BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 58 of 2016
Date of Institution: 05.2.2016
Date of Decision: 02.08.2016
S. Karam Singh Son of S. Banta Singh Aged 67 years, R/o 323-D Block, Ranjit Avenue, Amritsar 143001 Punjab
Complainant
Versus
- Reliance General Insurance through its Director/General Manager, SCO 2, PUDA Complex, Ladowali Road, Jalandhar 144001, Punjab, India, PH-0181-3048148
- Bhatia Travels, through its Proprietor, SCO 16, District Shopping Centre, Ranjit Avenue, Amritsar 143001
Opposite Parties
Complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainant : Sh.Sumant Tuteja Advocate.
For the Opposite Party No.1 : Sh.P.N.Khanna,Advocate
For the Opposite Party No.2 : Sh.Sanjeet Singh,Advocate
Coram:
Sh.S.S.Panessar President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S.Panessar,President.
- Karam Singh complainant has filed the present complaint under section 12 read with section 2( c ) (i)(ii) & (iii) of the Consumer Protection Act on the allegations that complainant is a consumer within the meaning of section 2(b)(i) of the Consumer Protection Act, 1986 and abiding citizen. The complainant purchased a travel care insurance policy for senior citizen from opposite party No.1 through opposite party No.2 bearing policy No. 2002552819110927 for Rs. 12518/- and the premium was paid vide cheque No. 80742 drawn on Punjab and Sind Bank dated 20.5.2015 for Rs. 24000/-. Copy of the cover note is annexed. Opposite party No.1 is an authorized insurance company licensed by Government of India. Opposite party No.2 is an authorized travel agent approved by IATA and recognized by Govt.of India situated at SCO 15, District Shopping Centre, Ranjit Avenue, Amritsar within the territorial jurisdiction of this Forum. The complainant bought two return tickets for himself and his wife Mrs. Sukhwinder Kaur from opposite party No.2 to travel to Sydney, Australia and further to Brisbane to visit her daughter and son in law from Amritsar dated 28.5.2015 and return on 25.11.2015 and these tickets were booked on 18.5.2015 and the payment was made by cheque No. 80741 drawn on Punjab & Sind Bank. On the day of booking the tickets one Mr.M.S.Kohli, who was looking after the complainants tickets advised the complainant to buy travel insurance as it is always safe while travelling Abroad and also explained various benefits of insurance. On the assurances given by Mr.M.S.Kohli, the complainant bought the policy for himself and his wife. It is pertinent to mention over here that while filling the insurance form/cover note, the complainant categorically disclosed/mentioned that he is on blood pressure pills and was once diagnosed with bladder cancer around 20 years ago but the complainant is not under any medication for cancer and is living a healthy life. At this Mr. M.S. Kohli made a note of it but never mentioned the same in any document and upon complainant’s asking about not mentioning the previous medical history Mr.M.S.Kohli said it needs no mention as it has been more than 20 years and having blood pressure pills is very normal at the age of complainant. It was on 22.8.2015 while the complainant was at her daughter’s house in Brisbane, Australia when he felt an acute pain in left arm and he collapsed all of a sudden. Being a Saturday, which is a holiday in Australia, the complainant’s daughter and son in law both were present at the house , who called the ambulance straight away and took the complainant to The Princess Alexendra Hospital, Ipswich Road, Woolloongabba, 4102, where the complainant was treated and a stent in artery was inserted after following surgical procedures. The agonizing journey of the complainant started on 23rd October 2015 when complainant’s son in law namely Mr.Robinder Kahlon contacted opposite party No.1 via email for settlement of claim, but the authorized person of opposite party No.1 made Mr.Kahlon undergo a lot of unnecessary formalities which included the proof of past medical history. The copy of the entire email conversation between Mr.Kahlon and opposite party No.1 have been annexed. Mr.Kahlon also procured a record of past medical history from the family doctor of the complainant in prescribed format dated 23.10.2015 from Dr.B.S.Deep, MD, copy of which is enclosed. The complainant and his wife came back to India on 25.11.2015 as per the tickets booked by opposite party No.2 and visited the family doctor namely Dr.B.S.Deep, MD, who gave a medical certificate stating the past history of the complainant in his own handwriting, duly stamped on his letter paid , copy of the same is annexed. After complying with all the formalities and submitting all the documents via email in prescribed format Mr.Kahlon received an email from opposite party No.1 stating about the denial of the medical claim. Copy of the repudiation letter is annexed. The complainant is a retired Punjab Government service man, who served the State as an Assistant Engineer in Punjab Water Supply and Sanitation Department . The complainant’s son in law has spent a sum of total $9700 (Australian) on his medication and other hospital expenses which the complainant intends to repay by all means. Copies of receipts and bills are attached. Based on the facts as narrated above, it is submitted that opposite party No.1 and opposite party No.2 are guilty of rendering deficient services to the complainant and have miserably failed in discharging their responsibility at the time of transaction. Opposite party No.1 has failed in providing such services as were assured and promised by them to the complainant by their authorized agent and it would not be out of place to say that they have actually indulged in unfair trade practices and cheated the complainant of the money paid by him. The complainant has sought for following reliefs vide instant complaint:-
- Opposite parties No.1 & 2 be directed to release the amount of Rs. 4,85,000/- ($ 9700.50) spent on hospitalization and medication .
- Opposite parties No.1 & 2 be further directed to pay litigation expenses to the tune of Rs. 50000/-.
Hence, this complaint.
2. Upon notice, both opposite parties No.1 & 2 appeared and contested the complaint by filing separate written statements.
3. Opposite party No.1 in its written version has taken certain preliminary objections therein inter alia that complainant has not approached this Forum with clean hands and has concealed the material facts from this Court. It is basic law that any person who approaches the court with uncleaned hands, is not entitled to get any relief and the complaint is liable to be dismissed on this ground alone ; that by not disclosing the pre-existing disease, complainant has violated the policy conditions of duty of disclosure and baseless claim of complainant is liable to be dismissed on this ground alone. The said condition is being reproduced as under:-
1. Duty of Disclosure
“That the policy shall be void and all premiums paid hereon shall be forfeited to the company in the event of misrepresentation , mis-description or non-disclosure of any material fact.
“In the event of untrue of incorrect statements, misrepresentation, misdescription or non disclosure of any material particulars in the proposal form, personal statement, declaration and connected documents, or any material information having been withheld , or a claim being fraudulent or any fraudulent means or device being used by the policy holder/insured person or any on acting on his/their behalf to obtain a benefit under the policy, the company may cancel this policy at its sole discretion and the premium paid shall be forfeited in its favour;
That complainant even otherwise has admitted the receipt of rejection letter dated 17.12.2015 issued by opposite party No.1 as mentioned in para No.14 of the complaint. However, complainant has concocted the story that Mr.M.S.Kohli was informed regarding his illness and he even took note of the same but never mentioned the same in any document and upon complainant’s asking about not mentioning the previous medical history, Mr.M.S.Kohli said it needs no mention as it has been more than 20 years and having blood pressure pills is very normal at the age of the complainant. Infact this entire story has been concocted because whatever information is given at the time of obtaining of the insurance, the same is reduced to writing in the note prepared by the concerned official and the same is also signed by the insured being accepted as correct one. If for any reason the version as alleged by the complainant was not recorded in any document by said Mr.M.S.Kolhi, the complainant should have immediately lodged the complaint to the higher authorities of the Insurance company but no such steps have ever been taken which clearly shows that the entire story has been concocted just to hide/misrepresent the actual facts from this Forum; that complaint filed by the complainant is bad for non joinder of necessary parties and cause of action. In this regard it is submitted that said Mr.M.S.Kohli is the necessary and proper party to be impleaded in the present case because the entire story made out by the complainant in the present complaint is related to the dealing conducted between the complainant and Mr.M.S.Kohli so that entire picture may come before this Forum ; that as per the process of travel insurance coverage, the cashless claim is directly paid to hospital only and patients are discharged without any single penny. The complainant never produced /annexed the copies of bills nor the proof of payment made to hospital with complaint which itself indicates the malafide intention of complainant. Without admitting anything, in case the liability is fastened over the insurance company, the amount need to go in favour of hospital only. On merits facts narrated in the complaint have been specificall denied and prayer for dismissal of the complaint with cost has been made.
4. In reply on behalf of opposite party No.2, opposite party No.2 also took certain preliminary objections therein inter alia that present complaint is wholly misconceived , groundless and unsustainable in law and is liable to be dismissed ; that complaint under reply filed by the complainant is not maintainable being false, frivolous, baseless and without any cause of action ; that complaint under reply filed by the complainant is not maintainable against the answering opposite party No.2 as no unfair trade practice has ever been adopted/committed by the answering opposite party ; that there is no deficiency in service on the part of opposite party No.2. It is further submitted that complainant has no cause of action against the answering opposite party No.2 from filing the present complaint that there is breach of utmost good faith by non-disclosure of material facts at the time of acceptance of insurance contract by the complainant. On merits , facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint with cost has been made.
5. In his bid to prove the case Sh.Sumant Tuteja, Adv.counsel for the complainant has tendered into evidence affidavit of the complainant Ex.CW1/A, copy of Insurance cover note Ex.C-1, copy of intimation to Insurance company Ex.C-2, copy of medical certificate by doctor Ex.C-3, copy of past history sheet Ex.C-4, copy of denial of insurance claim Ex.C-5, copy of list of expenses Ex.C-6 and closed the evidence on behalf of the complainant.
6. To rebut the aforesaid evidence Sh.P.N.Khanna,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Sh.Amit Chawla,Authorized signatory Ex.OP1/1, affidavit of Venkata Ramana Seethepalli of Europ Assistance India Pvt.Ltd. Ex.OP1/2 alongwith documents Ex.OP1/3 to Ex.OP1/8 and closed the evidence on behalf of opposite party No.1.
7. On the other hand Sh.Sanjeet Singh,Adv.counsel for opposite party No.2 tendered into evidence affidavit of Sh.Makan Singh Kohli, Manager Ex.OP2/1, air ticket dated 10.4.2015 Ex.OP2/2 and closed the evidence on behalf of opposite party No.2.
8. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted by all the parties.
9. On the basis of the evidence on record, it has vehemently been contended on behalf of the complainant that complainant is a consumer having purchased a travel care insurance policy for senior citizen from opposite party No.1 through opposite party No.2 bearing policy No. 2002552819110927 for Rs. 12,518/-, copy of the cover note is Ex.C-1 on record. The complainant bought two return tickets for himself and his wife Mrs.Sukhwinder Kaur from opposite party No.2 to travel to Sydney, Australia and further to Brisbane to visit their daughter and son in law from Amritsar on 28.5.2015 and return on 25.11.2015. These tickets were booked on 18.5.2015 and the payment was made by cheque No. 80741 drawn on Punjab & Sind Bank. On the day of booking the tickets one Mr.M.S.Kohli, who was looking after the complainants tickets advised the complainant to buy travel insurance as it was always safe while travelling Abroad and also explained various benefits of insurance. On the assurances given by Mr.M.S.Kohli, the complainant bought the policy for himself and his wife. The complainant categorically disclosed the fact that he is on blood pressure pills and was diagnosed with bladder cancer around 20 years ago but the complainant is not under any medication for cancer and is living a healthy life. At this Mr.M.S.Kohli made a note of it but he never mentioned the same on any document. Upon complainant’s asking about not mentioning the previous medical history Mr.M.S.Kohli told him that there was no need to mention as it was more than 20 years ago. Besides having blood pressure pills is very normal at the age of the complainant. On 22.8.2015 when the complainant was at her daughter’s house in Brisbane(Australia), he felt an acute pain in left arm and he collapsed all of a sudden. He was taken to The Pricess Alexexandra Hospital, Ipswich Road, Woollongabba, 4102 where the complainant was treated and a stent in artery was inserted after following surgical procedure. The son in law of the complainant namely Robinder Kahlon contacted opposite party No.1 via email for settlement of claim but the authorized person of opposite party No.1 made Mr. Kahlon undergo a lot of unnecessary formalities which included the proof of past medical history. Copy of the entire e-mail conversation between Mr.Kahlon and opposite party No.1 is Ex.C-2 on record. Mr. Kahlon also procured a record of past medical history from the family doctor of the complainant in prescribed format dated 23.10.2015 from Dr. B.S.Deep , MD, copy whereof is Ex.C-3 on record. The complainant and his wife came back to India on 25.11.2015 as per the tickets booked by opposite party No.2 and he visited his family doctor, who gave a medical certificate stating the past history of the complainant in his own handwriting, copy of which is Ex.C-4 on record. After complying with all the formalities and submitting all the documents via email in prescribed format Mr. Kahlon received an email from opposite party No.1 stating about the denial of medical claim, copy of which is Ex.C-5 on record. The son in law of the complainant spent an amount of $9700 (Australian) on his medication and other hospital expenses , copy of requisite receipts and bills is Ex.C-6. Opposite parties No.1 & 2 are guilty of rendering deficient services to the complainant and have miserably failed in discharging their responsibility at the time of transaction. Opposite party No.1 has failed in providing such services as were assured and promised by them to the complainant by their authorized agent and it would not be out of place to say that they have actually indulged in unfair trade practices and cheated the complainant of the monies paid by him. The complainant did not suffering from pre-existing disease and the repudiation has been made by opposite party No.1 on flimsy grounds which are not tenable in law. Reliance in this connection has been placed upon O.P.Kingar – Petitioner Vs. New India Assurance Co.Ltd.& Ors-Respondents 1(2007) CPJ 57 (NC) wherein it has been laid down that hence on the date on which the family insurance policy was taken, the complainant was not suffering from IHD.Moreover on 8.2.1993 Mr.Kingar had also obtained a visa to visit the United Kingdom. Hence, we find no reason to disbelieve the version of the petitioner.
10. On the basis of the aforesaid contentions, ld.counsel for the complainant has vehemently contended that complainant has been able to prove his case beyond shadow of doubt. Opposite parties are deficient in service. The complainant is entitled for grant of compensation to the tune of Rs. 4,85,000/- on account of medical treatment and it is further requested that he may be granted compensation for deficient service as well as litigation expenses as prayed for.
11. However, from the appreciation of the facts and circumstances of the case, it becomes evident that complainant has not been able to prove his case in accordance with law. The complainant has failed to prove any deficiency in service on the part of the opposite parties . Rather it is the complainant , who has made false representation at the time of obtaining the insurance policy that he was not suffering from any disease. The complainant has coined a false excuse of mis-representation by stating that it was one Mr. M.S.Kohli, who did not mention the fact that the complainant was on blood pressure pills and was suffering from bladder cancer about 20 years ago. Had Mr.M.S. Kolhi not mentioned the said fact in the proposal form, the complainant could approach the higher authorities of the Insurance company for the purpose. But nothing was done in the matter. So much so, the complainant did not array M.S.Kohli, as party to the present complaint. Had Mr. Kohli been guilty of willfully suppressing any information from the Insurance company, this complaint cannot be effectively disposed off in the absence of Mr. M.S.Kohli. The complaint is liable to be dismissed on account of non joinder of M.S.Kohli as party to the present complaint. Non-disclosure of pre-existing disease at the time of filling proposal form, amount to concealment of material facts. The complainant could very well intimate the Insurance company regarding the pre-existing disease, within 7 days of receipt of the Insurance policy. Relevant extract of Insurance policy is reproduced for ready reference as under:-
“Please go through the details as furnished above and also as provided in the policy schedule and confirm that they are in order. Should you feel that there are any discrepancies/variations, you are requested to write back to us immediately at 12. From the clinical summary of Princess Alexandra Hospital, it becomes clear that the complainant was suffering from Hypertension and hypercholesterolemia prior to the insurance coverage which falls under the exclusion clauses of the insurance policy. Copy of the clinical summary is Ex.OP1/6 on record. The important extract of the said clinical summary is reproduced as under:-
“PMHx
HTN
Hypercholesterolaemia”
Now the question arises what is pre-existing disease ?
“ Pre-existing disease means any condition, illness or injury or related condition(s) for which the insured/insured person had signs or symptoms and/or were diagnosed and/or received medical advice/treatment within 48 months prior to the first policy under which the insured person was covered with us.”
13. Now the question arises as to whether due to violation of the terms and conditions of policy, the complainant was entitled for grant of Insurance claim or not ? Answer to this query finds recorded in M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd-Appellant Vs. United India Insurance Co.Ltd. & another –Respondents 2010(4) RCR (Civil), wherein it has been laid down that in a contract of insurance , rights and obligations are strictly governed by the terms of the policy and no exception of relaxation can be given on the ground of equity. It has further been held in this judgement that in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the court to add,delete or substitute any words. In this judgement it has been further held by the Hon’ble Supreme Court that where there is breach of conditions of the insurance contract by the insured, the insurance company is not liable to pay compensation in case of loss. This position of law has been further fortified in the latest judgement of Hon’ble National Commission titled as M/s. V.K. Karyana Store Vs. Oriental Insurance Co. Ltd. 2014(3) CLT page 47 wherein it has been held that it is well settled principle of law that parties are bound by terms and conditions of the insurance policy and none of the parties can seek any relief beyond those terms and conditions. In Prema & Ors- Petitioners Vs. Life Insurance Corporation of India Ltd.-Respondent 2006(3) CLT 574 (NC), it has been laid down that “we need not say that the Insurance Contracts are ‘uberrima fides’ and are founded upon utmost good faith. If any party fails to observe this utmost good faith, the contract may be avoided by the other. This legal proposition has been reiterated time and again by the Supreme Court, this Commission as well as by various High Courts”.
14. From the aforesaid discussion, it transpires that complainant has not been able to prove his case rather it is the complainant, who is guilty of suppression of material facts regarding pre-existing disease being suffered by him before inception of insurance cover in dispute. The complainant has failed to disclose the factum of earlier disease suffered by him at the time of getting the Insurance policy in dispute issued in his favour. As such insurance claim filed by the complainant has rightly been repudiated by the opposite party. There is no deficiency in service on the part of the opposite party.
15. Consequently, instant complaint fails and the same is ordered to be dismissed accordingly. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum (S.S.Panesar)
Dated : 2.08.2016 President
/R/ (Anoop Sharma) (Kulwant Kaur Bajwa)
Member Member
