National Consumer Disputes Redressal
Bajaj Allianz Insurance Co. Ltd. vs Dr. Ajit Kumar Kulshrestha & Anr. on 8 June, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 246 OF 2012 (Against the Order dated 14/12/2011 in Complaint No. 68/2008 of the State Commission Uttar Pradesh) 1. BAJAJ ALLIANZ INSURANCE CO. LTD. 1 DLF, Industrial Plot, IInd Floor, Near Metro Station, Moti Nagar, DELHI-110015 ...........Appellant(s) Versus 1. DR. AJIT KUMAR KULSHRESTHA & ANR. C/o Kususm Hospital, Katra Road, Karanpur, Paratap Garh-23001 U.P. 2. MAKE MY TRIP (INDIA) PVT. LTD. HAVING ITS REGISTERED OFFICE AT UG-7, UPPER GROUND FLOOR, TDI MALL, SHIVAJI PLACE COMPLEX, RAJOURI GARDEN, NEW DELHI-110027 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER
For the Appellant : For the Appellant : Ms. Suman Bagga, Advocate For the Respondent : For the Respondent No.1 : In Person
With Mr. Vineet Sinha, Advocate
For the Respondent No.2 : Mr. Anil Airi, Sr. Advocate
Assisted by Mr. Rishab Raj Jain, Advocate
Dated : 08 Jun 2018 ORDER
1. By this order, I propose to dispose of the above noted two appeals preferred by Make My Trip ( India) Pvt. Ltd. ( OP No.1) and M/s Bajaj Alliance Insurance Co. Ltd. ( OP No.2) arising out of the order of the State Commission Uttar Pradesh in CC No. 68 of 2008.
2. Briefly put, the facts relevant for the disposal of the appeals are that complainant booked a tour with OP No.1 for the scheme known as 'Glimpse of Europe'. The package included air fare, boarding, lodging, taxes, visa charges and overseas medical insurance. The complainant paid Rs.1,71,375/- as total consideration for said package tour. The complainant commenced tour by boarding from Delhi to Brussels in the morning of 22.05.2008. The tour arrived at Belgium Airport on the same day at 9.00 a.m. From Belgium, the tour went to Germany, Switzerland and Paris. While at Paris, in the night intervening 28th & 29th May 2008, the complainant suffered severe stomach ache and contacted Tour Director on telephone and made a request for immediate medical assistance. It is the case of the complainant that tour director did not provide any assistance. The complainant, however, took initiative and got himself admitted at Center Hospital, Neuilly. At the hospital, abdominal ultrasound was done, intravenous drip was started and other medical assistance was provided. It is alleged that Tour Director fled from the hospital leaving the complainant in lurch. The complainant with great difficulty managed to contact his family members on 30.05.2008 and arranged for the payment of medical bills. The Tour Director Sh. Kashyap Mehta contacted the complainant in the evening of 04.06.2008 but left with the false assurance to help. The complainant was informed by OP No.1 (Make My Trip (India) Pvt. Ltd.) to contact OP No.2 Insurance Company for reimbursement of his hospital bills but no relief came from either of the two. It is alleged that complainant incurred huge expenditure of telephone bills for contacting his family members time and again for seeking help. The Tour Director did not even arrange for return journey of the complainant. Consequently, the complainant had to make his own arrangement for the return journey. On his return to India, he received a repudiation letter from OP No.2 Insurance Company informing repudiation of his insurance claim on the ground of non-disclosure of material information. According to the complainant, he did not fill any application form for the travel medical insurance taken by OP No.1 from OP No.2. Hence, there is no question of concealment of fact or non-disclosure of material information by the complainant. Aggrieved by the aforesaid acts of the opposite parties, the complainant approached the State Commission for redressal of his grievance seeking following reliefs:
"i) The opposite parties jointly and severally to pay a sum of Rs.13,56,664.80 being hospitalization bills paid by the complainant to the hospital authorities, along with interest @ 18% per annum from 9.6.2008 till date of its payment.
ii) The opposite party No.1 be directed to refund a sum of Rs.1,71,375/- + Rs.10,000/- total Rs.1,81,375/- being paid of tour charges being could not be utilized, Rs.1,24,862/- incurred on phone charges, Rs.2,42,376/- incurred on return air ticket from Paris to India and Rs.67,000/- incurred on miscellaneous expenses of travel from Delhi to Pratapgarh, Hotel charges along with interest @ 18% per annum from 10.6.2008 till its payment.
iii) The opposite parties be further directed to pay a sum of Rs.50,00,000/- jointly or severally as the compensation for suffering of mental agony, physical tortures and other suffering along with pendent-lite interest @ 18% per annum. The aforesaid sum includes Rs.25,00,000/- for suffering of mental agony and Rs.25,00,000/- for suffering of physical torture and other sufferings faced.
iv) The cost of Rs.2,00,000/- which includes litigation charges including lawyer's fee be also awarded against the opposite parties and may pass such further relief, as deem fit and proper in the circumstances of the case."
3. OP No.1 in its written statement has admitted that respondent / complainant had booked the Europe Tour 'Glimpses of Europe' on payment of consideration. It is admitted that complainant contacted the Tour Director Mr. Kashyap Mehta with the complaint of stomach ache and requested for help. Opposite party No.1 has denied the allegations made in the complaint. It is alleged that the Tour Director on being contacted took immediate steps to hospitalize the complainant and he also intimated the family members and friends of the complainant as also the representative of Indian Embassy in Paris. Tour Director also informed the complainant's family about his condition and provided all the details and contact numbers of the hospital although the complainant requested the Tour Director not to inform his family in India. It is also alleged by OP No.1 that it forwarded the complainant's details to OP No.2 insurance company requesting for settlement of hospital bills in terms of the insurance policy. It was thus pleaded that OP No.1 has not committed any deficiency in service.
4. According to OP No.2, insurance claim of the complainant was rightly repudiated in view of terms and condition no. 2.4 and 2.4.12 on the ground of concealment of material fact i.e. prior to obtaining the insurance cover, the complainant was suffering from Acute Pancreatitis Triglyceride with diabetes no insulin. OP No.2 alleged that complainant is a qualified doctor. He was very well aware of his earlier ailment and he deliberately concealed the said fact.
5. The State Commission on consideration of the pleadings and evidence adduced by the parties allowed the complaint and ordered thus:
"Keeping in view the mental agony which he alone might have experienced, lying in a hospital of a foreign country as a helpless creature, we award Rs.25,00,000/- as compensation for his physical sufferings as well as mental agony. The opposite party No.1 shall be liable to pay this amount. This payment will cover the complainant's miscellaneous expenses he might have incurred in making payment of the miscellaneous bills during return journey.
The total of the above award will be as follows:
Hospitalization bill Rs.13,56,664.80 Return journey ticket Rs.2,42,376.00 Phone charges Rs.1,24,862.00 Amt. realized as tour charges Rs.1,81,375.00 Award for mental agony and Physical sufferings Rs.25,00,000.00 ----------------------------- Rs.44,05,277.80 -----------------------------
Whereas the liability of opposite parties shall be joint as well as several in so far as the payment of Rs.13,56,664.80 is concerned, the opposite party No.1 shall pay the balance amount.
In the result the complaint is allowed in terms of the above with Rs.20,000/- as litigation charges to be jointly paid by the opposite parties."
6. Learned Shri Anil Airi, Senior Advocate appearing on behalf of the appellant - tour Director Make My Trip (India) Pvt. Ltd. has contended that impugned order of the State Commission is against the facts and based upon the incorrect appreciation of the evidence. It is contended that State Commission has failed to appreciate that Tour Director provided whatever assistance possible to the complainant for getting proper treatment. Therefore, it cannot be said that appellant / opposite party was deficient in service. Expanding on the argument, counsel for the appellant (tour operator) has contended that State Commission has failed to appreciate that Tour Director did inform about medical condition of the complainant to his family members as well as the Indian Embassy as also the insurance company. It is argued that Tour Director was responsible to the entire group and he could not have terminated the tour just because the complainant had fallen sick. Therefore, tour operator proceeding further alongwith remaining group cannot be termed as deficient in service towards the complainant.
7. As regards the insurance claim, counsel for the appellant (Tour operator) has contended that he was only intermediary between the complainant and the insurance company for purchase of insurance policy and it is the liability of the insurance company to settle the claim. Thus, the State Commission has committed a grave error in holding the opposite party No.1 jointly and severally liable for the insurance claim.
8. Counsel for the respondent/complainant on the contrary has argued in support of the impugned order.
9. I have heard learned counsel for the parties and perused the record.
10. On perusal of the impugned judgment it transpires that the State Commission has held the appellant Tour Operator Make My Trip (India) Pvt. Ltd. (for short, "Tour Operator") guilty of deficiency in service on the premise that the Tour Director did not fulfill his obligation to take care of the complainant i.e. to immediately take him for medical treatment; take care of the complainant during his hospitalization; and also to arrange for his return journey.
11. Learned counsel for the appellant Tour Operator has contended that the order of the State Commission on the above-said counts is not sustainable as it is based upon incorrect appreciation of facts. It is submitted that the State Commission has failed to appreciate the allegations in complaint, particularly in para 10 & 11, which are reproduced as under: -
"10. After coming back to the hotel, at midnight, the complainant had severe pain in the stomach which could not be relieved by some oral medicals provided to him at hotel and pain was unbearable, then the Tour Director was contacted on phone and was requested to make immediate arrangement for medical assistance to some hospital as the pain was growing and asked to arrange some ambulance. But no heed was paid properly, rather a taxi was arranged on which the complainant had to face more difficulty and painful experience. It is further relevant to state that the Tour Director could not get the complainant checked in nearby some hospitals for quite some time, as the hospitals one by one, were refusing to take the complainant, which shows mismanagement on the part of the tour operator i.e. the opposite party No.1 and its Tour Director, which clearly reflected that in case of such emergency situation which require medical assistance and hospitalization of a person on tour, had no arrangements or any association with the hospital of the cities of the itinerary of the tour, which makes rendering of deficient services on the part of them.
"11. Ultimately, the complainant due to refusal of 3-4 hospitals had to move on from the place to another place on a taxi in the condition of that excruciating pain started crying and shouting due to acute pain, when ultimately was admitted at Center Hospital at Neuilly for immediate checkup at around 4.30 am early in the morning of 28.5.2008/29.5.2008. There urgent abdominal ultrasound was conducted, intra venus slued were started and other medical assistance was given and drugs were administered and after sometime, the complainant got slight relief and could sleep around 10.00 am in the morning of 29.5.2008."
12. On reading of the above, it is evident that allegations in para 10 & 11 of the complaint are contradictory. On careful reading of the aforesaid allegations, I find clear admission on the part of the complainant that on being contacted, the Tour Director took him to nearby hospitals but when the said hospitals refused to admit the complainant for treatment, the Tour Director took the complainant to the Centre Hospital at Neuilly in a taxi where he was admitted. Thus, it is clear that Tour Director attended to the complainant and made all efforts to provide him proper treatment for his ailment. If the nearby hospitals refused to take the complainant as a patient, it cannot be taken as a fault on the part of the Tour Director amounting to deficiency in service. The State Commission has failed to take notice of the aforesaid allegations. As such, the impugned order on the said count cannot be sustained.
13. The next ground on which the State Commission has held opposite party Tour Operator deficient in service is that the Tour Director after admitting the complainant in the hospital went away and subsequently the Tour Director proceeded to further part of the tour alongwith the remaining group leaving the complainant unattended in the hospital.
14. The State Commission has committed a grave error in failing to appreciate that the appellant Tour Operator had organized a group tour to Europe and he was responsible for rendering satisfactory service to all the members of the tour. Merely because the complainant got sick the tour operator was not supposed to abort tour at Paris. Had he done so, he would have been guilty for deficiency in service to remaining members of tour for not taking them for the remaining part of the tour.
15. In order to appreciate the dispute in the correct perspective it would be useful to have a look on some of the relevant terms and conditions of the tour contract between the parties, which are reproduced as under: -
"In case where a client individually or along with his family is compelled to discontinue the tour due to any reason whatsoever including illness, death or loss of passport or any travel documents, no claim shall be entertained for refund or unutilized services. Even if a client is unable to reach the place of commencement of the tour due to any reason whatsoever including the loss of baggage or loss of travel documents, his booking shall be treated as "no show" on the tour and 100% cancellation charges will be levied.
MMT shall in no circumstances whatsoever be liable to the client or any person travelling with him for: -
Any death, personal injury, sickness, accident, loss, delay, discomfort, increased expenses, consequential loss and/or damage or any kind of theft howsoever caused."
16. On reading of the above, it is clear that where a member of the tour is compelled to discontinue the tour due to the reasons including illness, death or loss of passport etc., no claim shall be entertained for refund of the unutilized services. Admittedly, in the instant case the complainant had to discontinue the further part of the tour because of his ailment. Therefore, in view of the above-noted condition he cannot claim refund of unutilized services. State Commission has also ignored this aspect of the matter. The order of the State Commission on this count awarding compensation for return journey ticket, phone charges, amount realized as tour charges and compensation for mental agony & suffering, cannot be sustained.
17. As regards the hospitalization bill of Rs.13,56,664.80 for which the appellant tour operator has been held jointly and severally liable alongwith opposite party No.1, learned counsel for the appellant tour operator has contended that foisting of said liability on the appellant tour operator is not justified because the appellant is not an insurer and was only an intermediatory between the complainant and the insurance company. If at all aforesaid amount is payable against the medical insurance issued by opposite party No.2 insurance company, it is the sole liability of the insurance company. I fully agree with the aforesaid contention of learned counsel for the appellant tour operator, namely, Make My Trip (India) Ltd. and accordingly set aside the order of the State Commission holding the appellant tour operator jointly and severally liable for the insurance claim.
18. Learned counsel for the appellant insurance company has contended that the State Commission has committed a grave error in failing to appreciate that the history prepared by the foreign hospital clearly indicates that the respondent/complainant was suffering from "Diabetes Type-II" as also "Acute Pancreatitis" which cannot be contracted in a short period. Therefore, it is obvious that the respondent/complainant was suffering from aforesaid pre-existing ailment which fact was concealed. The State Commission also failed to appreciate that as per the exclusion clause of the insurance policy the pre-existing diseases were not covered under the insurance contract. In support of his contention learned counsel for the appellant insurance company has drawn my attention to the policy schedule and the treatment record of the complainant at Paris hospital. In order to succeed on the above count the appellant is required to show that the respondent/complainant at the time of purchase of policy was suffering from pre-existing disease. The translated copy of the treatment record prepared by the hospital at Paris records as under: -
"Histories:
Diabetes type II Acute Pancreatitis History of the disease:
Patient of Indian origin in vacancy in France suffering for 24 hours from abdominal pains intense peri-umbilical.
Clinical examination:
TA= 13/8 - FC=100/min Painful belly in the palpation but flexible.
Normal breath with FR= 18/min-SpO2: 98% in ambient air regular BDC without breath CV, no sign cardiac insufficiency.
Complementary (Additional) examinations:
Biology; Lipasemia 3975-triglyceridaemia: 31g/L- Glycemia: 3.48-Na+:124 -K+: 4.10-GB: 13 700-CRP: 5-TP: 100%-Calcemia: 52-SGOT: 136-SGPT: 1B2-creatinine: 8 ECG: Palpitation sinusal with FC: 100/min-Conduction and repolarization normal cardiac Echography:
Evolution in the service:
Type II diabetes decompensated on mode ketotic and rebalanced by the insulinotherapy = fast insulin in IV/relieved by insulated (12 UI in the morning and evening).
- Following one acute pancreatitis very severe on hypertriglyceridemia in 31g/L in the admission with an evolution TDM abdominal:
Scan abdomino-pelvic of 30/05/08: acute pancreatitis. Balthazar rank E without necrosis Absence of billary calcification found on this examination.
Scan abdomino-pelvic of 02/06/08: rise of the effusions and the infiltration of the fat died pancreatic, without visible necrosis at the level of the pancreas.
Scan abdomino pelvic of 09/06/08: stability of the infringement died- pancreatitis without visible necrosis at the level of the pancreas. However, taken by linear and internal contrast evoking a subdivision.
Decrease of the intra-peritoneum effusions in particular died person suffering from a liver complaint and of the gutter straight parieo-stomach pain.
- Evolution requiring a follow-up densitometric tomography in its return in India.
Inline attachment follows: Scan. Txt Very serious acute pancreatitis with infectious complication and multi visceral failure which can engage crucial prognostic Inline attachment follows: Scan (2). Txt Suite du CRH de Monsieur KULSHRESTHA
- Correction' des troubles metaboliques avec diminution des triglycerides a 2.8g/L et normalization de I'hypocalcemie."
19. As the insurance company is trying to take advantage of the exclusion clause, the onus of proving that the respondent / complainant was suffering from pre existing disease, for which he was treated, was squarely upon the insurance company. The insurance company has failed to produce any medical evidence to suggest that complainant was suffering from pre existing disease regarding which he was treated by the hospital at Paris. Even if, the complainant earlier had taken treatment for pancreatitis, obviously it was cured and, therefore, it cannot be said that the subsequent attack of pancreatitis after a considerable period was a pre existing disease. Therefore, I find no merit in the contention of learned counsel for the insurance company and the order of the State Commission holding the insurance company liable to pay the treatment expenses to the complainant is justified.
20. In view of the discussion above, appeal No. 56 of 2012 filed by Make My Trip ( India) Pvt. Ltd. is allowed and complaint is dismissed against the said appellant. The appeal preferred by OP No.2 being appeal No. 246 of 2012 is dismissed. The order of the State Commission is modified to the extent that appellant / insurance company, namely, Bajaj Allianz Insurance Co. Ltd. shall pay to the respondent / complainant a sum of Rs.13,56,664.80/-.
21. On 30.5.2012 the application filed by the appellant insurance company for stay of the execution of the order was allowed subject to the appellant depositing sum of Rs.13,56,664.80 with the State Commission within six weeks. It is not clear whether said amount was deposited or not. If the amount was deposited in terms of the order dated 30.5.2012 it may be released to the respondent/complainant with interest, if any, accrued. If the amount has not been deposited the appellant insurance company shall comply with the order within two months failing which the amount shall carry 8% interest from the date of this order.
......................J AJIT BHARIHOKE PRESIDING MEMBER