BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.4 of 2017
Date of Instt. 03.04.2017
Date of Decision: 18.06.2019
Manjit Kaur aged 55 years wife of Sh. Ravinder Singh, resident of H. No.283, Ward No.3, VPO Mahilpur, District Hoshiarpur.
..........Complainant
Versus
1. Surinder Singh, Insurance Agent of Bajaj Allianz General Insurance Company, office at Satnam Complex, 2nd Floor, BMC Chowk, Jalandhar.
2. Bajaj Allianz General Insurance Company, having its registered office at Satnam Complex, 2nd Floor, BMC Chowk, Jalandhar.
3. Bajaj Allianz General Insurance Company, 2nd Floor, Bajaj Finserb Building, Survey No.208/B-1, Behind Walk Field, I. T. Park, Nagar Road, Wimen Nagar, Pune 411014.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Rajiv Suri, Adv Counsel for the Complainant.
OP No.1 Given Up.
Sh. Raman K. Sharma, Adv Counsel for OPs No.2 & 3.
Order
Karnail Singh (President)
1. This complaint has been filed by the complainant, wherein alleged that the complainant got herself insured by Bajaj Allianz General Insurance Company, OP No.2 and 3 through their agent Surinder Singh, OP No.1 under Overseas Travel Insurance bearing Policy No.OG-16120-9910-00000-728 dated 29.06.2015 for the period of 1 July 2015 to 27.12.2015 and premium of Rs.5135/- was paid. Hence the complainant is consumer of OPs No.1 to 3.
2. That the complainant went to Australia on 01.07.2015 and arrived there on 02.07.2015. The complainant fell ill firstly on 21.08.2015 for which she was treated by Dr. Girdhari Lamba, and Dr. Mohan Singh at the Boulevard Medical and acupuncture centre, 24. The Boulevard Thomastown, 3074 where she got herself treated on 21.08.2015, 25.08.2015, 29.08.2015, 02.09.2015, 09.09.2015 and 22.09.2015 and have paid for all the treatment availed and medicine purchased by her. Then again the complainant fell sick on 04.12.2015 and she was admitted in Northern Hospital Radiology 185 Cooper Street Epping VIC 3076 Australia and was treated for Lower Respiratory Tracked Infection (Pneumonia). The complainant remained admitted in the hospital till 04.12.2015 to 08.12.2015 . The complainant had spent near about Dollar 21,000 in total on her treatment, medical tests and purchase of medicine etc., which come to be near about Rs.12,00,000/-. The complainant has approached the OP and has informed them about the expenses she has made on her treatment and has also made the claims bearing claim No.oc-16-1002-9910-00002007 and bearing claim No.OC-15-1002-9910-00002787 for reimbursement of money spent by her on her treatment. Both the claims have been rejected by OP due to reason that the complainant has diagnose for Chronic Gastritis with Diabetes Mellitus and Hypertension on 21.08.2015 and other dates and second time, the complainant was treated for Lower Respiratory Tracked Infection. The OP have also alleged that the complainant was suffering from Hypertension, Diabetes Mellitus, Gastroesophagial Reflux disease, Cholelithiasis, Urolithiasis and surgery for Hysterectomy, which are pre-existing disease to the policy and the sickness of the complainant on 21.08.2015 and 04.08.2015 are due to pre-existing ailments. The complainant has also sent a Medical Certificate to the OPs issued by Epping North Centre, where she was under treatment and was admitted from 04.12.2015 to 08.12.2015, wherein it has been mentioned that the Lower Respiratory Tracked injection for which the complainant was treated was neither a pre-existing conditions nor a squeal of her pre-existing conditions. The complainant has again sent a letter to OP No.3 along with the Medical Certificate attached with it, but the OP No.3 has rejected her claim. The act and conduct of the OP is tantamount to deficiency in service and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs No.2 and 3 may kindly be directed to pay a sum of Rs.12,00,000/- to the complainant along with interest @ 12% per annum from the date of filing the complaint and OPs be further directed to pay Rs.20,000/- for illegal harassment and OPs be also directed to pay litigation expenses of Rs.20,000/-.
3. Notice of the complaint was given to the OPs and accordingly, OPs No.2 and 3 appeared through its counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that there is no deficiency in service or unfair trade practice on the part of the insurance company to invoke the jurisdiction of this Forum. Hence, the complaint is liable to the dismissed on this score. It is further submitted that the case at hand involves intricate questions of fact and law, which require voluminous evidence, oral as well as documentary, to be led for proper adjudication of the matter. This is not possible in summary procedure followed by this Forum. Hence the complaint is required to return to the complainant. It is further submitted that the complaint is not maintainable against the Bajaj Allianz General Insurance Co. Ltd./OP. It is clear from the Attending Phycians Statement of Dr. S. N. Anavlkar of Reservoir Hospital dated 19.09.2015 that the complainant was having a past history of hypertension and diabetes since one year. The said history had not been disclosed in the proposal form preventing the OP from making a clear assessment for the risk to be insured and taking decision on whether an insurance cover was to be given and if so, with relevant exclusions. There is “Non Disclosure of material Information” by the complainant at the time of taking insurance policy. The expenses in the present case are attributable to, arising out of, traceable to and a complication of pre-existing ailment of the complainant and not payable under the policy terms and conditions and falls under the exclusion clause 2.4 and 2.4.12 of the insurance policy and as such, the insurance claim of the complainant has been rightly repudiated. On merits, it is admitted that the complainant got the insurance policy and also submitted an insurance claims, but the same was rejected for the reason they are violating the terms and conditions of the insurance policy. The other averments as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 and Ex.C-2 Copy of Insurance Policy, Ex.C-3 Medical Record, Ex.C-4 Statement, Ex.C-5 to Ex.C-10 Payment Receipts, Ex.C-11 to ex.C-15 Tax Invoices, Ex.C-16 Application, Ex.C-17 to Ex.C-31 Payment Receipts, Ex.C-32 Copy of the Bank, Ex.C-33 and Ex.C-34 Copy of the Policy, Ex.C-35 to Ex.C-42 Payment Receipts, Ex.C-43 Authorized Medical Record, Ex.C-44 Discharge Summary, Ex.C-45 and Ex.C-46 Payment Receipts, Ex.C-47 Letter, Ex.C-48 Rejection of the Claim and Ex.C-49 Medical Certificate and closed the evidence.
5. Similarly, counsel for the OPs No.2 and 3 tendered into evidence affidavit of Ms. Sarpreet Ahluwalia, Asst. Manager as Ex.OA alongwith some documents Ex.O-1 to Ex.O-6 and another document Ex.O2/A i.e. Terms and Conditions of the Insurance Policy and then closed the evidence.
6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
7. From the very outset, it is not denied by the OP that the complainant got insurance policy from OPs No.2 and 3 after making payment of premium of Rs.5135/-, for the period 01.07.2015 to 27.12.2015, Overseas Travel Insurance Policy and further, it is also not denied that the complainant remained admitted and got treatment twicely in Australia and submitted two insurance claim and admittedly, both are repudiated by the OP by invoking exclusion clause 2.4 and 2.4.12 of the terms and conditions of the insurance policy.
8. Now, we have to adjudge, whether the OP has rightly invoked exclusion clause 2.4 and 2.4.12. Admittedly, the copy of the terms and conditions also placed on the file by the OP, which is Ex.OP2/A and we have glance the said terms and conditions obviously if there was pre-existing disease and the same was concealed by any of the insured, then without any hesitation, the said exclusion clauses are to be invoked, but we have to consider, whether the said exclusion clauses are made applicable upon the complainant or not. First of all, we find that the OP took a plea that the complainant has concealed the material facts in regard to pre-existing disease, for that purpose, the OP has brought on the file photocopy of the proposal form, which was obviously filled by the official of the insurance company at the time of taking insurance policy by the complainant and the said proposal form is Ex.O-1 and it bears the signature of the complainant Manjit Kaur. We have carefully gone through the said proposal form and find that the columns, where the specific questions have been described whether ‘Are you suffering from any illness, have you been admitted in any hospital or are you currently or in past have been taking any medicine’, the said columns are not filled nor any reply was obtained from the insured/complainant rather the word described in these columns is ‘N.A.', means not applicable. So, no wrong reply has been given by the complainant at the time of inception of the policy, in her proposal form, if so, then we cannot cast a dent upon the trustworthy of the complainant that she has concealed any previous disease or ailment.
9. Secondly, in order to prove that the complainant was having previous ailment i.e. prior to taking of insurance policy, the OP has referred two documents Ex.O-3 and Ex.O-5. We like to make it clear that the said documents are of the same documents, which are produced by the complainant i.e. Ex.C-4 and Ex.C-34, which are re-exhibited by the OP as Ex.O-3 and Ex.O-5 and if we go through these documents, admittedly one column is filled ‘History of Ailment’ Hypertension, Cardiac ailments and Arthritis, Diabetes etc. and in the column of Hypertension and Diabetes have been replied as ‘Yes’, but these Attending Physicians Statement Ex.O-3 and Ex.O-5 is not signed by the complainant/insured nor any doctor has been examined by the OP nor any affidavit of the said doctor produced on the file in order to fortify that the said statement was given by the insured/patient. So, simply mentioning in the Attending Physicians Statement that the patient is having a history of Hypertension and Diabetes, is not sufficient to draw a line that the complainant has pre-existing disease. So, with these observations we are of the opinion that the aforesaid exclusion clause 2.4 and 2.4.12 are not attracted in this case and therefore, we hold that the OP has illegally and arbitrarily repudiated the claim of the complainant on 06.01.2016, vide repudiation letter as well as vide on other repudiation letter dated 28.01.2016. So, accordingly, both the repudiation letters are hereby set-aside.
10. Now, we have to adjudicate the question of monetary benefit provided to the complainant in the instant case i.e. insured amount, compensation and litigation. In order to prove that the complainant has spent about Rs.12,00,000/- of Indian Currency or Rs.21,000/- of USA dollar, but this version of the complainant has not been fortified by the OP by leading any cogent and convincing evidence rather the OP gave simple reply that it is matter of record and complainant be put to strict proof of the same and in order to prove the same, the complainant has brought on the file payments receipts Ex.C-17 to Ex.C-31, Ex.C-35 to Ex.C-42, Ex.C-45 and Ex.C-46 and when the complainant has proved by documentary evidence, then we find that the version of the complainant whatsoever stated in the complaint is a true version and as such, we hold that the complainant is entitled for the relief as claimed in the complaint.
11. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs No.2 and 3 are directed to pay medical treatment amount of Rs.12,00,000/- to the complainant with interest @ 9% per annum from the date of repudiation of insurance claim i.e. 06.01.2016, till realization. Further, OPs No.2 and 3 are directed to pay compensation to the complainant, to the tune of Rs.15,000/- and litigation expenses of Rs.7000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Karnail Singh
18.06.2019 Member President
