State Consumer Disputes Redressal Commission
Bajaj Allianz Life Insurance Co. Ltd. vs Vishavjot Singh on 12 May, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 770 of 2016
Date of institution : 07.10.2016
Date of decision : 12.05.2017
1. Bajaj Allianz Life Insurance Company Limited having its
Head Office/Registered office at GE Plaza, Airport Road,
Yerwada, Puna-411006 (M.H.) through its
Chairman/Managing Director or Other Authorized person.
2. Bajaj Allianz Life Insurance Company Limited having its
Branch office at Near HDFC Bank, Jalandhar Road, Batala,
District Gurdaspur-143521 through its Branch Manager.
(through Sh. Rajinder Singh Kalsi, Zonal Legal Manager, Bajaj
Allianz Life Insurance Co. Ltd., S.C.O. 215-217, Sector-34,
Chandigarh.
.......Appellants/Opposite Parties
Versus
Vishavjot Singh S/o Sh. Balwant Singh r/o 41/200, Shastri Nagar,
Batala, District Gurdaspur.
....Respondent/Complainant
First Appeal against the order dated
28.07.2016 of the District Consumer
Disputes Redressal Forum, Gurdaspur.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Sh. Gurcharan Singh Saran, Judicial Member.
First Appeal No. 770 of 2016. 2 Present:-
For the appellants : Sh. Varun Chawla, Advocate For the respondent : Ex-parte GURCHARAN SINGH SARAN, JUDICIAL MEMBER:-
Order This appeal has been preferred by appellants/opposite parties (hereinafter referred as 'OPs') under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'Act') against the order dated 28.07.2016 in C.C. No. 401 of 19.10.2015 passed by the learned District Consumer Disputes Redressal Forum, Gurdaspur (in short the 'District Forum') vide which the complaint filed by the respondent/complainant (hereinafter referred as 'complainant') was partly allowed and OPs were directed to pay the impugned claim strictly in terms of the health policy in accordance with the IRDA guidelines and also pay Rs. 5000/- as cost and compensation within 30 days from the date of the orders till actual payment.
2. Complaint was filed by the complainant under the Act against OPs alleging that the complainant was insured alongwith his family members i.e. Mrs. Manpreet Kaur (wife) & miss Vishanpreet Kaur (daughter) with the OPs for the period from 12.04.2012 to 12.04.2015 after paying the annual premium of Rs. 11,857/- alongwith other cesses and total sum assured was Rs. 5 lac and policy number 0260158836 dated 13.04.2012 was issued. The complainant was totally healthy at the time of issuance of the policy. However, on 18.06.2014, the complainant felt uneasiness and First Appeal No. 770 of 2016. 3 developed certain physical complications by way of vomiting. He was taken to Civil Hospital, Batala immediately from where he referred to Guru Nanak Dev Hospital, Amritsar for further treatment. However his attendants instead of getting him admitted in Guru Nanak Dev Hospital, Amritsar, got him admitted in Fortis Escort Hospital at Amritsar and he remained admitted there from 19.06.2014 to 27.06.2014. During this period, he incurred expenses of Rs. 65,700/-. Again on 02.08.2014, the complainant developed complications and he again remained admitted in Fortis Escort Hospital, Amritsar from 02.08.2014 to 07.08.2014 and spent a sum of Rs. 29,578/-. He again developed some complications and remained admitted there for the period from 06.10.2014 to 10.10.2014 and incurred expenses of Rs. 26,894/-. However he was unable to improve his fitness condition and he was got admitted in DMC and Hospital, Ludhiana and he remained admitted there from 21.10.2014 to 19.11.2014 and spent Rs. 3,63,021/- for the cure of the disease. The complainant again felt uneasiness in his body and he again approached DMC and Hospital 09.07.2015 and he has examined as OPD patient, the complainant was advised MRCP which was conducted on the same day and spent a sum of Rs. 7260/-. He remained admitted and was discharged on 11.11.2015 and incurred expenses of Rs. 10,928/- i.e. hospitalization charges and in this way, he spent Rs. 4,96,121/- on his treatment. OPs were periodically informed about the hospitalization of the complainant telephonically and otherwise. The complainant also requested OPs for cashless facility but OPs refused for cashless treatment. The First Appeal No. 770 of 2016. 4 complainant submitted all the bills/invoices to OPs. However, OPs refused to pay the payment vide letter dated 21.08.2014. Alleging deficiency in service on the part of OPs, the complaint was filed before the District Forum seeking directions against the OPs to pay the claim of Rs. 4,96,121/- alongwith interest @ 18% and also pay litigation expenses to the tune of Rs. 20,000/-
3. Upon notice, the complaint was contested by OPs who filed their written reply taking preliminary objections that the claim was repudiated vide letter dated 21.08.2014 strictly in accordance with terms and conditions of the policy; various investigations, hospital treatment record, doctor certificate of Fortis hospital confirmed that Vishavjot Singh was diagnosed as case of Acute Pancreatitis and the said disease was caused due to alcohol consumption but the hospitalization and medical expenses attributed to or based on or arising out of alcoholism are standard exclusion under the policy. The claim of the complainant is hit under clause 6 (r) of the terms and conditions of the policy; the complainant is estopped by his own act and conduct to file the instant complaint as he never submitted any claim for reimbursement of the medical expenses for any alleged treatment taken by him post denial of the requests dated 02.08.2014 & 06.10.2014. It was further stated that the denial of cashless facility did not in any way imply denial of treatment and did not prevent the patient from seeking necessary medical attention and hospitalization at his cost and then lodge the claim for reimbursement. The complainant was diagnosed as Acute Pancreatitis and certificate dated 02.08.2014 was issued by Dr. Amitabh Mohan Jerath, M.D. First Appeal No. 770 of 2016. 5 Consultant, Gastroenterology, Fortis Hospital, Amritsar confirmed that the complainant was diagnosed as a case of Acute Pancreatitis (CTSI 10/10) and was having history of Alcoholic intake for 9 years, clearly indicated that disease suffered by the complainant was due to alcohol consumption and the expenses incurred on the treatment of any disease occurred due to intake of Alcohol is not covered under the policy; the complainant had not approached the Forum with clean hands and he deliberately, dishonestly and with a malafide intention concealed the material facts with regard to health and habits and gave a wrong information at the time of filling the proposal form dated 17.03.2012 in order to induce the OPs to accept the risk on his life; the contract of insurance is contract of utmost good faith i.e. "Uberrima Fides" under which the prosper is bound to make full disclosure of all the material facts. Misrepresentation, Non- disclosure or Fraud, in any document leading to acceptance of the risk automatically vitiates the contract of insurance; the complainant being a prudent & educated person out of his free will opted for Regular Premium Bajaj Allianz "Family Care First" policy after fully understanding the benefits, exclusions, features and Terms and Conditions thereof; the proposal of the complainant was accepted by OPs believing the information furnished by the prosper in the said form to be corrected; the complainant has leveled allegations against the agent without disclosing the name of any such person, therefore, the complaint is bad for mis-joinder and non-joinder of necessary parties and that the Forum did not have the jurisdiction to entertain the present complaint. On merits, issuance of the policy alongwith First Appeal No. 770 of 2016. 6 terms and conditions to the complainant is admitted. The complainant was offered 15 days free look period to get the policy cancelled if its terms were not acceptable to him but no such option was exercised by the complainant. It was reiterated that the complainant violated the terms of the contract is the contract of insurance which is based upon the principle of Uberrima Fides, as he did not disclose the true facts about his health. He was regularly taking the alcohol and the disease for which the treatment was taken by the complainant is a result of taking alcohol, which is not covered under the clause 6 (r) of the terms and conditions of the policy, therefore, the claim was rightly repudiated. There is no deficiency in service on the part of OPs. The complaint is without merit and it be dismissed.
4. Parties lead evidence in support of their respective versions before the District Forum.
5. In support of his allegations, the complainant tendered in evidence his affidavit Ex. C-1, insurance policy Ex. C-2, copy of letters dated 03.08.2014 and 07.10.2014 Ex. C-3 and Ex. C-4, hospitalization record etc Ex. C-5 to Ex. C-150 and closed the evidence. On the other hand OPs tendered in evidence affidavit of Fakhrul Hasan as Ex. OP-1, copy of proposal form Ex. OP-2m copy of policy documents of 32 pages Ex. OP-3, copy of denial of cashless facility dated 03.08.2014 Ex. OP-4, copy of denial of cashless facility dated 07.10.2014 Ex. OP-5, copy of claim forms Ex. OP-6, copy of discharge summary Ex. OP-7, copy of certificate of Dr. Amitabh Mohan Jerath Ex. OP-8, copy of inpatient bill Ex. OP-9, First Appeal No. 770 of 2016. 7 copy of investigation report Ex. OP-10, copy of ECG, bills and other documents Ex. OP-11 (in 20 pages), copy of repudiation letter Ex. OP-12, copy of cashless form Ex. OP-13, copies of other documents Ex. OP-14 to Ex. OP-16 and closed the evidence.
6. After going through the averments made in the complaint, written statement filed by OPs, evidence and documents brought on the record, the District Forum allowed the complaint, as referred above.
7. Aggrieved with the order, the appellants/OPs has filed the present appeal.
8. We have heard counsel for the appellants/OPs Sh. Varun Chawla, Advocate. Notice was issued to the respondent/complainant but he did not appear and was proceeded ex-parte vide order dated 07.04.2017.
9. It was argued by the counsel for the appellants/OPs that the issuance of the policy is admitted. The terms and conditions of the policy have not been denied. Under exclusion clause 6 (r), it has been provided as under:-
6 (r) Treatment directly or indirectly arising from alcoholism or drug abuse and any illness or Physical injury which may be suffered after consumption of intoxication liquors or drugs.
It was further argued by the counsel for the appellants/OPs that on 02.08.2014, the certificate was issued by Fortis Escort Hospital, in which it has been stated by Dr. Amitabh Mohan Jerath that Acute Pancreatitis can be due to alcohol consumption. He had the history First Appeal No. 770 of 2016. 8 of using alcohol for the last 9 years. However, this certificate has not been exhibited on the record of the District Forum by OPs and another certificates issued by same doctor dated 05.07.2014 has been exhibited as Ex. OP-8 in which it was not mentioned that the complainant has history of using liquor for the last 9 years but it has been mentioned that the disease is not congenital in nature and it is not mentioned there that it was due to consumption of alcohol. In case it would have been so, then doctor would have been given clear cut findings. Acute Pancreatitis cannot be only due to consumption of liquor, there can be number of reasons for it. Some of the reasons are as under:-
1) Alcohol misuse Trypsin is a digestive enzyme produced in the pancreas in an inactive form; we know that alcohol misuse can cause trypsin to become active when it is still inside the pancreas, but scientists are not sure why.
Researchers believe that ehanol molecules affect the pancreas cells, triggering them to activate trypsin prematurely.
2) Gallstones Gallstones are small, pebble-like formations that develop in the gallbladder, often if there is too much cholesterol in the bile. Sometimes, the gallstones can be dislodged and make their way out of the gallbladder, blocking the ducts to the pancreas. The blockage undermines the normal workings of the pancreas, which sometimes activate trypsin prematurely, causing the pancreas to become irritated and inflamed.
3) Infections Examples of bacterial infections that can lead to acute pancreatitis include Salmonellosis, a type of food poisoning caused by the bacterium Salmonella, or Legionnaires' disease, an First Appeal No. 770 of 2016. 9 infection caused by the bacterium Logionella Pneumophila found in plumbing, shower heads, and water storage tanks. Examples of viral infections include mumps or hepatitis B. However, infections rarely cause acute pancreatitis.
4) Other possible cause of acute pancreatitis
a) Some autoimmune conditions- such as lupus, or Sjogren's syndrome.
b) Injury to pancreas
c) Idiopathic- more than 10 percent of all cases of acute pancreatitis are termed idiopathic pancreatitis. This means that no obvious cause was identified.
Therefore, in the absence of definite findings, it cannot be held that disease pancreatitis was only due to use of alcohol.
10. So far as Principle of "Uberrima Fides" is that the complainant obtained the policy after concealing the material facts. In the mediclaim policy, normally the insured is medically examined by the doctor of OPs before issuing the policy. Moreover, no record has been produced by OPs that the insured had taken any treatment for this disease before taking the policy. He suffered abdomen pain after about two years of taking the policy. In case, there is any problem in the body but the same was not in the knowledge of the insured, then it cannot be disclosed. Therefore, we do not see any reason that the insured had violated the principle of "Uberrima Fide". The District Forum has also observed that alcoholism can be one of the cause for Acute Pancreatitis, but it was not the sole cause. In the absence of any definite findings that the Pancreatitis was only due to the alcoholism, the exclusion clause will not apply. The District Forum has given the correct findings. We do not see any First Appeal No. 770 of 2016. 10 reason to differ with the findings of the District Forum. The claim is payable. Therefore, the findings recorded by the District Forum are correct and are affirmed.
11. Sequel to the above discussion, we do not see any merit in the appeal and the same is hereby dismissed.
12. Appellant No. 1 had deposited an amount of Rs. 25,000/- with this Commission on 19.10.2016. It deposited another amount of Rs. 25,000/- in compliance with the order dated 20.02.2017 vide receipt No. 79284 dated 17.03.2017. Both these amounts alongwith interest accrued thereon, if any, be remitted by the registry to the District Forum after the expiry of 90 days of sending the certified copy of the order to the parties. The complainant may approach the District Forum for the release of the above amounts and the District Forum may pass the appropriate order in this regard.
13. Order be communicated to the parties as per rules.
(Justice Paramjeet Singh Dhaliwal) President (Gurcharan Singh Saran) Judicial Member May 12, 2017 RK First Appeal No. 770 of 2016. 11