumer Disputes Redressal Forum,  Gurdaspur.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member

             Sh.Rajinder Goyal,  Member.

Present:-

          For the appellant                   :  Sh.Sachin Ohri, Advocate

          For the respondent               :  Sh.Dinesh Mahajan, Advocate.

         

          . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

                    Challenge in this appeal by appellant is to order dated 15.01.2018 of District Consumer Disputes Redressal Forum Gurdaspur, directing the appellants of this appeal to pay the insurance claim as per the governing terms of the Travel Age Health Insurance Policy  to respondent of this appeal, besides Rs.10,000/- as compensation and cost of litigation by partly accepting the complaint of respondent of this appeal. The appellants of this appeal are  opposite parties in the complaint before District Forum Gurdaspur and respondent of this appeal is complainant therein and they be referred as such hereinafter for the sake of convenience.

2.                The complainant Paramjit Kaur has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that she used to travel in foreign country United Kingdom and during every visit, she got herself insured with OP. Previously, during her visit to U.K , she got travel policy bearing no.OG-16-1202-9910-00003475 for the period 13 Nov. 2015 to 11 March 2016. During that period, no claim has been raised by her, as no problem occurred. She again went to U.K and got travel policy bearing  no.OG-16-1202-9910-00002920 for a period from 30 September 2016 to 27 January 2017 from OP after paying premium thereof. During her stay at U.K, she was hospitalized there on 11.01.2017 i.e. between the currency period of policy and was discharged therefrom on 13.01.2017. She received treatment for her inferior ST Elevation Myocardial Infraction disease. The intimation was  duly given to OP/insurance company, as the policy was  cashless,  but OP failed to make the payment to her and wrongly repudiated her claim, vide letter dated 30.03.2017. She is not a patient of hypertension, as alleged by OP. In the month of September 2016, she got treatment of her eyes from Satyam Prayogshala, inside Dr. Om Parkash Eye Institute Pvt. Ltd. Amritsar and at that time before giving treatment, she was medically examined there and found totality fit. She averred that her ECG was totally OK, but OP wrongly repudiated her claim. She alleged deficiency in service  on the part of OP. Therefore, she filed present complaint and prayed that OP be directed to pay her genuine claim for her above treatment and further to pay Rs.50,000/- as compensation for mental harassment and Rs.20,000/- as cost of litigation.

3.                Upon notice, OP appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that she has suppressed the material facts from the Forum.  She  has not approached this Forum with clean hands. The complaint is bad due to act and conduct of complainant. On merits, it was averred that she was insured with OP on 29.09.2016 for a period from 30.09.2016 to 27.01.2017 under Travel Age Policy. She  received  treatment for inferior ST Elevation Myocardial Infraction and was hospitalized at United Kingdom for  her above treatment for the  period from 11.01.2017 to 13.01.2017. Thereafter, she registered her above claim with OP and submitted claim documents in support thereof to  obtain claim amount from OP.  OP  observed that  insured had history of hypertension since four years , which was pre existing disorder in this case. The ailment for which she was treated was due to her complication of pre existing medical condition and as such, the policy did not extend the coverage for pre existing ailment of insured. The insurance is a contract between the parties and both parties are under obligation to obey/fulfill all terms and conditions thereof.   As per general conditions of Travel Age Policy, the claim of the complainant was not tenable , if ailment for which she was treated was due to complication of pre existing medical condition. As per clause 2.4 of the policy, the company shall be under no liability to make the payment care under in respect  of any claim directly or indirectly caused by, based on, arising out of or however attributed to any of the following:  As per clause 2.4.12 of the policy covers exclusion clause with regard to any medical condition of complication arising from it which extended before the commencement of the policy period or for which care, treatment or advice was sought was recommended by or received from a physician.  The claim of the complainant falls in exclusions clause of the policy, as such, her claim has been repudiated, vide letter dated 20.03.2017 by OP, as per terms and conditions of the policy, as complainant was at  fault in  concealing the material facts at the time of getting the policy from OP. OP denied any negligence or deficiency in service on its part and furthr prayed for dismissal of the complaint.

4.                The complainant tendered in evidence his affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-13 and closed the evidence.  As against it; OP tendered in evidence affidavit of Navjeet Singh Authorized Signatory as Ex.OP-1 along with copies of documents Ex.OP-2 to Ex.OP-17 and closed the evidence. On conclusion of evidence and arguments, the District Forum Gurdaspur partly accepted the complaint of the complainant by virtue of above order dated 15.01.2018. Dissatisfied with the order of the District Forum Gurdaspur dated 15.01.2018, opposite party now appellant, carried this appeal against the same.

5.                We have heard learned counsel for the parties and have also examined the record of the case. It is not in dispute that complainant  purchased travel policy bearing no. OG-16-1202-9910-00003475 for the period from 13.11.2015 to 11.03.2016 from OP against  payment of premium. She was hospitalized at U.K on 11.01.2017 during the currency of the policy and was discharged therefrom on 13.01.2017 for  inferior ST Elevation  Myorcardial Infarction thereat and was treated therefor this ailment. She lodged insurance claim with OP under cashless policy, but OP repudiated the same. She challenged repudiation letter dated 30.03.2017 issued by OP in this regard. This is the case put forth by the complainant in this case. OP’s version in this case is that as per terms and conditions of the policy, the pre existing diseases were not covered as per clauses 2.4 and 2.4.12  of the terms and conditions of the policy. This fact was admitted by OP that complainant was admitted at U.K Hospital for treatment of inferior ST Elevation  Myorcardial Infarction for the period 11.01.2017 to 13.01.2017. OP repudiated the claim of the complainant primarily on the ground that she had history of hypertension for the last four years, which was a pre existing disease of the complainant and fell under the exclusion clauses 2.4 and 2.4.12 of the policy. OP , thus, repudiated the claim of the complainant by virtue of letter dated 30.03.2017 on account of suppression of material fact of pre existing disease of the complainant in this case from OP at the time of taking the policy.

6.                From hearing submissions of counsel for the parties at length and perusal of record, we find that complainant positively stated in para no.6 of her affidavit as well as in the complaint that she was not a patient of hypertension. She further deposed that hypertension has no link with the above diseases, which suddenly befell upon her. She admitted this fact that she received treatment for her eyes from Satyam Prayogshala inside Dr. Om Parkash Eye Institute Pvt. Ltd. Mall Amritsar. She was found fit for the above treatment, even her ECG was also found OK thereat.  She further stated that no disorder in her health was discovered thereat,  when she took eye treatment from Dr.Om parkash at Amritsar. The Travel Age Policy is Ex.C-1 on the record. Ex.C-5 is travel policy identification and schedule on the record. Her ECG report is Ex.C-6 and record of her treatment is Ex.C-7 at Satyam Prayogshala of Dr. Om Parkash Eye Institute Amritsar on the record and Ex.C-9 is OPD card bearing no. PK070958 of complainant.  Ex.C-10 is eye treatment record of complainant and operative notes issued by Dr. Om Parkash Eye Institute Amritsar is Ex.C-11 and her cell count report is Ex.C-12 of complainant.

7.                To refute this evidence of complainant, OP relied upon affidavit of Navjeet Singh authorized signatory as Ex.OP-1  to the effect that complainant was a patient of hypertension for the last four years. She has not disclosed the fact of her  above pre-existing disease,  which is major cause for causing the ailment of inferior ST Elevation  Myorcardial Infarction. It has further transpired in the testimony of this witness that the claim of complainant being suppression of pre-existing disease of hypertension is liable to be excluded under clauses 2.4 and 2.4.12 of the policy. It has further appeared in his deposition that hypertension is proximate and directly linked cause of inferior ST Elevation  Myorcardial Infarction. Similarly, we have also examined other documents of OPs Ex.OP-1 to Ex.OP-17 on the record.

8.                  The main reliance of appellants is on Ex.C-9 (copy of record) of complainant by Dr. Om Parkash Eye Institute recording her to be a case of hypertension of four years. OP repudiated the claim of the complainant on the basis of this document as well as  the record of U.K Hospital. Ex.OP-11 and Ex.OP-15 are to the effect that she was treated for inferior ST Elevation  Myorcardial Infarction, which is directly linked with the disorder of Myorcardial Infarction.  It is conduct of the insured,  which leads to the cancellation of ‘contract of insurance’. If the contract of insurance is vitiated by misrepresentation or fraud in obtaining the policy, then it is liable to be avoided by the insurer. The consent  of the both the parties to the contract of insurance should be free and fair without any vitiation of misrepresentation, undue influence, coercion, fraud and mistake of facts. We have to examine this point, as to whether it was within the knowledge of complainant that she suffered from hypertension and she deliberately concealed this fact from OP, while taking this travel insurance policy fraudulently from OP. The entire controversy revolves around this point in this case between the parties. The contract of insurance is based on utmost good faith and both parties are expected to disclose the correct facts to each other before entering into contract of insurance. Herein, we have to examine as per requirement of Section 45 of Insurance Act, if the ailment of hypertension was within the knowledge of the complainant and she deliberately suppressed this fact from OP,  when she entered into this contract of insurance or not. Hypertension is undoubtedly silent killer, but many persons are not aware of this fact that they actually suffered from hypertension. Many persons go undiagnosed without being aware of the fact that they suffered from hypertension. OP relied upon record of Satyam Prayogshala  Hospital Ex.C-7, which is not by a renowned  institute in northern India like PGI, DMC, CMC and so on. This is by a private doctor and there is no affidavit of the above doctor or the original record to this effect on the file.  This is only photocopy placed on record in this regard. She has equally placed on record her ECG report,  but it did not establish that she suffered from any hypertension. Her bodily functions were found to be normal and thereafter she was operated for her eye ailment by doctor of Satyam Prayogshala.  There is no record for cataract surgery of complainant by Dr. Om Parkash, as to what medication she took for this hypertension. Has she been aware of the fact of hypertension on 01.09.2016 before taking this policy on 11.01.2017, she must have some medication thereof rand her history of medication for hypertension must have been reflected therein. Sometime a patient is too sensitive that his blood pressure temporarily rises on account of some impending surgery.  In this view of the matter, we have come to this conclusion that OP has not established it on the record that she was aware of the fact of suffering from hypertension herein when her ECG and ECHO had not contained any such abnormality in her. She can be said to have misled OP if she was aware of this disorder at the time of taking the contract. The reliance of counsel for appellant on law laid down by National Commission New Delhi in “Sonu versus Birla Sun Life Insurance Company Limited” reported in 2017(3) CLT 271 and “Bajaj Allianz Life Insurance Company Limited versus Raj Mittal” reported in 2015(4) (NC) CLT 379 and “SBI Life Insurance Co. Ltd. Versus Harvinder Kaur and another” reported in 2014(3) CPJ (NC) 552 have been duly examined by us. But we find that this fact has not been established on record that insured/complainant was aware of this fact that she actually suffered from hypertension and deliberately concealed this fact from OP,  while taking this travel insurance policy.  When she was not herself aware about the fact of alleged hypertension, how she could disclose it to OP at the time of taking the travel insurance policy. Consequently, we have come across no illegality and material irregularity in the order of the District Forum Guardaspur under challenge in this case.

9.                As a result of our above discussion, there is no merit in the appeal and same is hereby dismissed.

10.              The appellant  had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the respondent/complainant of this appeal by way of crossed cheque/demand draft after the expiry of 45 days. Remaining amount, if any, due shall also be paid to complainant by the appellant within 45 days from receipt of the copy of this order

11.              Arguments in this appeal were heard on 25.03.2019 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

12.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                       (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

 

                                                          (RAJINDER KUMAR GOYAL)

                                                                         MEMBER

                    

                                                                  

April  1 , 2019                                                             

(ravi)