State Consumer Disputes Redressal Commission
A.Meenakumari ,Dindigul District . vs United India Insurance Co. Ltd., Rep By ... on 31 May, 2024
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Date of Complaint filed:09.02.2017
Date of Disposal:31.05.2024
IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: -THIRU.S. KARUPPIAH, PRESIDING JUDICIAL MEMBER
C.C.No.10/2017
FRIDAY, THE 31stDAY OF MAY 2024.
A. Meenakumari,
W/o.G.Alagappan,
At 4/153, East Street,
Sirugudi, Natham Taluk,
Dindigul District.
......Complainant.
-Vs-
1. United India Insurance Co. Ltd.,
By its General Manager,
Registered Office at 24, Whites Road,
Chennai-600 014.
2. United India Insurance Co. Ltd.,
T.P.Hub, Rep. by its Manager,
Having its Office at
IIIrd Floor, 7A West Veli Street,
Madurai.
3. J. India Air Travels(P) Ltd.,
No.33A, Munusamy Salai,
K.K.Nagar, Chennai-78.
.....Opposite party.
Counsel for Complainant : M/s.G. Ramapandian, Advocate.
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Counsel for Opposite parties 1 & 2 : M/s.S. Suresh, Advocate.
Counsel for Opposite party 3 : M/s.J. Xavier Charles, Advocate
This complaint came before me for final hearing on 24.05.2024 and upon perusing the
material records this Commission made the following:-
ORDER
THIRU.S.KARUPPIAH,PRESIDING JUDICIAL MEMBER.
(Dictated in open court)
1. The Facts:
The complainant is a house wife and her daughter Rajalakshmi residing with her husband at Dallas, Texas, USA. The complainant often visited and stayed with her daugther's house. On one such trip to US she booked a travel ticket with 3rd opposite party who is a travel agent. She also took Trawell Tag Cover Insurance Policy from the opposite parties 1 & 2 on 21.02.2015 along with her flight ticket. The complainant paid an insurance premium of Rs.9960/-. The period of insurance coverage was from 23.02.2015 to 21.08.2015. After reaching USA she experienced some illness and was hospitalized. She took treatment for bone infection and her toes were amputated at New Parkland Hospital at USA as an In-patient from 17.06.2015 to 25.06.2015 and was discharged on 26.06.2015. For the above medical expenses incurred, she made a claim to the insurance company through the hospital. After many remainders sent, she did not receive any reply from the insurance company.
However on reaching India she found that the opposite parties sent a repudiation letter on 15.06.2015 to her native address at Sirugudi. Subsequently she again applied for a claim on 01.09.2015 by enclosing sufficient documents as required by the 1 st opposite 3 party. But there is no response from the opposite parties 1 & 2. Hence alleging deficiency in service to reimburse the medical expenses to the tune of 91,000 USD, the complaint was filed.
2. The opposite parties 1 & 2 insurance company in their written version admitted that they offered a insurance policy but the premium amount was only Rs.3023/-. As per the policy terms and conditions claim for any pre-existing disease and its complications were not included, whereas she raised a claim for medical expenses made towards pre-existing ailments and complications. So, the claim was rightly repudiated and the subsequent claim also withregard to the same issue, they did not sent any reply. Hence requested this commission to dismiss the complaint.
3. The 3rd opposite party filed a separate written version stating that he did not commit any deficiency in service.
4. Both sides led evidence and marked documents as Ex.A1 to A9, Ex.B1 to B8.
5. The learned counsel for the complainant would submit that admittedly the complainant took Trawell Tag cover insurance policy with opposite parties 1 & 2 while she bought a travel ticket from the 3rd opposite party. The complainant was admitted in the hospital as in-patient from 17.06.2015 to 25.06.2015 for her bone infection and her toes were amputated. To prove the same discharge summary is marked as Ex.A5. Further she produced copies of bill as document No.6. The learned counsel further submitted that the claim was made through the hospital, while the complainant was at USA. The complainant did not receive any reply 4 from the insurance company while she was at the hospital in USA. She came to understand after returning to India that the opposite parties had sent a repudiation letter on 15.06.2015 and the repudiation letter is marked as Ex.A7.
6. It is the contention of the learned counsel that the repudiation was sent without any application of mind while the complainant was in USA the insurance company sent the letter to her native address. Further it is his contention that the purpose of taking insurance policy as itself got violated if the opposite party raise too technical objections. The learned counsel admitted the complainant was suffered from Diabetic Mellitus and her toe was amputated initially in the year 2012 itself and not related any of her ailment and treatment at America Moreover, the exclusionary clause itself is not maintainable. It was not at all explained to the complainant and the letters font were too small to read and not understandable to the complainant. The learned counsel relied upon some Judgment of The Supreme Court, The Hon'ble National Commission and this commission and argued, repudiation on the basis of any pre-existing disease should be such a disease, not only pre-existing disease at the time of taking the policy. But also should have existed in the near proximity. But in this case the complainant took treatment for toe amputation in the year 2012 as such there is no proximity to the above disease. The learned counsel concluded that if any such condition was disclosed earlier, the complainant would have avoided insurance claim. So, he requested to allow the complaint in total.
7. The learned counsel appeared for the insurance company would submit that the contract of insurance is like any other contract and to be governed only 5 by its terms. In this case the complainant took special type of insurance contract along with purchase of air ticket and the contract is not like any other contract of insurance. The terms and conditions were clearly supplied to the complainant and the complainant herself marked those documents and hence the complainant cannot now say she did not know the terms and conditions. Furthermore, it is his contention that a claim was made from the hospital only on 07.05.2015, but the repudiation letter was sent to the complainant native address. He also relied upon Ex.B6 in which the complainant herself expressed doubts about the insurance coverage and requested this commission to dismiss the complaint. However the learned counsel admitted that after she returned to India, the complainant subsequently made a claim for 3002 USD and they did not sent any reply, since the issue was already covered by the earlier repudiation.
8. Now the point for consideration is?
1. Whether the opposite parties 1 & 2 have committed any deficiency in service in repudiating the claim?
9. Discussion on the Point:
In this case admittedly the complainant bought an Air ticket from the 3 rd opposite party which includes insurance coverage. It is the case of the complainant that she paid Rs.9,960/- towards insurance premium but the opposite parties marking the insurance policy as Ex.B5 in which the amount has been shown as Rs.3023/- only. Whatever it may be it is an admitted fact that the insurance coverage was given from 23.02.2015 to 21.08.2015 which includes indemnifying manifold contingencies such as medical expenses, evacuation & 6 Repatriation, Personal Accident Death, Delay of Baggage, Personal Liability, AD & D common carrier, Life Threatening situation etc. Under the coverage of medical expenses, the sum assured was only 50,000 USD only. The insurance policy and its terms and conditions were marked by the complainant as Ex.A3 which is issued by the 3rd opposite party. In Ex.A3,(page 5) the insurance company requested the complainant to look forward to the terms and conditions by printing (Please read it carefully) and in page 7 it was clearly revealed about thea. Nature of coverage, b. Pre-existing exclusions, c. Pre- existing condition.
10. Moreover in the insurance policy itself (page 6) it was notified under the heading " Important"The coverage provided under this policy is subject to the Terms and conditions. Any pre-existing medical condition/ailments declared or undeclared will be excluded from the policy" So, this policy excluded any pre-existing disease and its complications from its purview either declared or un-declared. This case is slightly different from other cases referred by the learned counsel for the complainant. In those cases the complainant failed to disclose her pre-existing disease such as Diabetic mellitus. When claims were repudiated by the insurance company by stating that, in the proposal form the complainant failed to disclose pre existing disease and it affected the basic principle of contract of 'Uberima Fideii". This commission and National Commission on such occasion held failure to disclose the pre-existing diabetic mellitus which now became the part of life style and so there is no malafide in not disclosing the same and the repudiation became invalid. This commission emphasized that it is not the case of the insurance company 7 that the complainant failed to disclose any pre-existing. The insurance company did not repudiate because there was malafide on the part of the complainant in not disclosing her pre-existing disease. However in this case any treatment relating to the pre-existing disease or its complications were excluded from the purview of the insurance contract. At this juncture it is worthwhile to refer the recent Judgment of THE SUPREME COURT OF INDIA in United India Insurance Co. Ltd... Versus M/s Hyundai Engineering & Construction Co. Ltd. & Ors , wherein it was held Insurance is a contract of indemnification, being a contract for a specific purpose, which is to cover defined losses. The courts have to read the insurance contract strictly. Essentially, the insurer cannot be asked to cover a loss that is not mentioned. Exclusion clauses in insurance contracts are interpreted strictly and against the insurer as they have the effect of completely exempting the insurer of its liabilities. From the above , the role of the commission has been clearly defined and this commission is required to implement only the terms of the contract to its true meaning.
11. The learned counsel for the complainant would submit that the terms were not known to the complainant and it was not explained to the complainant and the fonts were very small in nature. Those points were not considered by this commission as a valid one. Because on more than one occasion the complainant was asked to read the terms and conditions. Further the ticket was booked through the ticket agent 3rd opposite party and the complainant daughter alone booked the same and she was very well aware of all those facts. The complainant 8 herself signed Ex.B5 insurance policy in English. When the complainant was very well aware that she is entitled for reimbursement of her medical expenses which was also printed in small font then she cannot allege that she did not know the exclusionary clause. The complainant cannot play hot and cold. So the above argument is also rejected by this commission.
12. Now the only point to be considered is, whether the treatment was proximal to any complications arising out of pre-existing disease or not? If not how much she is entitled towards her medical expenses. For which the complainant relied upon Ex.A5 and A6 to show the particulars of the treatment undertook by the complainant. The discharge summary was marked as Ex.A6, At page 49 the total bill cost has been shown as $88,494.18 USD and in page 51 some amount have been shown which included the medical expenses incurred from 01.07.2015 to 15.07.2015, 22.07.2015, 29.07.2015, 06.08.2015. The complainant did not explain to this commission about those payments. The complainant again produced a statement of expenses at page no.53 for 3002 USD and in page no.67 some expenses have been shown which were related to the date,even before her admission to the hospital.
13. The same statement of expenses reflected, in the respondent side document which were marked as Ex.B7, in Ex.B7, a Fax message received by the insurance company on 06.05.2015 requesting for "urgent authorization request for ASC Foot Wound Clinic F/U visit". In Ex.B7 it has been mentioned that last update was on 15.04.2015 which means the complainant consulted the doctor even prior to her admission from 17.06.2015 to 22.06.2015. 9 In the above page progress notes revealed that " HPI:Pt is a 53 yr old female seen inpatient and referred for f/u to clinic. For a right foot ulcer. Pt refused any surgery inpatient due to the 'cost' per daughter. However, she has insurance here. Daughter states the 'cost' was to high. Daughter states she does not understand how her mother's insurance works. Per discussion the patient had foot surgery with amputation of the 3rd ray 2012 in India. She did not f/u due to 'cost'. She is scheduled to return to India in August 2013. Pain 0/10. Has completed clindamycin. In the next page dated 15.04.2015 examination revealed that " A deformity of the second metatarsal phalangeal joint may be related to prior trauma, degenerative changes or infectious/inflammatory process. Moderate right foot swelling. No obvious active bone destruction is identified to suggest osteomyelitis". So only on the basis the insurance company presumed that the treatment was for pre existing ailments and its related complications and sent repudiation letter Ex.A7 dated 15.06.2015.
14. On perusing the medical reports which were relied by bothsides. The complainant even though suffered ailment in her right toe and it is related to her earlier ailment of Diabetic mellitus and ray amputation in the year 2012, it did not have any close proximity to her earlier problems. This commission and apex court and National Commission already found Diabetic is not a disease and it has become a part of life. The complainant during her stay at USA suffered infection and inflammation she went to the hospital after two months. It clearly proves she did not go to USA just for taking treatment in foreign hospital. After all the exclusionary clause was provided only to prevent such option to insured to 10 get medical treatment at foreign countries. In this case no such motive can be attributed. In this case the complainant is bonafide and she went to USA only to stay with her daughter. Moreover she was treated earlier for her ailments only at India. In Texco Marketing P. Ltd. v. TATA AIG General Insurance Company Ltd., it is again reiterated that While dealing with an exclusion clause, this Court has held that the burden of proving the applicability of an exclusionary clause lies on the insurer. At the same time, it was stated that such a clause cannot be interpreted so that it conflicts with the main intention of the insurance. It is, therefore, the duty of the insurer to plead and lead cogent evidence to establish the application of such a clause5. The evidence must unequivocally establish that the event sought to be excluded is specifically covered by the exclusionary clause.
So, it is the duty of the insurance company to lead cogent evidence to establish the claim was excluded. But the insurance company except sending repudiation on the basis of Fax message did not file any other proof to show the treatment at USA had a close proximity to her earlier ailments. This commission tries to emphasize that even though the complainant suffered from Diabetic Mellitus and her toe was amputated the treatment was for fresh complications due to infection at USA. Moreover if there's any ambiguity arose in interpreting a term or situation it should be interpreted so to favour only the insured. Apart from that a clause cannot be interpreted so that it conflicts with the main intention of the insurance. Here the intention of insurance is to cover unexpected medical emergencies expenses and complainant's case is one such case. Hence this commission found 11 the treatment given to the complainant is nothing any close proximity with her earlier amputation or diabetic.
15. Though Fax message from the hospital was repudiated by the opposite parties, the complainant made another claim on 01.09.2015 which was not at all replied by the opposite parties. The same claim was marked by the opposite party as Ex.B8. In Ex.B8 claim form a medical bill was produced by the complainant which was also a part of Ex.A6. This bill was not at all denied or disputed by the opposite parties. The opposite party in the written version simply stated, they did not repudiate this claim as it is related to earlier repudiation. As already discussed the Fax message sent from the hospital alone repudiated by the insurance company. Similarly the bills initially produced by complainant included expenses to her earlier visits and for the period after discharged from the hospital. Actually the complainant in her pleading claimed reimbursement only for the period from 17.06.2015 to 22.06.2015. This commission already found earlier bills were not submitted by the complainant to the opposite parties. But it was a request for authorization and a Fax message from the hospital. So, the above other bills were not supported by any claim of the complainant which means the expenses spent for other period was not claimed by her and hence not considered by this commission. The complainant however relinquished her earlier claim and submitted a fresh claim form on her own and she claimed only 3002 USD. This claim alone made by her personally to the opposite parties. To be more specific the complainant rightly claim only 3002 USD as a final claim of her medical expenses and this was made after she returned to India. This commission also perused Ex.A9 advocate notice which was incomplete in nature. The complainant 12 in his written argument as well as in the pleadings clearly mentioned that he made a claim on 01.09.2015, the receipt of the above claim is admitted by the insurance company and marked as Ex.B8. Hence the complainant entitled only to the above claim which was a restricted claim by her and the earlier bills were related to medical expenses incurred before admitting in the hospital and after admitting in the hospital. They were not supported by claim made by the complainant.
16. This commission already found the treatment given to the complainant is not having any close proximity with her earlier amputation or diabetic. On the otherhand she had a infection on her toes because of infection and underwent a treatment. Moreover as already referred it is a life saving effort made by the doctor, and this will certainly cover the contract terms and conditions. So, opposite parties insurance company is liable to pay 3002 USD which was so far not repudiated. The in action of the opposite parties also amounted to deficiency in service.
17. The counsel for the opposite party also raised jurisdiction question. In the written version it has been stated the State Commission has no Territorial jurisdiction to entertain the above complaint. However, the learned counsel fairly withdraw the above plea because the District Commission owned jurisdiction in the entire state. If any authority is needed the judgement of Hon'ble NCDRC The manager Air India Ltd vs Moideen Kutty is referred. Hence the objection is rejected. Sequal to the above discussions, the complaint is partly allowed. Moreover the policy covered only upto 49,900 USD. The claim of the complainant 13 to the tune of 90,000 USD is excessive in nature and not entertainable. The complainant in her complaint fixed the value of US dollar as Rs.66.(rounded). So the complainant is entitled only 3002 * 66 =Rs.1,98,132/- and this commission found the above repudiation in action where not justifiable and hence the complainant suffered mental illness which should be compensated for which Rs.1,00,000 was awarded by this commission.
18. In the result,
1. The complaint is partly allowed.
2. The opposite parties 1 & 2 are jointly and severally directed to pay a sum of 3002 USD x 66 = Rs.1,98,132/- rounded off to Rs.2,00,000/-(Rupees Two Lakhs Only) towards insured amount with 9% interest from the date of complaint till its realization to the complainant.
3. The opposite parties 1 & 2 are further directed to pay a sum of Rs.1,00,000/- (Rupees One Lakh only) towards deficiency in service and compensation for mental agony.
4. The above compensation amount should be paid within a month from the date of receipt of order failing which it carries 9% interest per annum.
5. Further directed to pay Rs.10,000/- towards costs to the complainant.
6. The complaint against the 3rd opposite party is dismissed. Dictated and pronounced in the open court to the Steno-typist transcribed and typed by him corrected by me on this the 31stday of May 2024.
-Sd/-xxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
14ANNEXURE List of documents marked on the side of the Complainant Ex.A1 --- Passport of the complainant.
Ex.A2 --- Visa of the complainant. Ex.A3 --- Policy confirmation letter issued by the 1st opposite party. Ex.A4 14.02.2015 Flight tickets of the complainant.
Ex.A5 26.06.2015 Discharge summary given by Parkland Hospital. Ex.A6 10.10.2015 Medical billis given by Parkland Hospital.
19.10.2015 Ex.A7 15.06.2015 Letter sent by 1st opposite party to the complainant rejecting the claim.
Ex.A8 01.09.2015 Second claim bill made by the complainant. Ex.A9 04.05.2016 Lawyer notice sent by the complainantto the 1st opposite party.
List of documents marked on the side of the Opposite
parties
Ex.B1 --- Policy document.
Ex.B2 21.02.2005 Copy of communication with enclosuresin policy of terms and condition sent on 21.02.2015 to complainant's contact.
Ex.B3 08.12.2015 Note of thanks by the complainant.
Ex.B4 02.03.2016 Communicated between the complainant and cover more Assists Pvt. Ltd., Ex.B5 21.02.2015 Confirmation of availability of insurance. Ex.B6 05.07.2015 Request for authorization for wound care supplies comprising by Third Party administer.
Ex.B7 05.05.2015 The Authorization request for follow up visit to the ASC foot would clinic comprising by Third Part Administer.
Ex.B8 --- Claim form for overseas medical claim.
-Sd/-xxx
S.KARUPPIAH
PRESIDING JUDICIAL MEMBER.
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