State Consumer Disputes Redressal Commission
Future Generali India Insurance Co. ... vs 1. Yashaan Chopra on 5 June, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 138 of 2013 Date of Institution : 01.04.2013 Date of Decision : 05.06.2013 Future Generali India Insurance Co. Limited, situated at SCO 78-79, 2nd Floor, Sector-17-C, Chandigarh, filed through its Senior Executive Legal, Karan Nangla. --Appellant/Opposite Party No.1 V e r s u s 1. Yashaan Chopra son of Sh. Vikram Chopra, Resident of House No . 1467, Sector 23-B, Chandigarh. ..Respondent/complainant 2. Europe Assistance India Pvt. Ltd., through its Manager/G.M. 301, C Wing, Business Square, Andheri Kurla Road, Chakala, Andheri (East), Mumbai 400093. ..Proforma Respondent no.1/Opposite Party No.3 3. Europe Assistance India Pvt. Ltd., through its MD/C.M.D. 301, C Wing, Business Square, Andheri Kurla Road, Chakala, Andheri (East), Mumbai 400093. ..Proforma Respondent no.2/Opposite Party No.4 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER, PRESIDENT(RETD) MR. DEV RAJ, MEMBER
Argued by:Sh.Vishal Aggarwal, Advocate for the appellant.
Sh.R.M.Dutta, Advocate for respondent No.1 Respondents No.2 and 3 exparte PER JUSTICE SHAM SUNDER(RETD) , PRESIDENT This appeal is directed against the majority order dated 19.02.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties, (now one of which is the appellant/Opposite Party No.1), jointly and severally, as under ;
Hence, in the light of above observations, we find a definite deficiency in service on the part of the Opposite Parties in denying the rightful claim of the complainant. The present complaint of theComplainant succeeds against the OPs, jointly & severally, and the same is allowed. The Opposite Parties are directed to: -
(i) Pay a sum equivalent to SGD 7562 (Singapore Dollars), the cost of treatment incurred by the Complainant on his treatment.
ii) Pay compensation of Rs.50,000/- for mental harassment and agony to the Complainant;
iii) Litigation expenses to the tune of Rs.7,000/-;
The above said order shall be complied within 30 days of its receipt by Opposite Parties; thereafter, Opposite Parties shall be liable for an interest @18% per annum on the SGD 7562 (Singapore Dollars) from the date of the treatment of the Complainant plus Rs.50,000/-, till it is paid, besides Rs.10,000/- towards cost of litigation.
2. However, one Member of the said District Forum recorded dissenting order dated 26.02.2013 vide which she dismissed the complaint, with no order as to costs.
3. The facts, in brief, are that the complainant, who is a student, alongwith his family members, booked advance air tickets, in the month of February, 2011, for a trip to Singapore, in the month of June,2011. At that time, the complainant, as well as his family members, subscribed to an insurance cover for USD 50000 on payment of Rs.1620/-, as premium, for various benefits, alongwith medical care, for any ailment, with which they may be afflicted, during their travel outside India, through Opposite Party No.1, under the Travel Suraksha Family Floater, valid for the period from 15.06.2011 to 26.06.2011 (mid night). It was stated that the complainant had already been a subscriber to a Family Medicare Policy, purchased from the United India Insurance Company Ltd., regularly, since February 2009. It was further stated that the complainant was not suffering from any ailment or pre-existing disease.
4. On reaching Singapore, on 16.06.2011, all of a sudden, the complainant developed severe pain, in his abdomen, and was hospitalized immediately, at Mount Elizabeth Hospital, Parkway Hospitals Singapore Pte Ltd., 3 Mount Elizabeth Singapore 228510. He underwent a simple procedure. He remained admitted, in the said Hospital for one day. The bill was issued by the said Hospital, copy whereof is Annexure C4. It was further stated that since it was a cashless Mediclaim Policy, the complainant informed the Hospital Authorities, as well as the Opposite Parties of the ailment. He was shocked to know that the Opposite Parties failed to release the amount, incurred by him, on his treatment, aforesaid, deliberately, and caused him a great discomfort, as he was not carrying enough cash with him, to pay his hospital bills, in a foreign Country. The complainant had to arrange money, from his travel agent, and incurred an unnecessary debit.
5. Ultimately, the complainant received a letter dated 23.06.2011, from the Opposite Parties, wherein, it was intimated to him, that his claim had been repudiated, on the ground, that he was suffering from a pre-existing disease, which he concealed, at the time of getting him insured. The complainant, however, denied such an assertion of the Opposite Parties, stating that he had already been a subscriber to a Mediclaim Health Policy, from the United India Insurance Company Ltd., for the last 3 years, and never suffered from any disease, during this period. It was further stated that the repudiation of the claim of the complainant, on the part of the Opposite Parties, was illegal, invalid and arbitrary. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also, indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay a sum of Rs.2,87,356/- (equivalent to Singapore $ 7562), alongwith interest @18% P.A.; compensation, in the sum of Rs.2 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.12,100/-
6. Opposite Parties No.1 and 2, in their joint written version, pleaded that the complaint was liable to be dismissed, on account of concealment of material facts, by the complainant, at the time of obtaining the Policy, in question. It was stated that the complainant was already suffering from the disease, for which he was operated upon, at Singapore, during the period of Policy, much prior to the issuance of the same, and he deliberately concealed the same. It was further stated that, as such, the repudiation of his claim was legal and valid. It was further stated that the discharge summary issued by the Mount Elizabeth Hospital, Singapore, where the complainant was operated upon, showed that he had a bout of similar infection, three weeks earlier, but, at that time, he had refused circumcision. It was further stated that the complainant was suffering from Phymosis (a condition of male genitals), which could be acquired after birth, due to various infections. It was further stated that, however, the most common cause of this condition, was congenital in nature. It was further stated that, as per the terms and conditions of the Policy, any claim resulting directly or indirectly from any internal or external congenital conditions, could not be reimbursed. It was further stated that since the complainant was suffering from the pre-existing disease, referred to above, and concealed this fact, at the time of obtaining the Policy, he was not liable to be indemnified. It was further stated that the contract of insurance is based on utmost good faith, and, as such, due to the concealment of the aforesaid material facts, the same stood vitiated. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7. The complainant filed rejoinder by way of affidavit, wherein, he reasserted all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Parties No.1 and 2.
8. Opposite Parties No.3 and 4, were duly served, but no authorized representative, on their behalf, put in appearance. Accordingly, they were proceeded against ex parte, vide order dated 17.11.2011.
9. On 18.02.2013, when the complaint was fixed for final arguments, none appeared on behalf of Opposite Parties No.1 and 2. The District Forum, however, decided to proceed further and dispose of the complaint, on merits, as envisaged by Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13 (2) of the Consumer Protection Act, 1986 (as amended upto date), in the absence of Opposite Parties No.1 and 2.
10. The complainant and Opposite Parties No.1 and 2, led evidence, in support of their case.
11. After hearing the Counsel for the complainant, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint vide majority order dated 19.02.2013, as stated above, in the opening paragraph of the instant order.
12. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party No.1.
13. Despite service, none appeared on behalf of respondents no.2 and 3, as a result whereof, they were proceeded against exparte.
14. We have heard the Counsel for the appellant, respondent no.1, and have gone through the evidence and record of the case, carefully.
15. Admittedly, the complainant, and his family members obtained Travel Suraksha Family Floater insurance cover, Annexure C-3, valid for the period from 15.06.2011 to 26.06.2011 (mid night), from Opposite Party No.1 (now the appellant), for the period of their travel outside India, as they had planned to go to Singapore, in the month of June, 2011. There is also, no dispute, about the factum, that the complainant, was earlier subscriber to a Family Medicare Policy, and purchased two Insurance Policies, from the United India Insurance Company Limited, regularly, since 2009 (February). It was proved from the evidence, on record, that the complainant suffered an infection, and was admitted in the Mount Elizabeth Hospital, Parkway Hospitals Singapore Pte Ltd., 3 Mount Elizabeth Singapore 228510, in the late hours of 16.06.2011, and remained hospitalized for one day. He was discharged from the hospital on 17.06.2011, as is evident, from Annexure C-4. Alongwith Annexure C-4, copies of record, with regard to his first consultation/case evaluation/post operation notes, are attached. It is evident, from this document, at pages 143 and145, attached with Annexure C-4, that the complainant presented himself, with the symptoms of 1) acute retention of urine and 2) acute balanitis. Under the column relation, if any, of the present illness with past or existing chronic illness, the word none was written. Under the heading is the present ailment related to indulgence in alcohol/tobacco products/narcotic abuse, the word no, was written. The provisional diagnosis/differential diagnosis, which was made by the concerned Doctor, attending on the complainant was balanitis with acute urinary retention. Against the column of treatment initiated, it was written catheterization failed because of swollen/tight foreskin. Hence, admitted for emergency circumcision and catheterization. Under the heading investigations requested/advised it was written as none needed-only emergency surgery. Against the column of proposed history stay, it was written as one day. It is further evident, from the operations notes at page 145/14 of the District Forum file, that it took 30 minutes, for conducting operation. Under the heading surgical procedure, it was written as circumcision + catheterization. Against the column recovery from anesthesia, full was written. It is further evident, from this document, that there was full recovery of the complainant. Under the heading post operation/surgery treatment initiated, following observations were made Catheter removed on 17 June 2011. Able to pass urine. Circumcision wound. No active bleed, minimal pain, for daily dressing until healed. Dr. Chin Chong Min, Consultant Urologist, MBBS FRCS MMED FAMS MCR 041591 signed the operation notes. At page 147/77 there is a letter written by Dr. Chin Chong Min, which reads as under:-
UROLOGY SPECIALIST REPORT OF CHOPRA, YASHAAN DOB 11July 1992, M/18 yrs Period of Admission: 16 to 17 June 2011 Mr. Chopra came to Mt. Elizabeth Hospital as an emergency case because of sudden inability to pass urine due to foreskin infection. On examination, he was in pain, his bladder was distended up to umbilicus, and the foreskin was grossly swollen. Attempts to insert a urinary catheter failed because of the tight and swollen foreskin. As such, he had to be admitted for emergency circumcision and catheterization.
Surgery was performed at 1 am on 17 June under general anesthesia. The swollen foreskin was excised to expose the glans penis, and Foley catheter inserted. One litre of urine was drained from the bladder.
The catheter was removed the next day. He is able to pass urine now. From here on, it is a matter of dressing the circumcision wound daily till it heals. This may take a week or so. To prevent infection, antibolic tablets and cream have been given. Supplies for dressing have also been given because he is travelling. He may need nursing assistance to help with the wound cleaning and dressing.
He is fit to fly.
Medication given: Panadeine 2 tabs thrice daily x 5 days.
Arcoxia 60 mg twice daily x 5 days.
Augmentin 625 mg twice daily x 1 week.
Bactroban cream twice daily application.
Chlorhexidine solution x 2 litres.
Urological Diagnosis: Acute Balanitis causing Acute Retention of Urine.
Management Plan: Emergency Circumcision and Catheterisation.
Yours sincerely Sd/-
Dr. Chin Chong Min.
16. From this document, it is not proved that the complainant was having preexisting disease. Had the complainant been suffering from any preexisting disease and had he taken treatment, for the same, the Doctor concerned would have certainly written, in the case history Annexure C-4, referred to above. As stated above, the complainant had been subscribing to the Health Insurance Policies, for the last three years, from some other Company, preceding the instant Policy, from 15.06.2011 to 26.06.2011. Had he been suffering from any preexisting disease, at the time of taking the Policies, for three years, preceding the instant Policy, or had taken treatment, from some hospital or undergone surgery, that fact would have certainly been recorded, at the time of filling the proposal forms, for obtaining those Policies. Even, the complainant was given no claim bonus, in respect of those Policies, when he took Travel Suraksha Family Floater Policy, in the instant case, for the period from 15.06.2011 to 26.06.2011 (mid night). The District Forum, was, thus, right in holding that the complainant was not suffering from any preexisting disease, but, on the other hand, he suffered from the disease, in question, all of a sudden, and had to undergo emergency operation. Under these circumstances, the Opposite Parties, were not justified, in repudiating the claim of the complainant.
17. No doubt, the Counsel for the appellant, submitted that, from the record, it was proved that the complainant was suffering from preexisting disease, at the time of taking the Travel Suraksha Family Floater Policy, for the period from 15.06.2011 to 26.06.2011 (mid night). He further submitted that the complainant concealed the material information, with regard to his preexisting disease, with which, he was afflicted, and, as such, his claim was legally and validly repudiated. Reliance was placed by the appellant, on Annexure R-1/1, which according to it, was discharge/clinical summary of the complainant, after the treatment from Mount Elizabeth Hospital, Parkway Hospitals Singapore Pte Ltd., 3 Mount Elizabeth Singapore 228510, issued to him, on 17.06.2011, by the treating Doctor. According to the Counsel for the appellant, since the details mentioned in Annexure R1/1, could be said to be sufficient to prove, that the complainant was suffering from preexisting disease, and he withheld the material information, at the time of subscribing to the Policy, in question, he became disentitled to any claim. The veracity and authenticity, of this document is doubtful, for the reasons to be recorded hereinafter. According to this document, the date of admission of the complainant was written as 16.06.2011 and the time of admission is written as 23:23:34, whereas, the date of discharge, mentioned either by the treating Doctor, or some paramedical staff, was 17.06.2011, though this date is having an overwriting. The date and time printed on this document is mentioned as 16/06/2011/23:31:58. From this document, it is, thus, evident, that it came into existence, within 8 minutes and 24 seconds, from the time of admission, whereas, as per the certificate of the treating Doctor, at page 145/14 of the District Forum file, he took 30 minutes, to complete the procedure, in the Operation Theatre. It means that this document came into existence, even prior to the procedure on the complainant was completed. Not only this, though according to this document, the complainant suffered a bout of infection, some three weeks ago, but he refused the conduct of procedure of circumcision, at that time. There is nothing, on record, as to wherefrom, this information was obtained by the treating Doctor. There is nothing, in this document, to show, as to whether, the complainant was treated by any Doctor, for the alleged disease, at that time and was prescribed medicines, or any other treatment. Even the name of the Hospital, where the complainant allegedly went, at that time, and was found to be suffering from a bout of infection, was not written. Had the complainant suffered from a bout of infection, three weeks earlier to 16.06.2011, then the entire medical record of the Hospital, to which, he went, took treatment, which doctor treated him; and which medicine was prescribed to him, was required to be produced by the Opposite Parties, but they failed to do so. Not only this, these facts were also not mentioned, in Annexure R1/1. Thus, the veracity of this document, cannot be vouchsafed.
18. The details given in Annexure R1/1, with regard to the alleged bout of infection, suffered by the complainant, three weeks, prior to 16.06.2011, belong to the hospital record. No affidavit of the concerned Doctor, who allegedly mentioned these details, was produced by the Opposite Parties, to vouchsafe the authenticity of the same. In the absence of the affidavit of the treating Doctor, who allegedly recorded these details in Annexure R1/1, this document could not be relied. In the absence of any corroborative evidence, with regard to the details mentioned in Annexure R1/1, through the affidavit of the treating Doctor, the same could not be made the basis for repudiation of the claim of the complainant.
19. Not only this, even the alleged signatures of Dr. Chin Chong Min, on Annexure R1/1 are completely different from his signatures on First Consultation/Case Evaluation/Post of Notes, at page 14/145 of the District Forum file. In these circumstances, it was the bounden duty of the Opposite Parties, to produce the affidavit of the concerned Doctor, to prove that the contents contained in Annexure R/1/1 were true and genuine. This fact is also sufficient, to prove that Annexure R/1/1 document, is of doubtful authenticity.
20. The Opposite Parties moved an application for additional evidence, for producing, on record, Annexures R1/4 and R1/5, which was allowed. These were the emails exchanged between Opposite Parties No. 1 and 2 and Opposite Parties No.3 and 4. It is evident from Annexure R1/5 that the discharge summary report received from the Hospital, was numbered as 18062011.pdf., but at the same time, Opposite Parties No.1 and 2, failed to bring, on record, the same. Opposite Parties No.1 and 2 did not mention, in their reply, that the discharge summary, Annexure R1/1, was the same, which they received alongwith Annexure R1/5. Since the Opposite Parties failed to prove any co-relation between R1/1 and R1/5, their stand was not established. If the complainant had not disclosed the true facts, or concealed the same, at the time of obtaining the Policy, in question, it was the duty of the Opposite Parties, to prove the same. However, the Opposite Parties, could not prove the same.
21. In paragraph number 6 of the preliminary objections of their written version, Opposite Parties No.1 and 2, in clear-cut terms, stated that they had sought opinion of one of their own Doctors, who opined that the complainant was suffering from preexisting disease, at the time of subscribing to the instant Policy, and, as such, on the basis of such opinion, the claim of the complainant was rejected. They, thus, claimed that the opinion of their Doctor, referred to above, was in their possession. However, they failed to produce such opinion of their own Doctor, to come to the conclusion, that the complainant was suffering from preexisting disease. By not producing the opinion of their own Doctor, the Opposite Parties also withheld the material piece of evidence, from the District Forum, and, as such, an adverse inference could be drawn, against them, that had the same been produced before it (District Forum), it would have gone against their interest.
22. In this case, the District Forum, vide its majority order, awarded compensation, to the tune of Rs.50,000/-, for mental agony and physical harassment, caused to the complainant. In our considered opinion, the compensation, in the sum of Rs.50,000/-, awarded by the District Forum, vide its majority order, is excessive. The compensation should be commensurate with the facts and circumstances of the case. It should neither be excessive, nor unfair. It should be fair, adequate and reasonable. Compensation, if reduced to Rs.30,000/-, in our considered opinion, would be fair, reasonable and adequate. The majority order of the District Forum, deserves to be modified, to this extent.
23. The District Forum, vide its majority order, awarded interest @18% P.A., on the failure of the Opposite Parties, to pay the amount, awarded by it, within 30 days, from the date of receipt of a copy of its order. In our considered opinion interest @18% P.A., is excessive. If it is reduced to 9% P.A., that would be fair and reasonable. The majority order of the District Forum, deserves to be modified, to this extent also.
24. The District Forum, vide its majority order was, thus, right in holding that Opposite Parties No.1 and 2, miserably failed to prove through any cogent and convincing evidence, that the complainant was suffering from any preexisting disease. The District Forum, vide its majority order was also right, in holding that repudiation of the claim of the complainant, by Opposite Parties No.1 and 2, was illegall and arbitrary. The District Forum, vide its majority order, was also right, in holding that the Opposite Parties were deficient, in rendering service.
25. No other point, was urged, by the Counsel for the appellant and respondent no.1.
26. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The majority order of the District Forum is modified, directing the appellant/Opposite Party No.1 and Opposite Party No.2, jointly and severally, as under:-
(i).
To pay a sum of Rs.30,000/-, for mental agony and physical harassment to the complainant/respondent no.1, instead of Rs.50,000/-, as awarded by the District Forum, vide its majority order, within 30 days, from the date of receipt of a copy of this order, failing which, to pay interest @9% P.A., from the date of filing the complaint, till realization, besides making payment of cost awarded by the District Forum.
(ii).
To pay amount in Indian Currency equivalent to SGD 7562 (Singapore Dollars), i.e. the cost of treatment incurred by the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which they shall pay interest @9% P.A., on this amount, from the date of repudiation of his claim, till realization.
(iii).
Any other direction, given by the District Forum, in its majority order, which is contrary to or in variance of this order, subject to the modification aforesaid, is set aside.
27. Certified copies of this order, be sent to the parties, free of charge.
28. The file be consigned to Record Room, after completion Pronounced.
05.06.2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg