Chandigarh

StateCommission

A/90/2015

HDFC ERGO General Insurance Company Limited - Complainant(s)

Versus

Rajinder Partap Singh - Opp.Party(s)

Sanjeev Goyal & Gaurav Bhardwaj, Adv.

11 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

First Appeal No.	90 of 2015
Date of Institution	23.04.2015
Date of Decision	11.06.2015

 

HDFC ERGO General Insurance Company Limited, SCO No.124-125, Sector 8-B, Madhya Marg,  Chandigarh, through its Authorised Signatory Pankaj Kumar, Manager Legal, available at Steelar IT Park, Tower-1, 5^th floor, C-25, Sector 62, Noida – 201301 (UP).

                                        …..Appellant/Opposite Party.

                                Versus

Rajinder Partap Singh S/o Wirsa Singh, r/o H.No.2652/1, Sector 47-C, Chandigarh.

                                        …..Respondent/Complainant.

BEFORE:    SH. DEV RAJ, PRESIDING MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh.Gaurav Bhardwaj, Advocate for the appellant.

Sh.Rajinder Partap Singh, respondent in person.  

 

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 23.02.2015, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it allowed Consumer Complaint bearing No.544 of 2014, filed by the complainant, with the following directions:-

“13.     In the light of above observations, we are of the concerted view that the Opposite Party is found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party, and the same is allowed, qua it. The Opposite Party is directed to:-

[a]  To pay the claim amount of Rs.1,37,183.40P along with interest @9% p.a. from the date of lodging of the claim i.e. 19.11.2013 till it is paid;

 

[b]  To pay Rs.25,000/-on account of deficiency in service and causing mental and physical harassment to the Complainant; 

 

                  [C] To pay Rs.10,000/- as cost of litigation;

 

14.      The above said order shall be complied within 30 days of its receipt by the Opposite Party; thereafter, it shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] of Para 13 above from the date of lodging of the claim i.e. 19.11.2013, till it is paid. The compensation amount as per sub-para [b] of para 13 above, shall carry interest @18% per annum from the date of institution of this complaint, till it is paid, apart from cost of litigation of Rs.10,000/-. “ 

 

2.             The facts, in brief, are that the complainant took a Travel Insurance Policy from the Opposite Party, for his wife namely Mrs.Raj Kahlon, who was to visit Canada. It was stated that after reaching Canada, due to extreme cold in Calgary (Canada), the wife of the complainant felt breathlessness and she was taken to Emergency Hospital, Alberta. It was further stated that the complainant spent an amount of Rs.1,37,183.40P (about $2286.39) on the treatment of his wife for six months i.e. from 25.09.2013 to 23.03.2014. It was further stated that the claim bearing No.4 DEL 009108 was lodged with the Opposite Party, but the same was rejected.  It was further stated that the Opposite Party was deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.              In its written statement, the Opposite Party, admitted the factual matrix of the case. It was stated that the wife of the complainant was diagnosed to be suffering from CHF and she was earlier suffering from the said disease and was taking treatment for the same from Govt. Medical College & Hospital, Chandigarh and, as such, the claim of the complainant was not covered under the Insurance Policy. It was further stated that since the ailment, for which, the insured took treatment was a pre-existing disease and hence excluded under the terms and conditions of the Insurance Policy, for which, the claim was rightly repudiated by the Opposite Party vide repudiation letter (Annexure OP-4). It was further stated that the replying Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.

4.             The parties led evidence, in support of their case.

5.             After hearing the complainant in person, Counsel for the Opposite Party, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above. 

6.             Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.

7.             We have heard the Counsel for the appellant, respondent/complainant in person, and have gone through the evidence and record of the case, carefully. 

8.             The Counsel for the appellant/Opposite Party submitted that the District Forum wrongly and illegally ignored the fact that as per the terms and conditions of the Policy, the claim of the insured was not maintainable because the insured took treatment for a pre-existing disease and the need for the said treatment arose out of a pre-existing condition. He further submitted that the complainant himself placed on record the documents, which clearly proved that the insured was under treatment and got the treatment at Canada, therefore, as per the Policy terms and conditions, the medical expenses insured arising on account of pre-existing condition were not covered. He further submitted that the District Forum lost sight of the fact that evidence in respect of pre-existing ailment was not disputed and further, there was no role of proposal form, as the Policy condition very specifically stated that any medical expenses incurred, the need of which arises out of a pre-existing condition  is excluded. He prayed for allowing the appeal and setting aside the impugned order.  

9.             The respondent/complainant submitted that the complainant took a Travel Insurance Policy from the appellant/Opposite Party, for his wife, who was to visit Canada but when she reached Canada, she felt breathlessness and was taken to the hospital, for which, an amount of Rs.1,37,183.40P was spent on her treatment. He further submitted that when the claim was lodged with the Opposite Party, the same was rejected on the ground of pre-existing disease. He denied that his wife Mrs.Raj Kahlon had any pre-existing problem, before the issuance of the Policy. He further submitted that she was having blood pressure and taking the medicine from GMCH – 32. He further submitted that blood pressure is a minor problem and the representative of the appellant/Opposite Party was intimated regarding the B.P problem, at the time, when he visited their house.  He further submitted that the District Forum rightly passed the impugned order and prayed that the impugned order may kindly be upheld.

10.            After giving our thoughtful consideration, to the submissions, raised by the Counsel for the Opposite Party/appellant, respondent in person, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed,  for the reasons, to be recorded, hereinafter.

11.            The core question, that falls for consideration, is, as to whether, the appellant/Opposite Party was liable to refund the claim amount to the complainant. The answer, to this, is in the affirmative. Admittedly, the complainant took an Overseas Travel Insurance, for his wife, namely, Mrs.Raj Kahlon for her travel to Canada, from the Opposite Party, through its Agent i.e. H.D.F.C. Bank Limited. It is also an admitted fact that the wife of the complainant had fallen sick and was treated at Emergency Hospital, Alberta Health Service Urgent Care in Canada and incurred expenses to the tune of Rs.1,37,183.40P equivalent to $2286.39 (CAD) on her treatment. As per the complainant, he lodged the claim on 19.11.2013 with the Opposite Party but the same was repudiated by the Insurance Company vide email dated 27.01.2014 (Annexure OP-4). The relevant portion of the letter repudiating claim, reads as under :-

“From the information received, it would appear that this claim falls within the following exclusion :

Pre Existing Condition

In the present claim you have taken treatment for CHF that is pre-existing in nature hence the claim stands repudiated.

As per Medical Card provided by you, it clear shows that Insured is taking treatment related to same illness. In view of the above we regret that we are unable to consider any reimbursement towards the expenses claimed.”

From the afore-extracted repudiation letter, it is clear that the claim was repudiated on the ground that insured Mrs.Raj Kahlon was suffering from a similar disease before her visit to Canada and she failed to disclose the same and suppressed this information from the Insurance Company. The District Forum has rightly held that though the Opposite Party had procured the information of the complainant having visited the Govt. Medical College, & Hospital, Chandigarh, in the year 2012, but this document could only be used to find fault with the complainant, if there was another document in possession of the Opposite Party before the issuance of the Policy, where the complainant had deliberately preferred not to inform the Insurance Company about such ailment. But there was no such proof of withholding of material information of pre-existing disease from the side of the complainant. Even it is the duty of the Insurance Company to ask the individual to submit the Medical Certificate from the Registered Medical Practitioner, before issuing of the travelling Policy but the Insurance Company did not do so. The respondent/complainant stated in his brief written submissions that there was no pre-existing problem with his wife, Mrs.Raj Kahlon, before the issuance of the Policy. He further stated that she was having blood pressure and was taking medicine from GMCH – 32 and when the representative of the Insurance Company visited his house, the problem of B.P. (Blood Pressure) was intimated to him but the said representative told that B.P. is nothing. He further stated that Blood Pressure is a minor problem and most of the population in India have it. It is always on the insurer to prove concealment of pre-existing disease at the time of obtaining the Policy. Further, the hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life, which is full of tension at the place of work, in and out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of ‘pre-existing disease’ for repudiation of the insurance claim. It is also pertinent to note that the complainant himself placed on record the documents (Pages 21 to 28 of the paper book), along with his complaint, which only confirmed that, if at all, he wanted to hide such an information, there was no reason for him to place on record the said documents on record. Moreover, the Opposite Party also found it too convenient to use the same (documents) against the complainant. Even, as per the terms and conditions of the Policy, it was necessary for the Opposite Party to have a Proposal Form completed before its issuance. In Clause 8 of the General Conditions of the Travel Insurance Policy (Annexure OP-3), which reads as under:- 

 “8.   The Policyholder and Insured Person understand that if a proposal has been completed for this insurance, then all statements and all particulars provided in such proposal, and any attachments thereto, are material to the Company’s decision to provide this insurance. The Policy holder and Insured Person further understand that the Company has issued this Policy in reliance upon the truth of such statements and particulars.”

It is the duty of the Insurance Company to get the proposal form filled up from the life assured. Had the Insurance Company got filled the proposal form from the complainant, before taking the Policy, and if it was filled then whether the complainant mentioned wrong information regarding health or pre-existing disease, if any, of his wife in the proposal form before taking the Policy.  However, the Opposite Party failed to place on record any such Proposal Form, which could show that the complainant concealed information about the health of his wife from the Insurance Company and mentioned the wrong information about her health in the proposal form. It is not understandable as to why the Insurance Company did not place on record the proposal form, in absence of which the Opposite Party was not justified to repudiate the claim and the allegations of concealment of material facts do not hold good. The appellant/Opposite Party neither asked the respondent/complainant to submit a medical certificate before issuing the Policy. We are, therefore, of the considered opinion that the District Forum rightly held that the repudiation of the claim of the complainant certainly amounts to deficiency in service on the part of the Opposite Party (Insurance Company).  The District Forum, thus, rightly passed the impugned order and the same is, therefore, liable to be upheld.  

12.            Keeping in view the facts and circumstances of the case, we are of the considered view that the District Forum was right, in allowing the complaint, as stated above.   Hence, the order passed by the District Forum, being based on correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

13.            For the reasons recorded above, the appeal, filed by the appellant/Opposite Party, being devoid of merit, must fail, and the same stands dismissed, with no order as to costs. The order of the District Forum is upheld.

14.            Certified Copies of this order be sent to the parties, free of charge.

15.            The file be consigned to Record Room, after completion.

Pronounced.

11.06.2015                                                               Sd/-

(DEV RAJ)

 PRESIDING MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER