KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL NO. 792/2011
JUDGMENT DATED. 21.08.2012
PRESENT:-
SMT. A. RADHA : MEMBER
APPELLANTS
- The manager,
M/s. Bajaj Allianz General Insurance Co. Ltd.,
3rd Floor, Finance Tower,
Kalloor, Ernakulalm.
- The Branch Manager,
M/s. Bajaj Allianz General Insurance Co. Ltd.,
Near R.T. Office, Pathanamthitta.
(Rep. by Adv.Sri. Sreevaraham G. Satheesh)
Vs
RESPONDENT
Sosamma George,
W/o George,
Attasseril Kalllumkal house,
Varayannoor P.O., Pullad,
Thiruvalla.
(Rep. by Adv.Smt. Suja as amicuscurie)
JUDGMENT
SMT. A. RADHA : MEMBER
Aggrieved by the order passed by the CDRF, Pathanamthitta in C.C. No. 51/2010 the opposite parties came up in this appeal wherein the Forum below allowing the complaint directed the opposite parties to pay the medical bills with compensation of Rs. 2,500/- along with cost of Rs. 1,000/- with a rider on non compliance of the order the complainant is entitled for 9% interest from the date of order till the realization of the amount.
2. It is the case of the complainant that the complainant took the Overseas Travel Insurance policy for a period from 2.2.2008 to 13.2.2008 with the opposite parties in connection with a Tour program to Holy land. During the night stay at Sharjah the complainant experienced breathing stress and had to undergo treatment from the Doctor. Thereafter she continued her journey and on 10.2.2008 while she was in Egypt she again felt breathing difficulty and was admitted to the hospital. For the treatment the complainant had incurred 1000 U.S. dollars and other expenses. Though the medical records were collected by the opposite parties no amount was paid. Again on her return to Kerala she was admitted in Amritha hospital due to breathing problem. It is alleged in the complaint that the repudiation of the complainant’s claim is a clear deficiency on the part of the opposite parties and the opposite parties are liable to pay the treatment expenses which comes to Rs.72,000/- and also prayed for compensation and costs before the Forum below.
3. The opposite parties filed version admitting the policy. The policy is issued subject to terms and conditions. It is not disputed that the complainant submitted the claim for the medical bills before the opposite parties. . It is submitted that the policy was repudiated on the ground that the policy benefits will be extended to the claimants only in strict adherence to the terms and conditions of the policy and it is the contention that as per the policy conditions the company is not liable to make payment for any claim directly or indirectly caused disease which are pre existing. It is very clear from the documents produced by the complainant herself that she had been admitted for bronchial asthma which is clearly stated in the certificate that ailment is a” known case” and she had suppressed the same while taking the policy. She was brought to the hospital due to excerbation of bronchial asthma which she was suffering from a very long time. The term excerbation by itself means “ an increase in the seriousness of disease or disorder has marked by greater intensity” It is also stated in the medical records that she was suffering from Diabetic Mellitus and high density of Hyper Tension which was suppressed by the respondent while taking the policy. As the complainant had not revealed her disease before taking the policy the opposite party is not liable for the payment of medical bills and hence repudiated the claim. The suppression of real facts in the proposal certainly dis-entitled the claim of the policy holder. In this case the complainant was having preexisting ailment and repudiation of the complainant’s case is legal and no deficiency can be attributed on the part of the opposite parties.
4. The evidence consisted of the oral testimony of PW1, the complainant and documents marked as Exts. A1 to A21 on the part of the opposite parties, DW1 was examined and documents marked as Exts. D1 & D2. On an appreciation of the documents and evidence the Forum allowed the complaint. The Forum below came to the conclusion that the note in Ext. B1 as a known case of Bronchial Asthma alone is not sufficient for establishing the complainant’s ailment as pre-existing disease. The rejection of the complainant’s claim by opposite parties was set aside by the Forum below.
5. The counsel for the appellant submitted that the policy is limited to a specific period being a travel policy. It is the prime duty of the insurer to fill up the claim form and in this case the application was filled up by the complainant herself. The complainant is well aware of her disease and that she had not revealed the same in the application form. It is on the very first day of journey itself the complainant had the breathing problem and was consulted a doctor thereafter in Egypt, she was admitted on 10.2.2008 due to breathing problem. After the journey to Kerala, the respondent was admitted in Amritha Hospital for the same ailment itself. It is pertinent to point out here that the Insurance policy was issued on certain terms and conditions which are to be obliged by the policy holder. As per clause No.2.4.12 it is clearly specified that the pre existing disease is not payable. He also pointed out the Ext. B 1 Treatment Record shows that it is a known case of bronchial Asthma that it can only mean the ailment of bronchial asthma was existing earlier and it was known to the complainant also. This evidence itself is sufficient to confirm that the complainant was having pre existing disease before the commencement of the policy. Further the counsel for the appellant advanced the argument regarding the word excerbation of bronchial asthma noted in the treatment records which means increase in the seriousness of a disease. This fact also confirms that bronchial asthma of the respondent was pre existing. The existence of illness is sufficient and that the fact was made in the entry in Ext B1. He also urged that the Forum below ought to have dismissed the complaint on the sole ground of violation of the policy condition that the respondent suppressed the pre existing disease before the insurer. He placed reliance on the Apex court decision in Vikram Green Tech(I) Ltd another Vs New India Assurance Company (2) 2009 CPJ 34 (SC) wherein the terms have to be strictly construed to determine the extend of liability of the insurer. The issuance of insurance policy the insurer is under terms to indemnify the loss suffered by the insurer on account of the risk covered by the Insurance policy., “ its terms have to be strictly construed to determine an extend of liability of the insurer. The court while construing the terms of policy is not expected to venture into extra liberalism that may result in re-writing the contract or substituting the terms which are not intended by the parties”.
6. The counsel for the respondent submitted that the policy was taken on the date of journey and the respondent fell ill during the journey when they reached Sharjah airport on the same day. It is the submission of the counsel that the doctor remarked that the complainant was having smoke allergy after giving some medication and on advice of the doctor the respondent continued the travel. Again on 10.2.2008, the breathing difficulty started and was hospitalized. It is the contention of the respondent that the cause of breathing problem was due to allergy. He also resisted that the respondent was not having any pre existing bronchial asthma as stated by the appellant. The ailment started only on the day of travel and there had no pre existing disease as mentioned by the appellants. Appellant is liable to pay the hospital expenses and other allied expenses incurred by the respondent as the policy covered the journey period. The Forum rightly allowed the complaint and the order is merely to be upheld by this Commission.
7. Having considered the respective submissions made by the counsels for both parties this Commission hold that under the terms of policy, the repudiation of claim is justified by the appellant. In this instance the terms of the policy is that this does not cover any pre existing medical condition/injury/illness/deformity and complications arising from them that are declared or undeclared. So also clause stated in Ext. B1 is reproduced herewith. Clause 2.4.12 read thus:
“ Any medical condition or complication arising from it which existed before the commencement of the Policy Period, or for which care, treatment or advice was sought, recommended by or received from a Physician”. The Insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risk covered by insurance policy the terms of agreement have to be construed to determine the extend of liability of the insurer. The insured cannot claim anything more than what is covered by the Insurance Policy. That being so the insured has also to act strictly in accordance with the statutory limitations or terms of policy expressly set out therein. In the instant case the medical records clearly mentioned in Ext. B1 issued by Bethleham society for rehabilitation the diagnosis shown is bronchial asthma and under medical examination column it is clearly shown that ‘ a known case’ of bronchial asthma, diabetic mellitus and H.T.N. and it is to be pointed out that she continued her treatment in Kerala at Amritha Hospital as specified in the complaint itself that too due to the breathing problem. Further the respondent had not produced any documents to show that she was continuing treatment nor any documents for allergy or otherwise. Based on the evidence of Ext. B1 this Commission is of the considered view that it is ‘a known case’ of bronchial asthma which was suppressed by the respondent while taking the policy.
8. This Commission hold that the respondent deliberately suppressed the fact that she was having a breathing problem before taking the Insurance policy. It is also clear that she had to undergo continued treatment also, on the same breathing problem after her return journey also. So this Commission is not in a position to support the finding recorded by the lower Forum and we upturn the order passed by the Forum below.
In the result the appeal is allowed upturning the order passed by the Forum below. Hence the complaint is also dismissed.
The office is directed to send a copy of this order to the Forum below along with the L.C.R.
A. RADHA : MEMBER
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