Order by:

Sh.Amrinder Singh Sidhu, President

1.       The complainant  has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (now under section 35 of the Consumer Protection Act, 2019)  on the allegations that on the allurement of Opposite Parties No.3 and 4, the complainant had purchased Oveseas Health Insurance Policy i.e. Explore-Canada+ from Opposite Parties No.1 and 2 after paying premium amount of Rs.12,605/- bearing No. 13841718 with a sum insured USD 50000 (American Dollars) valid for the period w.e.f. 09.03.2019 to 04.06.2019. Further alleges that  after taking the said policy,  the complainant and his wife went to Canada on 09.03.2019 where the complainant suffered a pain in his right hand  in the month of May, 2019 where he got treatment upon SGH Squamish General hospital at Canada and spent $ 2143 (Canadian Dollars) and in this regard, the complainant informed the Opposite Parties. After returning from abroad, the complainant  submitted his claim of medical reimbursement alongwith original medical record  of said hospital and bills to Opposite Parties and also completed all the formalities, but the Opposite Parties has not paid the said claim amount till date despite repeated request and reminders. As such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.

a)       The Opposite Parties may be directed to reimburse the medical claim of the complainant amounting to $2143 (Canadian Dollars)  i.e. Rs.1,15,542.87 paisa  alongwith interest  @ 12 % per annum till its actual realization.

 b)     The amount of Rs.50,000/- be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment caused by the complainant.

c)       The cost of complaint amounting to Rs.5500/- may please be allowed.

d)      And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.       

2.       Opposite Parties No.1 and 2 appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the complaint of the complainant is liable to be dismissed. It is submitted that  the replying Opposite Parties issued International Travel Insurance Policy namely Plan Explore Canada+ bearing No. 13841718 providing policy coverage to the complainant Gucharan Singh Gill and his spouse Mrs.Karamjit Kaur Gill and said policy was valid for the period 09.03.2019 till 04.06.2019 for a sum Insured of USD 50000 subject to policy terms and conditions. Thereafter,  the Opposite Parties received a reimbursement claim from the complainant for his treatment at Squamish General hospitals Canada on 19.05.2019 for pain in left arm. As per the medical documents received alongwith claim form,  the insured was presented with C/o Acute  onset of Left Arm pain at approx 1PM. Pain goes from wrist to elbow to arm and pain is constant with some numbness and the answering Opposite Parties observed  that Insured underwent X-ray of Spine cervical on 19.05.2019 which showed mild Spondylosis at C4-5 through C6-7 with anterior endplate entophytes and disc space heights were well maintained. Mild degenerative changes are also present at the left C1-2 lateral mass articulation. Further. X-ray forearm done on 19.05.2019 showed no osseous or joint abnormality and x-ray Humerus done on 19.05.2019 showed mild bowing of ht  mid-shaft of the humours and accordingly,  the Opposite Parties rejected the reimbursement claim under Exclusion clause and the same were intimated to the complainant vide rejection letter dated 19.11.2019 as per clause 2.1.3 (iii) Any treatment of orthopaedic diseases or conditions except factures, dislocations, and/ or injuries suffered during the period of insurance,  not covered under policy benefit. Explore Policy Exclusion.  Since the treatment taken by the complainant while in Canada was related to Orthopaedic condition and henceforth, the claim has been rightly rejected under exclusion clause.     On merits, the Opposite Parties took up almost the same and similar please as taken up by them in the preliminary objections. Hence, it is prayed that the   complaint may be dismissed with costs. 

3.       Similarly, Opposite Parties No.3 and 4 appeared through counsel, and filed their separately written reply taking the objections that  no deficiency in service has been attributed to the answering Opposite Parties and from the allegations in the complaint, no deficiency in service by the answering Opposite Parties is made out and hence, there is no deficiency in service on the part of the Opposite Parties No.3 and 4 and the complaint against Opposite Parties No.3 and 4 may be dismissed.     

4.       In order to  prove  his  case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents  Ex.C2 to Ex.C16 and  closed the evidence on behalf of the complainant.

5.       On the other hand,  to rebut the evidence of the complainant,  Opposite Parties No.1 and 2 also tendered into evidence the copies of documents Ex.OP1 & 2/1 to Ex.OP1 & 2 /12  alongwith affidavit of Sh.Lakshay Juneja Ex.Op1 & 2/13 and closed the evidence.

6.       We have heard the ld.counsel for the parties and also  gone through the documents placed  on record.

7.       During the course of arguments, ld.counsel for the Complainant as well as ld.counsel for Opposite Parties   have mainly reiterated the facts as narrated in the complaint as well as in the written statements respectively. We have perused the rival contentions of  the parties and also gone through the record on file.

8.       The main contention of the complainant is that the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Perusal of the contention of the ld.counsel for the complainant   shows  that  the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. In this regard,  Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment,  has held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30. In this regard, Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by  an unauthorized person has no legal effect.

9.       For the sake of arguments, if the written reply filed by Opposite Parties No.1 and 2 is presumed to be correct, the next  plea  raised by the Opposite Parties  is that  as per the terms and conditions of the policy, the  claim of the complainant is not  payable  under clause 2.1.3 (iii) of the insurance policy.  But the Opposite Parties No-Insurance Company could not produce  any evidence to prove that terms and conditions of the policy were ever supplied to  the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party,  it is clear that Opposite Party  has failed to prove on record that they did supply the terms and conditions of the policy to  the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.”  Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held so.

10.     We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The main contention of the ld.counsel for the Opposite Parties is that the Opposite Parties received a reimbursement claim from the complainant for his treatment at Squamish General hospitals Canada on 19.05.2019 for pain in left arm. As per the medical documents received alongwith claim form,  the insured was presented with C/o Acute  onset of Left Arm pain at approx 1PM. Pain goes from wrist to elbow to arm and pain is constant with some numbness and the answering Opposite Parties observed  that Insured underwent X-ray of Spine cervical on 19.05.2019 which showed mild Spondylosis at C4-5 through C6-7 with anterior endplate entophytes and disc space heights were well maintained. Mild degenerative changes are also present at the left C1-2 lateral mass articulation. Further. X-ray forearm done on 19.05.2019 showed no osseous or joint abnormality and x-ray Humerus done on 19.05.2019 showed mild bowing of ht  mid-shaft of the humours and accordingly,  the Opposite Parties rejected the reimbursement claim under Exclusion clause and the same were intimated to the complainant vide rejection letter dated 19.11.2019 as per clause 2.1.3 (iii) Any treatment of orthopaedic diseases or conditions except factures, dislocations, and/ or injuries suffered during the period of insurance,  not covered under policy benefit. Explore Policy Exclusion.  Since the treatment taken by the complainant while in Canada was related to Orthopaedic condition and henceforth, the claim has been rightly rejected under exclusion clause. On the other hand, ld.counsel for the complainant has specifically denied this averment made by the Opposite Parties on the ground that prior to inception of the policy in question, the complainant was not having any such symptom,  nor he ever disclosed such  problem from the Opposite Parties No.1 and 2 before inception of the policy.  It has been held by the Hon'ble National Commission in case New India Assurance Co.Ltd&Anr Vs. Murari Lal Bhusri 2011(III) CPJ 198 (NC) that where the Insurance company failed to produce any evidence to show that respondent was aware of any pre-existing disease at the time when insurance policy was taken, opposite party was not justified in repudiating the claim of the complainant on the ground of pre-existing disease. So the abovesaid law squarely covers the case of the complainant that it was the duty of the insurer to get medically examined  while issuing the policy and once the policy was issued the insurer cannot take the plea of pre-existing disease of the insured.

11.     Moreover, prior to issuance of the policy, it was required to check up life assured thoroughly. It was the bounden duty of the Opposite Party to make thorough investigation at the initial stage. It appears that the Opposite Party has different yard stick at the time of accepting the policy for procuring the business and different face at the time of discharge of its lawful liability. Not only this now-a-days it has become a business of almost all the Insurance Companies to deny the claim one or on another ground. Even otherwise in the fast growing business competition among the Insurance Companies unhealthy practice developed to get maximum benefits and profits. But in most of the cases he is left cheated when his claim is rejected with just a stroke of pen that his claim is against the terms and conditions of the policy or his claim has been deducted as per terms and conditions of the policy. The Insurance companies are required to explain all the details and conditions of the Insurance policy to the customers because a common man is not supposed to know all the technicalities of law. Once accepting the premium and everything entered into an agreement the Insurance company cannot wriggle out of the liability merely by saying that repudiation has been made as per terms and conditions of the policy .

12.     It also needs to be mentioned that Section 19 of the General Insurance Business (Nationalization) Act, 1972 states that it shall be the duty of every Insurance Company to carry on general insurance business so as to develop it to the best advantage of the community. The denial of medical expenses reimbursement is utterly arbitrary on the ground that disease in question was pre-existing disease. It is mere an excuse to escape liability and is not bona fide intention of the insurance company. Fairness and non-arbitrariness are considered as two immutable pillars supporting the equity principle, an unshakable threshold of State and public behavior. Any policy in the realm of insurance company should be informed, fair and non-arbitrary. When the insurance policy has exclusions/conditions to repudiate the claim or limit the liability, the same must be specifically brought to the notice of the insured and are required to be got signed to show that such exclusions and conditions have been brought to his/her notice.  Recently, our own Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in  First Appeal No. 50 of 2019 titled as Bajaj Alliance General Vs. Arjan Singh decided on 04.03.2021 also held so.

13.     The need for interpreting a contract always arises in two situations, (i) when a gap is needed to be filled in the contract and (ii) an ambiguity is needed to be resolved in the contract, then to find out correct intention of the contract, spirit behind it is required to be considered. Normally, the insurance policy is a contract of adhesion in which other party is left with hardly any bargaining power as compared to the insurer. Insurance contracts are standard form contracts and are drafted by the insurance company and as such, insurance company is at higher footing than the insured. The benefit of such clause, as exclusion clause, would go to the insured unless the same is explained in clear terms by the insurer. In such circumstances, the tribunal would be more oriented towards the interpretation which goes against the party who has inserted/drafted the disputed clause in the agreement/contract. The adjudicating authority is required to look into whether the intention of the party is to exclude or limit liability has been appropriately explained to the other party or not. This Commission while interpreting insurance agreement is to honour the intention of the parties, who have signed the agreement. Even if the agreement had general exclusion/condition for misrepresentation still fraudulent misrepresentation and non-disclosure may not be there. The innocent and negligent misrepresentations are to be ignored.  On the other hand, the rulings (i) Satwant Kaur Sandhu Vs. New India Assurance Company Limited, (ii) Murti Devi Vs. Birla Sun Life Insurance and (iii) Mamohan nanda Vs. United India Insurance Company Limited,   cited by the ld.counsel for the Opposite Parties  are not applicable and relevant  to the facts of the present case.  The insurance companies are in haste to charge the premium, but when the time to pay the insurance claim comes, they generally take up one excuse or the other to avoid their liability. The reliance of counsel for the appellant on law laid down in “Life Insurance Corporation of India Vs. Priya Sharma & others” 2012(4)CPJ-646, “Life Insurance Corporation of India & others Vs. Harbans Kaur” 2009(3)CPC-677, and “Life Insurance Corporation of India & another Vs. Ashok Manocha” 2011(3)CPC-285, would have been applicable, had this fact been established that life assured suffered from pre-existing ailment of and he deliberately suppressed this fact fraudulently from the Opposite Parties, when he took the insurance policy. In view of our finding recorded above that Opposite Parties had failed to prove this fact that complainant  was suffering from any pre-existing ailment and hence these authorities would not be attracted in this case. In this regard, on the same and similar facts and circumstances of the case, Hon’ble State Consumer Disputes Redressal Commission, in First Appeal No.62 of 2015  decided on 02.02.2017 in case India First Life Insurance Vs. Ms.Sudesh Rani also held so.   On the other hand, the  rulings cited  by the ld.counsel for the Opposite Parties are not applicable to the facts of the present case and we distinguish the same. 

14.     The law on the question of applicability of exclusion clause, suppression of the relevant factually position regarding any pre-existing disease from which the insured was suffering and the treatment thereof, if any, received from any hospital etc., has been the subject matter of number of decisions by the Hon’ble National Commission as also by the Hon’ble Supreme Court of India. In nutshell, the settled position is that it is the duty of the insured to disclose the above mentioned information to the insurance company at the time of buying the insurance policy and, if the same was not disclosed by the insured, the insurance company was well within their rights to repudiate the claim. However, the insured was under no obligation whatsoever to foresee, assess and apprehend the probable and future complications, which might or could suddenly arise from the earlier disorder. In this regard, the Hon’ble Supreme Court in their latest judgment in case Civil Appeal No.8386 of 2015 titled as “Manmohan Nanda Vs. United India Assurance Co. Ltd. & Anr.” decided on 06.12.2021, has held the object of buying a Medi-claim Policy is to seek indemnification in respect of a sudden illness or sickness which is not expected or imminent and that may occur overseas, “If the insured suffers a sudden sickness or ailment, which is not expressly excluded under the Policy, a duty is cast upon the insurer to indemnify the appellant for the expenses incurred there under”. In this regard, recently Honble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in First Appeal No.482 of 2019, decided on 10.01.2022 in case titled as Bajaj Allianz General India Insurance Company Versus Kewal Singh Kainth also held so.

15.     In such a situation the repudiation made by Opposite Party-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.  The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

16.     In view of the above discussion, we hold that the Opposite Parties No.1 and 2 -Insurance Company have  wrongly and illegally rejected the claim of the complainant.

17.     To support their contention, Opposite Parties No.1 and 2 have cited the rulings, but these rulings are not applicable to the facts of the present case and are not supportive to the instant case.

18.     The complainant in her complaint has claimed the reimbursement of his medical bill upto the extent of 2143 Canadian Dollar and this amount spent by the complainant on  treatment has nowhere denied by Opposite Parties No.1 and 2 by filing any cogent and convincing evidence and hence, the claim of the complainant to that amount is genuine and we allow the claim of the complainant accordingly.  

19.     In view of the aforesaid facts and circumstances of the case,  we allow the complaint of the Complainant and direct Opposite Parties No.1 and 2 -Insurance Company to pay the amount in Indian Currency equivalent to 2143 Canadian Dollars  (as on 02.08.2022)  to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 20.02.2020 till its actual realization.    The compliance of this order be made by Opposite Parties No.1 and 2- Insurance Company within 60 days from the date of receipt of copy of this order, failing which the complainant  shall be at liberty to get the order enforced in accordance with law. 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 Commission.