State Consumer Disputes Redressal Commission
Future Generali India Insurance Co. ... vs Hardev Singh on 5 August, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1200 of 2014
Date of institution: 27.8.2014
Date of Decision: 5.8.2015
1. Future Generali India Insurance Co. Ltd., having its registered office
6th Floor, Tower-3, India Bulls Finance Centre, Senapati Bapat Marg,
Elphinstone Road, Mumbai 400 013 and at D4-6 Unit No. 110 to 115
Krishna Apra Business Square, Netaji Subhash Place, New Delhi-
110034 through Khushbu Tyagi, Senior Executive Legal.
2. The Policy Serving Officer, Future Generali India Insurance
Company Limited, SCO No. 78-79, 2nd and 3rd Floor, Sector 17-C,
Chandigarh.
Appellants/Op Nos. 1 & 2
Versus
1. Hardev Singh Arshi Arshi son of Sh. Jangir Singh, resident of H. No.
3, Taroge Nagar, Dr. Mela Ram Road, Bathinda.
Respondent No.1/Complainant
2. Pankaj Sharma, Branch Incharge, Paul Merchants Limited, New
Cloth Market, Near Hanuman Chowk, Bathinda.
Respondents No.2/Op No.3
First Appeal against the order dated 7.7.2014
passed by the District Consumer Disputes
Redressal Forum, Bathinda.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
First Appeal No. 1200 of 2014 2
For the appellants : Sh. Vishal Aggarwal, Advocate
For respondent No.1 : Sh. S.S. Bhinder, Advocate
For respondent no.2 : Sh. Peeush Atri, Law Officer
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellants/OP Nos. 1&2 (hereinafter referred as "OP Nos.1&2") have filed the present appeal against the order dated 7.7.2014 passed by the District Consumer Disputes Redressal Forum, Bathinda(hereinafter referred as the District Forum) in consumer complaint No.108 dated 24.1.2014 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as the complainant) was allowed with a direction to Op Nos. 1 & 2 to pay a sum of Rs. 3,98,490/- incurred by the complainant on his medical tests alongwith interest @ 9% p.a. w.e.f. 1.10.2013 and also pay Rs. 25,000/- as compensation and costs. The amount was ordered to be paid within 45 days from the date of receipt of the order, failing which it will carry interest @ 9% p.a. till realization.
2. A consumer complaint was filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') against the OPs on the averments that the complainant wanted to visit Canada alognwith his wife to see his relatives, therefore, he approached Op No. 3 agent of Op Nos. 1 & 2 and discussed his plan and explained all type of information. On the advice of Op No. 3, the complainant got a Travel Suraksha Individual Policy bearing No. 2013-T-0271465-FTI having customer ID 19819387. Before getting the policy all the information required by the Ops was given to Op No. First Appeal No. 1200 of 2014 3 3 regarding his health. He paid Rs. 8464/- on 7.8.2013 for two persons in cash and the policy issued was effective from 12.8.2013 to 10.10.2013, which included travelling inconvenience, hijack, benefit, loss of passport and personal care, which included baggage delay, baggage loss, financial emergency etc.. The complainant started journey on 12.8.2013 for travel to Canada and stayed there and was proposed to come back on 6.10.2013. However, all of a sudden, he felt acute pain in his head on 1.10.2013 and was got admitted in Guelph General Hospital, Ontario qua numbness feeling in left hand pain to arm, shoulder and acute pain to body, mils dry cough. The hospital authorities found that the complainant was conscious, chest heaviness, pressure in digestion, radiation in jaws, shortness of breath, nausea, diaphoresis. Routine tests were done and the complainant was discharged without prescribing any medicine. The bill of the hospital was Rs. 6622.35 Canadian Dollar. The complainant informed the Op and lodged claim No. MO 39414.25 on 2.10.2013 through telephone and gave details of illness and treatment taken at the hospital. The Ops then sent information through internet on 3.10.2013 vide which necessary claim form and procedure was sent to the complainant vide letter dated 6.10.2013. OP sought necessary details/information consisting of date of arrival overseas, scheduled date of return to India, future line of treatment suggested by the Doctor, contact details of the Doctor in India, which were furnished to the Op on 10.10.2013. On 23.10.2013, the complainant sent a reminder to the Op and informed that the payment is to be made to the Hospital authorities on or before 30.10.2013 and requested for First Appeal No. 1200 of 2014 4 early payment. The OP sent an email on 26.10.2013 vide which the complainant was informed that the process of past medical history from Dr. Praveer Aggarwal was in process, however, no payment was made. Similar reply was given by OP on 29.10.2013. Since the complainant had to return to India so under compelling circumstances, he had to pay the treatment/checking charges to the hospital at Ontario amounted to Rs. 3,98,490/- from his saving bank account No. 10002675445 through cheque No. 384596 dated 28.10.2013, State Bank of Patiala, The Mall, Bathinda. On 25.11.2013, Ops again demanded original claim form duly filled in, original bills and claimed amount. Being a law abiding Citizen, the complainant again sent all those documents and one CD through courier. On 11.12.2013, Ops again started demanding additional documents. In reply to the letter, the complainant sent an email on 16.12.2013 intimating Ops that whatever history was obtained by the Ops that was never informed to the complainant and past history was obtained by them directly and the details received from Dr. Praveer Aggarwal be supplied to him also. However, the claim of the complainant was repudiated by Ops vide email/letter dated 24.12.2013 on the ground that the payment has been made by the complainant so reimbursement cannot be made to the complainant as he had not correlated with Ops. The repudiation of the claim of the Ops was thoroughly false, misconceived, illegal, arbitrary and violative of the statutory as well as contractual obligation of Ops. When the policies were issued, the Company then made false allurements/promises, showed dream of good return in the case of First Appeal No. 1200 of 2014 5 emergency but when mishap occurs then they shun their duties to make payments, swallow the hard earned money by repudiating the claim of the destitute and innocent consumers. Complainant comes within the definition of the consumer qua Ops as defined under the Act. The act of the Ops amounted to deficiency in services. Accordingly, complaint was filed seeking direction to the Ops to make payment of Rs. 3,98,490/- alongwith interest @ 18% p.a. w.e.f. 1.11.2013 till date of payment and also pay Rs. 10 lacs as compensation or any other alternative relief.
3. The complaint was contested by the Ops. Op Nos. 1 & 2 in their written reply took the legal objections that the complaint was filed by the complainant to injure the goodwill and reputation of the Ops; the complaint was false, frivolous and vexatious to his knowledge, therefore, it was liable to be dismissed under Section 26 of the Act; intricate questions of law and facts were involved, which required voluminous documents and evidence, which were not possible in the summary procedure, therefore, the matter be referred to the Civil Court; the complainant had concealed the material facts as he was having pre-existing disease to his knowledge at the time of taking the insurance, which he did not declare. He was having past history of hyper tension and surgical history of heart disease i.e. coronary artery disease for which stent was put in chest in 2012, therefore, the claim was not payable; the complainant was not a consumer qua the OP, therefore, the claim was not payable; the complainant was not a consumer qua the Op, therefore, he had no locus standi to file the present complaint and that the present form First Appeal No. 1200 of 2014 6 was not maintainable. On merits, issuance of the travel Suraksha Policy No. 2013-T0271465-FTI as alleged in the complaint was issued by Ops for the period 12.8.2013 to 10.10.2013. However, this policy was issued as per the information provided by the complainant. The policy does not cover existing disease, which he had concealed. Insurance is a contract between the parties and both the parties are bound by the terms and conditions, the complainant was claiming that there was some general symptoms of shoulder pain in indigestion problems, chest heaviness etc. but attached discharge summary from the treating hospital, Guelph General Hospital and Europ Assistance India clearly mentioned the exact presenting symptoms and final diagnosis as reported by the hospital at the instance of the complainant, which proved that the complainant had past medical history of hyper tension and heart surgery, whereas this information was not given by the complainant at the time of taking the policy. CT Scan of chest and abdomen, investigations was done to cross check, if there was any other complication to the heart ailment. Ops vide their letter dated 6.10.2013 had sought necessary details for deciding the approval. However, complete information was not available with the service provider and procedure was initiated to procure details from the local medical officer i.e. Dr. Praveer. Complete test history was mandatory to decide the admissibility of the claim. Since the complainant himself made the payment to the hospital, therefore, the claim was converted into reimbursement. The complete details were not submitted by the complainant. It was denied that Ops adopted delaying tactics or harassed the complainant in any manner. It was First Appeal No. 1200 of 2014 7 denied that the policy holder was having good health at the time of taking the policy. He was having a history of hyper tension and surgical history of stent in chest. It was denied that the Ops avoided to make the payment in accordance with the policy terms and conditions. The payments are to be made in accordance with the terms and conditions of the policy. It was denied that they were in habit to swallow the hard earned money of consumers. The claim was not payable, therefore, it was repudiated according to the terms and conditions of the policy. There was no deficiency in services on the part of Ops. The complaint was without merit, therefore, it be dismissed.
4. Op No. 3 in its written reply took the preliminary objections that the complainant had got no locus-standi or cause of action against this Op to file the complaint as he was merely an agent of Op Nos. 1 & 2 and did not have any legal liability towards the complainant; the complainant was not a consumer qua OP No. 3; complainant was estopped from filing this complaint against this OP by his own act and conduct; the complainant did not disclose any cause of action against this OP; the complaint was clearly mis- conceived and abuse of process of law and that the complaint was false, frivolous and vexatious, therefore, liable to be dismissed with special costs. On merits, it was admitted that the complainant through this Op had got the insurance policy in question. However, there was no influence upon the complainant on the part of this OP and the amount paid by the complainant for the same was deposited with Op Nos. 1 & 2. Policy was issued by Op Nos. 1 & 2. There was no First Appeal No. 1200 of 2014 8 allurement on the part of this Op to the complainant. Other averments of the complaint were denied. It was again reiterated that Op No. 3 was merely an agent of Op Nos. 1 & 2 and no liability towards complainant liability, if any, was against OP Nos. 1 & 2. Complaint against this OP was without any merit, therefore, it be dismissed.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence affidavit of Hardev Singh Arshi Ex. C-1 & 9, receipt voucher Ex. C-2, letter Ex. C-3, premium receipt Ex. C-4, policy schedule Ex. C-5, emails Exs. C-6 to 8, emails Exs. C-10 t0 19, invoice Ex. C-20, payment receipts/invoice Exs. C-21 to 23, emails Exs. C-24 to 26, letters Exs. C-27 & 28, emails Exs. C-29 to 33, letter Ex. C-34, certificate Ex. C-35, email Ex. C-36. On the other hand, OPs No. 1 & 2 had tendered into evidence affidavit of Prerna Jain Ex. Op-1/1, policy Ex. Op-1/2, proposal Exs. Op-1/3 & 4, claim inquiry Ex. Op-1/5, travel suraksha individual Ex. Op-1/6, premium receipt Ex. Op-1/7, medical report Ex. Op-1/8, additional comments Ex. Op-1/9, letter Ex. Op-1/10, email Ex. Op-1/11, emergency physician record Ex. Op-1/12 to 15, email Ex. Op-13 & 14, letter Ex. Op-1/15, email Ex. Op-1/16, authorisation Ex. Op-1/17 and Op No. 3 tendered affidavit of Pankaj Sharma Ex. Op-3/1.
7. After going through the allegations in the complaint, written replies filed by the OPs, evidence and documents brought on the record, the complaint was allowed as referred above. First Appeal No. 1200 of 2014 9
8. Aggrieved with the order passed by the learned District Forum, the appellants/OPs have filed the present appeal.
9. We have heard the learned counsel for the parties.
10. It has been argued by the counsel for the appellants/Ops that the order passed by the District Forum is against the terms and conditions of the policy. The complainant had taken the policy without disclosing his pre-existing disease as he had the history of chronic disease wherein he had undergone aortic stenting angiography in the year 2012 and as per terms and conditions of the policy point 2.4.12, 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. He has referred to the proposal form Ex. Op-1/3 in which pre-existing disease has been referred as Nil and in the medical report/recommendations Ex. Op-1/8, it has been mentioned as "Preexisting/ Past Medical History : Hypertension, CAD (Angioplasty - ?20TH JULY 2012 Endovascular Repair of Disecting Aortic Aneurysm in June 2012 (Not Disclosed), therefore, the report of 'europ assistance' referred above has indicated about the pre-existing disease with the complainant and he has taken the treatment with regard to that disease only. So far as the proposal form is concerned, it has been stated that the proposal form placed on the record does not bear the signatures of the complainant, therefore, any proposal form without the signatures of the insured is of no value, therefore, no findings can be recorded against the complainant that at the time of taking the policy, he has concealed his pre-existing disease. First Appeal No. 1200 of 2014 10
11. Now what type of the treatment was taken by the complainant and whether it had any nexus of the treatment taken by the complainant from Guelph General Hospital, Canada. The Discharge summary of the hospital is as under:-
"Indications :
62-year-old male. History of aortic stent. Chest pain. Stent migration? Dissection?
Comparison:
None.
Technique :
Helical angiographic acquisition. Corornal reconstructions were performed.
Findings:
Vascular Findings There is a stent present within the thoracic abdominal aorta. It is unremarkable in appearance. No evidence of complication. Maximum transverse diameter of the underlying aorta is 3.9 cm. The remainder of the visualized thoracoabdominal aorta is unremarkable. There is no evidence of dissection. There is mild mixed atherosclerotic disease within the abdominal aorta. There is routine arch anatomy. The aortic branches are well- opacified.
Nonvascular findings The hear, hila, and remainder of the visualized mediastinal structures are within normal limits. There is no lymphadenopathy. There is no pericardial effusion. First Appeal No. 1200 of 2014 11 The lung apices are not visualized. There is a round 8.6 mm pulmonary nodule anteriorly within the mid left upper lobe. No other suspicious pulmonary nodules or masses. There mils dependent changes. There are no pleural effusions. The liver, intra and extrahepatic biliary tree, pancreas, and spleen are normal.
The kidneys and adrenal glands are within normal limits. The visualized large and small bowel and mesentery are clear. There are no suspicious soft tissue or bone abnormalities. Opinion :
Unremarkable thoracic aortic stent. No evidence of aortic dissection. No acute intrathoracic findings. 8.6 mm pulmonary nodule in the left upper lobe. This should be followed up in 3-6 months' time.
Chest X-ray:
The cardiac silhouette is of normal size and configuration. The mediastinal and hilar contours are normal. Evidence of descending thoracic aorta stenting. The lungs are clear.
No evidence of cardiac decompensation, airspace consolidation or pleural disease.
Conclusion : Nil acute."
12. The abovesaid report will make it clear that there was no evidence of cardiac decompenstion, airspace consolidation or pleural disease, therefore, no treatment was taken with regard to stenting already taken by the complainant in the year 2012. Therefore, in case First Appeal No. 1200 of 2014 12 the treatment taken by the complainant had no nexus with the pre- existing disease then under the policy, they cannot repudiate the claim of the complainant, which is admissible under the policy. Therefore, the claim of the complainant cannot be repudiated only on the ground that he had some heart problem before taking the policy. The complainant has placed on the record invoice payment, which reads as under:-
Service Date Description Amount
CAT SCANS
1.10.13 X232C C.T. Scan Pelvis I.V. 1 1447.50
1.10.13 X407C C.T. Scan Thorax I.V. 1 1425.85
1.10.13 X410C C.T. Scan - Abdomen I.V. 1 1447.50
1.10.13 X417C 3D Angio Reconstruction 1 1382.70
EMERGENCY ROOM CHARGES 5703.55
1.10.13 EMERG Emergency Visit: CP Cardiac Features 1 574.00
LAB OUT PATIENT SELF PAY
1.10.13 LAB Lab Blood, Urine, Misc Tests, 80 Units at 80 128.00
$1.60
RADIOLOGY
1.10.13 X091B Xray Chest 2 Views 1 43.80
1.10.13 X091C Xray Chest 2 Views 1 21.50
65.30
CONCERNING CHEST PAIN
Comprehensive Oct 1, 2013 1 92.15
Assess. (17-24M-F) :
H132A
Re-Assess(17-24, Mon- Oct 1, 2013 1 37.25
Fri.):H134A
Paid to Date 129.40
ELECTROCARDIGRAM
1.10.13 G310A ECG T-Fee 1 11.20
1.10.13 G313A ECG P-Fee 1 8.90
22.10
13. The counsel for the appellants/OPs has pointed out that there is limitation to make the payment under the terms and conditions of the policy. He has referred to specific condition for age First Appeal No. 1200 of 2014 13 limit of 56-70 years and the complainant falls within this age group, for that the following maximum eligible expenses for accident/illness are applicable regardless of the plan/option purchased, which are as under:-
"Specific Condition for Age Limit of 56 to 70 years The following maximum eligible expenses per Accident/illness are applicable to the Insured Persons Aged 56-70, regardless of the plan / option purchased.
• Hospital Room and Board and Hospital misc. Maximum @1750 per day up to 30 days.
• Intensive Care Unit Maximum $2500 per day up to 7 days. • Surgical Treatment maximum $ 12500 • Anesthetist Services up to 25% of Surgical Treatment. • Physician's Visit Maximum $ 75 for 10 visits. • Diagnostic and Pre-admission Testing Maximum @ 1000 • Ambulance (medical services en-route) Services Maximum $
500. These are further restricted to the Limit of Indemnity."
According to terms and conditions diagnostic and pre-admission tests, maximum $1000, hospital room and Board and Hospital Misc. Maximum $1750 per day upto 30 days and surgical treatment maximum $ 12500 and physician's visit $75 for 10 visits. Most of the items are of diagnostic tests, therefore, under the head Diagnostic tests, the complainant will be entitled to $1000. Then there is treatment 3D angio reconstruction for which he paid $1382.70, he will be entitled to this amount and emergency room charges $574.00 has First Appeal No. 1200 of 2014 14 been paid by him, therefore, he will be entitled to this amount also. Whereas the counsel for the appellants has taken the plea that the complainant will be entitled to only $1000, but this is restricted only to the diagnostic tests. In case according to the limitations referred above, he is entitled to other claims then he will be entitled to these claims as well, therefore, in our opinion, the complainant will be entitled to $2956.70. Therefore, in all the complainant will be entitled to abovesaid amount whereas the learned District Forum has allowed the entire amount without going through the limitations with regard to payment of amount as per the terms and conditions of the policy. We cannot go beyond the terms and conditions of the policy. Both the parties are bound by them and Consumer Forum does not vest with any power to go beyond the terms and conditions of the policy while passing the claim. In these circumstances, the order so passed by the learned District Forum requires modification.
14. In view of the above, we partly accept the appeal. Instead of Rs. 3,98,490/- equal to $6622.35 Canadian Dollar, the complainant will be entitled equal to 2956.70($)Canadian Dollar i.e. Rs. 1,77,915/- and compensation of Rs. 25,000/-. Other terms of the order will remain as it is.
15. The appellants had deposited an amount of Rs. 25,000/- & Rs. 25,000/- in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to respondent No. 1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court. First Appeal No. 1200 of 2014 15
16. Remaining amount, if any due, shall be paid by the appellant to respondent No.1/complainant within 30 days from the receipt of the copy of the order.
17. The arguments in this appeal were heard on 22.7.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member August 5, 2015. (Surinder Pal Kaur) as Member