PER BHARATKUMAR PANDYA, MEMBER

1.         The parties are referred to as arrayed in the complaint. This appeal arises from the order dated 04.01.2017 passed by Delhi State Consumer Disputes Redressal Commission in CC no. 1455/2016 whereby the complaint of the complainant (appellant herein) was dismissed passing the following order:

            “4.        The short question which arises is as to whether complaint can be filed after receiving the amount in full and final satisfaction. Complainant himself has filed copy of letter dated 30.03.2016 at page-190. The said letter shows that payment was towards full and final settlement. Either the complainant should not have accepted said cheque and encash it or he is debarred from filing said complaint. 

5.          The protest made by the complainant vide letter dated 16.04.2016 is after 16 days of receiving the amount. So it cannot be said that he made protest shortly after receiving the amount. Law in this regard is settled that once amount is received in full and final settlement, there can be no complaint. In this regard reference can be made to decisions in following case- - - 

1. United India insurance Company Vs. Ajmer Singh Cotton & General Mills, II (1999) CPJ 10 SC. 
2. National Insurance Company Ltd. Vs. Setia Shoes (2008) 10 SCC 400. 
3. Ajay Verma Vs. United India Insurance Company Ltd, RP No. 2911/2010 decided on 28.04.2011, NC 
4. Rajiv Tripathi Vs. United India Insurance Company Ltd. RP No. 1066/2008 decided on 18.09.2012 NC. 
5. Dr. Yogesh Kumar Sharma Vs. National Insurance Company Ltd., RP No.4108/2010 decided on 12.02.2013 NC. 
6. National Insurance Company Ltd. Vs. Kuka Rice & General Mills Vol. I (2008) CPJ 338, Haryana State Commission. ”

2.      The above order of the State Commission has been challenged by the appellant by raising inter alia the following main grounds/contentions:

(1)           That the Hon'ble State Commission failed to appreciate the facts and circumstances of the present case and dismissed the Complaint filed by the Appellant at the threshold holding that the protest was made after 16 days of receiving the amount.

(2)           That the State Commission erroneously held that as appellant accepted a cheque for “full and final settlement” from respondents, therefore appellant was barred to institute a complaint. The State Commission failed to appreciate that acceptance of an insurance claim amount is not a unilateral act, but a bilateral one. 

(3)           The State Commission dismissed the complaint filed by the Appellant at the threshold while relying on judgments which were not applicable to the Appellant's case. 

(4)           That State Commission wrongly opined that response of the appellant dated 16.04.2016 suffered from delay as appellant raised a dispute on receiving the cheque from respondent no. 3.

4.         IA No. 17204 of 2018 was filed by the respondent no. 2 for setting aside ex-parte order passed against them on 13.04.2018. As this application has been allowed vide order dated 18.09.2018 passed by this Commission, IA/17204/2018 may be treated as disposed of.

5.         The case of the appellant is that appellant purchased two Overseas Travel Medical Insurance policies described as Overseas Mediclaim Policy for himself and his wife ("Travel Insurance Policies") from the Respondent No. 1 on 02.06.2015 for the period of travel between 11.06.2015 and 10.06.2016. A premium of Rs. 44,568/- was paid by the Appellant for the policies. The sum assured under the policy under various heads is tabulated as under:

5.1       On 07.10.2015, the Appellant along with his wife travelled to London on Virgin Atlantic flight number VS301 and was scheduled to return from London to New Delhi on 20.10.2015 on Virgin Atlantic flight number VS300. However, on 16.10.2015, the Appellant started to experience severe discomfort and reported pain in the abdomen and he could not consume any food or water. On 19.10.2015, his wife took him to the emergency ward at Charing Cross Hospital, London where the Appellant met with one Dr. Mohammed and was prescribed laxatives. However, in the morning of 20.10.2015, the Appellant's condition went from bad to worse and he returned to Charing Cross Hospital under emergency circumstances, where one Dr. Rehman conducted x-rays, tests and a CAT scan and a blockage in the intestines was found. As his condition was found to be critical, a surgery to move blockage was done on 21.10.2015. Appellant's wife called Virgin Atlantic Airlines and cancelled the return tickets. She booked fresh tickets for the Appellant and herself to depart from London on 23.10.2015 for an amount of GBP 1,255.98 for the Appellant's ticket and GBP 920.91 for her ticket. Following the emergency surgery, the Appellant was admitted in the Intensive Care Unit (ICU) and was kept under constant observation by the doctors at Charing Cross Hospital. In the meantime, on 22.10.2015 Appellant's wife made a phone call to April International, a French company acting as a third party administrator on behalf of the Respondent No. l which is entrusted with the task of making funds available on an immediate "Cashless Assistance" basis to the insured person, informing it about the Appellant's acute and critical condition. She also wrote an email to the April International regarding the same. Since the Appellant was yet to recover completely from the emergency surgery and was not fit to travel, the Appellant's wife was forced to change the tickets to open-dated tickets. She also wrote an email on 22.10.2015 to Virgin Atlantic Airlines in this regard, wherein she described the sequence of events leading up to the change of flight tickets. As a result, the charges for the change of flight tickets amounted to GBP 1,255.98 for the Appellant's flight ticket and GBP 920.91 for the Appellant wife's flight ticket. On 25.10.2015, the Appellant was discharged from the ICU. On 28.10.2015, an invoice was raised for an amount of GBP 10,368 by Charing Cross Hospital. As per the terms of the Travel Insurance Policies, the Respondents were required to provide "cashless assistance". This meant that the Respondents would make payments directly to the hospitals without involvement of any exchange of cash between the Respondent and the Appellant. The Appellant's wife continued to follow up with April International through several phone calls. However, since there was no response, the Appellant made the payment of the invoice by credit card on 30.10.2015. On 02.11.2015, the Appellant's wife wrote an email to the Respondent Nos. 1 and 3 and April International, providing the letter from Dr. Francesca Rubulotta (treating doctor at Charing Cross Hospital), which stated that the Appellant was critically ill and was at the risk of death due to which he underwent an emergency laparotomy with subtotal colectomy and end ileostomy. She requested that payments be released towards the initial invoice raised by Charing Cross Hospital, as per the terms and conditions of the insurance policy. On 04.11.2015, the Appellant was discharged from Charing Cross Hospital. On 05.11.2015, the Appellant's wife sent a copy of the second invoice raised by Charing Cross Hospital for an amount of GBP 5,586 to Respondent Nos. 1 and 3 and April International. On 05.11.2015, the Appellant's son, who had made efforts to follow up with Respondent Nos. 1 and 3 regarding the insurance claim, received an email from Mr. Chandra Shekhar Bakshi, an insurance agent of the Appellant, stating that Respondent No. 3 has confirmed that reimbursement will be made to the Appellant. At the same time, on 19.11.2015, the Appellant was contacted by Charing Cross Hospital and asked to come in for a Whole Body PET Scan. An invoice for the same was raised for an amount of GBP 2,325. In a followed of the appellant on 27.11.2015, Dr. Charles Lowdell, Consultant in Clinical Oncology diagnosed him with a cancerous tumour and was recommended to approach an Oncologist. The Appellant and his wife finally returned to New Delhi on 04.12.2015. 

5.2       On 08.12.2015, the Appellant filed claim forms for himself and his wife  along with all supporting documents with the Respondent No. 2 for the following expenses which were paid by him: 

1. Invoice No. 10159049 dated 19.11.2015 from Charing Cross Hospital amounting to GBP 2,325. 
2. Invoice No. H0124644 dated 04.11.2015 from Charing Cross Hospital amounting to GBP 5,586. 
3. Invoice No. H0124368 dated 28.10.2015 from Charing Cross Hospital amounting to GBP 10,368. 
4. Card statement for payment of Injections and Dressings dated 09.11.2015 and 02.12.2015 amounting to GBP 15.66. 
5. Receipt for Fresutin Energy Drink dated 07.11.2015 amounting to GBP 5.98.
6. Receipt No. 8823 from Ganga Ram Hospital dated 07.12.2015 amounting to Rs. 1,500/-. 
7. Letter from Virgin Atlantic Airlines confirming amount of GBP 1255.98 paid for rescheduling return flight ticket of Mr. Ashok Bhatia, and amount of GBP 920.91 paid for rescheduling return flight ticket of Mrs. Gita Bhatia due to hospitalization of Mr. Ashok Bhatia in London, from 20.10.2015 to 04.12.2015.

Appellant wrote several emails to the respondents regarding his claim, but no response was received from them. On 29.01.2016, the Appellant received a letter from the Respondent No. 3 thereby rejecting the claim of the appellant stating that the policy provides for coverage for trip curtailment if the insured return early to India and not due to postponement due to illness and hence the claim was not admissible. The Respondent No.3 rejected the Complainant's claim under Trip Cancellation/Curtailment while conveniently quoting a part of Section L of the Travel Insurance Policies. Appellant again wrote an email on 03.02.2016 to the Respondent Nos. 2 and 3, stating that he had spoken with one Mr. Jadhav, an executive of the Respondent No. 3, who had said that he would check the terms and conditions of the travel insurance policy regarding the "Trip Delay" clause, and revert to the Appellant. 

5.3       On 12.02.2016, the Respondent No. 3 wrote an email to the Appellant, unilaterally stating that only a sum of USD 12,400 under "Medical Expenses" head will be paid to the hospital in London towards full and final settlement of the claim since that is the maximum amount for which coverage is provided under the insurance policy. Appellant again wrote several emails to the respondents for settling his full claim. In response to his emails, on 30.03.2016, the Appellant received a letter from the Respondent No. 3 along with a cheque dated 30.03.2016 numbered 304630 only for an amount of Rs.8,10,216/- allegedly towards full and final settlement of the claim amounting to USD 12,400 after deducting USD 100, as per the terms and conditions of the Travel Insurance Policies. Being aggrieved, the appellant filed the complaint before State Commission which was dismissed by the State Commission on the grounds as reproduced above. Hence present first appeal has been filed before this Commission with the following prayer:

1. Set aside the Impugned Order dated 4.1.2016 passed by the Hon'ble State Commission and remand the matter to the Hon'ble State Commission to decide the dispute on merits; 
2. Pass any other orders / directions which this Hon'ble Commission may deem fit and proper.

6.         We have heard the learned counsel for the appellant and have gone through the impugned order as also various documents on record. Appellant and respondent no. 2 have also filed their short synopsis of arguments. The appellant insists that the dismissal on the ground that the appellant accepted the full and final settlement is not justified because the appellant immediately after the unilateral communication dated 30.03.2016 from the insured regarding the “full and final settlement of the claim” the had lodged a protest on 16.04.2016 which has also been noted by the State Commission. The State Commission erred in considering such unilateral action of the insurer as a “settlement” which is supposed in law to be a bilateral action. The State Commission therefore erred in relying on the decisions cited in its order which are not applicable for the reason that the appellant has never accepted the settlement offered by the insurer The communication dated 16.04.2016 sent by the appellant clearly mentioned that the amount is being accepted towards on account payment of the claimed amount of nearly Rs.20 lakhs and without prejudice to our right and contentions to initiate legal action. It is not disputed that the communication from the insurer categorically mentioned that the amount was towards full and final settlement of the claim under the policies:

Dear Sir/Madam,

Re:-Your claim under Overseas Mediclaim Policy No. 30/PLAN SMART-250K/021600 /46/14/39/90503098-MEDICAL

This has reference to your above mentioned claim for US $ 12,500.00

We have pleasure in enclosing a cheque no.304630 dated 30/03/2016 for Rs.8,10,216/- (Rupees Eight Lakhs Ten Thousand Two Hundred Sixteen only) drawn on ICICI Bank, Prabhadevi Branch, Mumbai-400028, towards full and final settlement of your claim.

Please note the amount is arrived at after applying deductible of US $ 100.00 under ‘Section A’ for the above policy.

7.         We note that the insured took 16 days in re-contacting the Insurer in taking up the matter after accepting the settlement amount. We agree with the finding of the State Commission that delayed grievance or would indicate and establish the satisfactory and wilful nature of the settlement between the parties. When the claim under contract of insurance between the parties is duly settled fully and finally by the Insurer, it is obvious that no deficiency in service can be alleged or found subsequently unless specific and credible evidence of absence of free consent, or financial distress (prompting acceptance of offer of unjust settlement amount)  is placed on record by the insured. The  authorities relied upon by the insurer and by the State Commission unequivocally bring out the law to the effect that once parties to the insurance contract have settled the dispute fully and finally, it does not remain open to the insured to thereafter further litigate the matter unless such settlement is vitiated by coercion, fraud or undue influence. The fact that the air fare loss suffered by the insured on account of rescheduling of the flight, which has been claimed under Section L of the policy, would not be payable as per the express language of the clause, was duly informed by the insurer as early as on 29.01.2016. However, though reminders for settlement were sent by the appellant, no categorical communication disputing the communication dated 29.01.2016 appears to have been sent by the insured. Not only that there is no evidence on record to establish the circumstances, if any, establishing the vitiating of the insured’s acceptance of settlement, the fact that no grievance was raised for 16 days after the acceptance of amount under settlement and that the amount was accepted even after positive communication from the insured dated 29.01.2016, would indeed go to establish that the acceptance of amount was towards agreed settlement. Therefore, we find no error in the decision of the State Commission in dismissing the complaint on the ground of absence of any deficiency in service on the part of the insurer in view of the acceptance of amount by the insured towards the claim which has been fully and finally settled. 

8.         Moreover, on merits also we find that the whole of the sum assured with regard to the coverage of medical expenses has been duly reimbursed by the insurer. With regard to flight rescheduling loss/expenses, it was informed on 29.01.2016 to the insured that “you may note from above that the policy provides coverage for trip curtailment if the insured return early to India. In present case wo note that due to your illness the trip was postponed. Please note that the policy does not provide any coverage for trip postponement. Hence the claim is not admissible.”  and further that  the flight rescheduling loss shall not be reimbursable because the same is not covered under Section L of the policy which is reproduced as under: 

SECTION L - TRIP CANCELLATION/CURTAILMENT:

In the event of cancellation/curtailment of trip due to necessary and unavoidable reasons as stated below, the Company will indemnify the insured subject to limits shown in the schedule, for loss of personal accommodation, visa charges, any sightseeing booked in advance, cruise ticket and travel charges paid or contracted to be paid by the insured, which are not recoverable from any other source. 

1. Cancellation before the trip because of 

1. Death of Insured/Insured spouse, children, parent or parents-in-laws
2. Death of brother or sister of the insured 15 days prior to the departure date as stated in the policy.

d. serious injury, sudden sickness of Insured, insured's spouse or spouse or parent or parent-in-law or child requiring hospitalization for more than 24 hours.

c.   Compulsory quarantine or prevention of travel by Government of India.

2. Curtailment (the cutting short by early return to India) of the trip because of:

a.   Death, serious injury or sudden major sickness of insured/insured spouse, child or parents/parent in laws residing in India at the time of incident, (While the insured is on a atrip abroad).

b.   The hijack of an aircraft in which insured persons is travelling as a fare paying passenger.

c.   Death of Brother or Sister of the insured in India.

8.1       The plain reading of Section L of the policy leaves no manner of doubt in our mind that, as rightly informed to the appellant by the insurer, the coverage is provided only for “curtailment of the trip” or “cancellation of the trip” on account of the events listed.  Moreover, for the coverage to get triggered, either the whole trip (i.e. departure from India) need to get cancelled before start or the duration of the trip need to be curtailed requiring urgent return and consequent rescheduling of return journey. Admittedly, nothing of the sort has happened. There is no coverage for expenses incurred for extending the trip for whatever reason.  Therefore, even on merits, no fault or can be found in the action of the insurer in refusing to reimburse the expenses for rescheduling the return journey so as to extend the trip which is  not covered under the policy. No error therefore is found in the order of the State Commission in refusing to interfere in the matter. 

9.         There being no merit in the appeal, the same is dismissed.