State Consumer Disputes Redressal Commission
Sunita Malhotra (Now Deceased)Through ... vs Icici Lombard General Insurance ... on 20 April, 2023
STATECONSUMERDISPUTESREDRESSALCOMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.320 of 2021
Date of institution : 13.09.2021
Date of Reserve : 14.03.2023
Date of decision : 20.04.2023
Sunita Malhotra (now deceased) wife of Vijay Kumar Malhotra,
through her Legal Heirs:-
1. Nikhil Malhohtra son of Vijay Kumar Malhotra, resident of 4/54,
Golding Drive, Glendernning-2761, NSW, Australia.
2. Nidhi Ghai (D/o Vijay Kumar Malhotra) wife of Sidharth Ghai,
resident of Kirpa Ram Raja Ram, Magestic Road, Moga, Punjab
(India)-142001.
3. Vijay Kumar Malhotra, husband of Late Smt.Sunita Malhotra,
resident of S-45, MIG Flats, Dashmesh Nagar, Ludhiana-141003.
.......Appellants/Complainants
Versus
1. ICICI Lombard General Insurance Company Limited, ICICI
Lombard House 414, Veer Savarkar Marg, near Sidhi Vinayak
Temple Parabhadevi, Mumbai-400025.
2. ICICI Lombard General Insurance Company Limited, SCO 501,
Sector 70, Mohali (Punjab).
3. ICICI Lombard General Insurance Company Limited, Mall, Road,
Kunal Towers, Civil Lines, Ludhiana.
4. Medanta The Medicity Hospital, Sector 38, Gurgaon, Haryana-
122001, India.
....Respondents/Opposite Parties
Appeal U/S 41 of the Consumer
Protection Act, 2019 against the
Order dated 05.08.2021 passed in CC
No.96 of 2015 by the District
Consumer Disputes Redressal
Commission, Ludhiana.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
F.A.No.320 of 2021 2
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present :-
For the appellants : Sh.Arjun Kundra, Advocate
For respondents No.1-3: Sh.Sandeep Suri, Advocate
For respondent No.4 : Ms.Meenakshi Dogra, Advocate
Simarjot Kaur, Member
The appellants/Complainants i.e. Sunita Malhotra now
deceased through LRs have filed the present appeal being aggrieved by the impugned Order dated 05.08.2021 passed by the District Consumer Disputes Redressal Commission, Ludhiana (in short 'the District Commission') whereby the complaint filed by the complainant was dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Brief facts of the case as made out by the complainant before the District Commission are that the complainant-Sunita Malhotra now deceased had obtained a Health Insurance Policy No.4129/21244975/00/001 from OP No.3 i.e. ICICI Lombard General Insurance Company Limited, for travelling to overseas in the year 2013. The complainant and her husband visited Sydney, Australia to meet her son, who was permanently settled there. After reaching Australia, the complainant had some respiratory/cough problem on 17.03.2014, as diagnosed by the general practitioner. It was revealed that she was having symptoms of heart disease. Thereafter, the complainant was rushed to Black Town Hospital and later on, she F.A.No.320 of 2021 3 was diagnosed with improper functioning of heart, kidney and fluid retention under lungs. The complainant while she was in India did not suffer any of these medical conditions. The complainant remained hospitalized for a period of 16 days in the said hospital in Australia and was discharged on 01.04.2014. A total bill of AUD 32,000 Australian Dollar equivalent to Rs.17 Lac in Indian currency was raised by the Black Town Hospital. The complainant being insured to OP No.3 before travelling to Australia, the entire bill was diverted to OP No.3 having its head office i.e. respondent No.1. The complainant lodged a cashless claim and also submitted all the required documents to OPs No.1&3 and an acceptance mail was also sent by them. They demanded the hospital records as mentioned in the complaint. The OPs No.1&3 even authorized their Australian counterparts 'DYNAMIC ASSISTANCE' by placing guarantee with the Black Town Hospital as per policy limit of 1 Lac American Dollars and it was assured that the settlement would be done upon receipt of final invoices from the hospital. OPs No.1&3 contacted regular doctor of the complainant on 18.03.2014 at Steelman Hospitals Private Limited, Basant Avenue, Dugri Road, Ludhiana, the doctor of the said hospital. A detailed filled up Form was handed over by OPs No.1&2 where it was clearly mentioned that the complainant was not suffering from any disease except that she was diabetic for the last 10 years and was suffering from hypertension for the last 2 years as Ex.C-9. It was also specifically mentioned that the complainant was not suffering from Chronic Kidney Disease (CKD). Further, it was mentioned in the complaint that after arrival of the complainant in India, she was again admitted F.A.No.320 of 2021 4 at Medanta The Medicity Hospital-OP No.4 on 20.04.2014 for a period of 3 days i.e. w.e.f. 24.04.2014 to 30.04.2014. On being discharged from Medanta Hospital, OP No.4 had wrongly mentioned that the complainant was having history of suffering from CKD for more than 2 years. Prior to obtaining the travel health insurance from OPs No.1&2, the complainant had also taken an insurance policy from National Insurance from 19.05.2006 onwards and since then not even a single claim was lodged with the said Insurance Company regarding the CKD or heart disease except that she had taken a claim of Rs.9344/- on account of some eye problem. The expenses incurred by the complainant regarding her hospitalization with OP No.4 from 20.04.2014 to 30.04.2014 were duly reimbursed by National Insurance Company through Park Medical Claim TPA Private Limited. However, OPs No.1-3 had repudiated the claim in respect of treatment availed at Australia on the ground that in the discharge record issued by OP No.4, it was wrongly mentioned by the concerned doctor that the complainant had a history of CKD. When the complainant brought this fact to the notice of OP No.4, the doctor of OP No.4 realized its mistake and issued a rectified certificate dated 25.07.2014 by mentioning that the complainant was suffering from CKD since March 2014 and not for the last two years, as mentioned in the hospital records which was shown to OPs No.1-3. The said certificate had clearly reflected that the complainant was a not a known case of CKD for last more than 2 years. Thereafter, she approached the office of Insurance Ombudsman Chandigarh and lodged a claim dated 25.09.2014. However, the Ombudsman neither allowed the claim of the complainant nor discussed the certificate F.A.No.320 of 2021 5 issued by OP4. The rejection of the claim was on false and frivolous grounds which clearly amounts to 'deficiency of service' and 'unfair trade practice' on their part of OPs No.1-3. Hence, the complaint was filed by the complainant.
4. Stating to be a case of 'deficiency in service' and unfair trade practice and harassment suffered, the complainant had sought the relief with the prayer to direct the OPs No.1-3 to pay an amount of AU$ 32000 equivalent to Rs.17 lac in Indian rupees as incurred on the treatment of the complainant at Australia. Further, directions be issued to pay compensation of Rs.1 Lac and Rs.20,000/- as litigation expenses.
5. Upon issuance of notice, OPs No.1 to 3 filed their joint written reply by raising certain preliminary objections that the complaint filed by the complainant was not maintainable. However, issuance of policy No.4129/21244975/00/001 to the complainant and her husband on 06.11.2013 to 04.05.2014 was not disputed. The policy was issued on the basis of information supplied by the insured with the declaration of pre existing diseases. It was also declared by the complainant that she was only suffering from hypertension and diabetes, but she did not disclose the past medical history of CKD in the proposal form. The claim of her hospitalization with the complaints of chronic cough, dyspnea and orthopnea was lodged by the complainants. She was diagnosed with acute pulmonary edema secondary to acute coronary syndrome and acute kidney injury on 17.03.2014 while she was on overseas trip. The complainant remained hospitalized for 15 days and her condition was managed F.A.No.320 of 2021 6 conservatively as per the records of Black Town Hospital. The complainant was again admitted on 06.04.2014 with the similar problems. As per medical records of OP No.4 i.e. Medanta Hospital dated 24.04.2014 the complainant was a known case of kidney disease for the last 2 years. After the receipt of the documents of medical treatment of the complainant, the claim was repudiated vide letter dated 16.07.2014, after thorough scrutiny of documents and after making thorough investigation. It was done on the ground that the medical record of Medanta Hospital Gurgaon had revealed that the complainant was a known case of CKD for the last two years, which was not disclosed at the time of purchasing the policy. After the rejection of the claim, the complainant approached Medical Superintendent of OP No.4 and obtained a clarification letter, wherein it was mentioned that the complainant was suffering from CKD since March 2014 and not for the last two years. Moreover, the Medical Superintendent has clearly mentioned in his statement that the clarification was prepared on the basis of the information of the complainant. It was not based on the assessment of any medical specialist or Nephrologist whereas in the medical records of OP No.4, the Nephrologist had already confirmed that the patient was a known case of CKD for the last two years. All other allegations mentioned in the complaint were denied. At the end it was prayed for dismissal of the complaint.
6. OP No.4 had filed its separate written reply stating therein that OP No.4 had been unnecessarily impleaded as party whereas no cause of action had arisen accrued against it. It was also mentioned F.A.No.320 of 2021 7 in the reply that complainant was having history of CKD for past two years. Denying all other allegations, it was prayed for dismissal of the complaint qua them.
7. By considering the averments made in the complaint as well as reply thereof, the complaint filed by the complainants was dismissed vide order dated 05.08.2021.The relevant part of the order is reproduced as under:-
"24. On the basis of all above discussion, this Commission is of the view that the complainant has failed to prove that the repudiation of the claim by OP1 to OP3 is patently illegal. Therefore, the complainant cannot be held entitled to the amount of 32,000 Australian Dollar equivalent to Rs.17 Lac in Indian currency in her treatment in Australia.
25. As a result of above discussion, the complaint fails and same is hereby dismissed. However, there shall be no order so as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room."
8. Being aggrieved by the impugned order dated 05.08.2021 passed by the District Commission, the appellants/complainants have filed the present appeal by raising a number of grounds.
9. Mr.Arjun Kundra, Advocate learned counsel for the appellant has submitted that complainant had also taken one insurance policy from National Insurance Company in the year 2006 as mentioned in Ex.C-4 and not even a single claim had been lodged with the said Insurance Company regarding chronic kidney disease or heart disease. Even after returning from Australia, she remained admitted in Medanta Hospital (OP No.4) and the National Insurance Company had cleared the bills dated 20.04.2014 and 30.04.2014 raised by respondent No.4 without any reservation which clearly shows that complainant was not suffering from any chronic kidney F.A.No.320 of 2021 8 disease in the past. Otherwise the National Insurance Company could have rejected the claim of the complainant. Learned counsel has also submitted that consulting doctor had also certified that complainant was examined and assessed by him in the month of October, 2013 and at that time she was not suffering from any cardiac or renal problem/disease. OPs No.1-3 had approached the consulting doctor during investigation of the claim and the questionnaire dated 18.03.2014 relating to previous medical history of the complainant was categorically answered by him and for that purpose he had referred document Ex.C-9. Learned counsel has further submitted that as per the discharge summary issued by the Australian Hospital, the complainant was diagnosed with Acute Renal Impairment along with other complications despite the fact that the complainant visited the Australian Hospital with respiratory distress problem. On inquiry by the doctor, she disclosed her medical history of hypertension and type II diabetes mellitus. Learned counsel has further submitted that District Commission had taken the inference that the complainant was suffering from acute renal impairment during her admission courses/issued.
10. Learned counsel has also submitted that it is crystal clear that the renal disease was possible due to underlying diabetic/HTN which was pre-existing at the time of taking the policy and the same was informed to the respondents No.1-3. This factum of the renal disease came to the knowledge of the complainant for the first time on 18.03.2014 when the discharge summary was issued by the Black Town Hospital, Australia. Learned counsel has further submitted that F.A.No.320 of 2021 9 District Commission has dismissed the complaint only by relying upon document i.e. Ex.R-9 i.e. questionnaire put to Dr.Shyam Bihari Bansal of OP No.4 despite the fact that the answers given by the doctor were indirect and it appeared that the doctor was not confident about the same.
11. At the end learned counsel for the appellants has submitted that complainant had no knowledge of any complications which had occurred in her body specifically related to renal impairment issue. The sole ground of rejection of the claim by respondents No.1-3 was the past medical history of CKD was not disclosed at the time of purchasing of the policy whereas the complainant was not having any knowledge during the treatment taken at the Black Town Hospital, Australia. He has prayed for acceptance of the appeal.
12. Mr.Sandeep Suri, Advocate learned counsel for respondents No.1-3 has submitted that on the similar lines as pleaded in the complaint and written statement. Learned counsel has also submitted that past medical history i.e. Chronic Kidney Disease (CKD) was not revealed at the time of purchasing of the policy by the complainant as such part III of the schedule of the standard terms and conditions of the Insurance Policy obtained under the head incontestability and duty of disclosure, thus the claim is not payable and is repudiated as 'no claim'. After rejection of the claim vide letter dated 16.07.2014 the complainant had approached the Medical Superintendent of respondent No.4 with his affidavit and sought a clarification letter which mentions that complainant was suffering from F.A.No.320 of 2021 10 CKD since March, 2014 and not for last 2 years without any medical reasons. The Medical Superintendent has clearly mentioned in his statement that "The said clarification is provided on the basis of affidavit of the complainant". Since the statement provided by the complainant issued by the Medical Superintendent was without any medical evidence or record and only on the basis of affidavit and not by any specialized doctor of kidney diseases, it was verified by respondents No.1-3 from the Nephrologist. The Nephrologist who had confirmed that the patient was known case of chronic kidney disease (CKD) for the last 2 years. Learned counsel has further submitted that no certificate was issued by the treating doctor and that certificate dated 25.07.2014 was based on the basis of affidavit only that too by the Medical Superintendent who had never treated the complainant. Ombudsman, Chandigarh vide its order dated 01.12.2014 had also dismissed the complaint of the complainant. Learned counsel has also submitted that as per the policy terms and conditions, the proposer was required to declare true facts and complete information at the time of proposal whereas the insured i.e. the complainant had suppressed certain material facts about pre-existing disease and the terms and conditions of the policy excluded coverages in case of non- disclosure of fact.
13. At the end learned counsel for the respondents No.1-3 has submitted that the complainant had again admitted in Medanta Hospital on 24.04.2014 to 30.04.2014, the nephrology discharge summary in respect of hospitalization in the column of Diagnosis & Co-morbidities where it was again mentioned acute CKD- F.A.No.320 of 2021 11 pneumonia/fluid overloaded-resolving, diabetes mellitus type 2- severe NPDR, hypertension-gd2-3 hypertensive retinopathy. In column of Medical History and Presenting Complaints, again the diagnosis of CKD (B/L creat-3mg%) was mentioned. It was also mentioned that the urgent dialysis was done on 24.04.2014, Coronary Artery Angiography (CAG) was postponed in view of worsening of kidney functions and ensuing dialysis dependency. Even in Australia, the complainant was found to have been suffering from acute renal impairment. Learned counsel has also submitted that claim has rightly been repudiated by the respondents No.1-3 on the ground that the complainant was suffering from pre-existing ailment and there was no coverage available for any pre-existing illness. The appeal filed by the appellants deserves to be dismissed. Learned counsel has relied upon the Judgment of Hon'ble Supreme Court in case titled as Branch Manager, Bajaj Allianz Life Insurance Company Ltd. and Ors. Vs. Dalbir Kaur, Civil Appeal No.337 of 2020 and Judgment of Hon'ble National Commission in case, New India Assurance Co. Ltd. Vs. Sh.Vishwanath Manglunia, Revision Petition No.164 of 2006 in support of his arguments.
14. Ms.Meenakshi Dogra, Advocate learned counsel for the respondent No.4 has submitted that appeal is bad for mis-joinder of parties as the respondent No.4 is not a necessary party in the present case and no cause of action had arisen against it. She has further submitted that respondent No.4 was limited to the extent that it was wrongly mentioned that the patient was suffering from Chronic Kidney Disease for the last 2 years. Learned counsel has also submitted that F.A.No.320 of 2021 12 in the initial assessment and the Treatment Form, it was filled up by the doctors or nurses on duty on the representations made by either by the patient or the attendants, which is a part of medical record being the past history of the patient. In fact, the patient was having a past history of CKD for the last two years and the same was recorded at various places in the medical records only on the basis of representations made by the husband of the patient during admissions period i.e. on 17.04.2014 and 24.04.2014. In the absence of provision of prior medical records, anything which was reflected in the past history was only on the basis of representations made by the patient and or the attendants. Alleged allegations made against the respondent No.4 being negligent in any manner are wrong and hence denied and the appellant is not entitled for any amount of compensation from respondent No.4.
15. We have heard the arguments raised by learned counsel for the parties and have also carefully perused the impugned order passed by the District Commission as well as the documents available on the file.
16. Facts relating to filing of complaint by the complainants before the District Commission, replies thereof and after hearing the arguments raised by both the parties and passing of impugned order dated 05.08.2021 passed by the District Commission, Ludhiana and thereafter filing of appeal before this Court by the appellants/complainants are not in dispute.
F.A.No.320 of 202113
17. It is not disputed that the complainant-Sunita Malhotra had expired during the pendency of the complaint and this appeal was filed through LRs of complainant-Sunita Malhotra (now deceased).
18. The issue for determination between both the parties is as to whether the appellants/complainants were entitled to get an amount AUD 32000 (equivalent to Rs.17 lac), incurred on the treatment of Mrs.Sunita Malhotra-complainant (now deceased).
19. To determine this controversy, we have carefully perused the relevant record of the case including the pleadings of the parties.
20. Admittedly the complainant (now deceased) had obtained a health insurance policy for travelling overseas issued by respondent No.3. Complainant and her husband had visited Australia and during their stay in Australia, the complainant (now deceased) had suffered some respiratory/cough problems on 17.03.2014. She had to rush to Black Town Hosptial, Sydney, Australia, where she remained admitted for 16 days and was discharged on 01.04.2014. The complainant incurred an amount of 32,000 AUD (Australian Dollar equivalent to Rs.17 lac) on her treatment. OPs rejected the claim of the complainant on the ground of pre-existing disease. Thereafter, the LRs of complainant filed consumer complaint before the District Commission which was dismissed vide order dated 05.08.2021. Thereafter, the appeal was filed through LRs of the complainant.
21. We have carefully perused the relevant record minutely and it has been observed that the discharge summary notes so recorded by the Black Town Hosptial, Sydney, Australia had referred F.A.No.320 of 2021 14 the health conditions as "acute renal impairment" under the caption of Final Diagnosis at point No.3(Ex.C-6), whereas on the other side OPs No.1-3 had time and again referred that complainant was suffering from Chronic Kidney Disease (CKD). To distinguish between Acute Renal Failure and Chronic Kidney Disease, it is important to know the exact nature/meaning of diseases. In Dorland's Illustrated Medical Dictionary the word "Acute" has been defined as 'having a short and relatively severe course' and on the other hand "Chronic" has been defined as 'persisting over a long period of time'. Meaning thereby that the acute diseases are sudden and unexpected. Therefore, the statement of complainant that she came to know about her disease for the first time only when she was admitted to Black Town Hospital, Sydney, Australia, appears to be plausible.
22. Nowhere in the medical record of the complainant Chronic Kidney Disease has been mentioned prior to 2014. She only came to know about her kidney ailment when she was admitted to Overseas Hospital i.e. Black Town Hospital. When the complainant undertook the policy in the year 2014 she was having no knowledge about the kidney ailment. She had declared in the declaration/Proposal Form to the insurance company that she was suffering from Hypertension and Type II Diabetes Mellitus only. Had the complainant be aware about her kidney disease or any other disease, she should have mentioned the same in her declaration/proposal form at the time of taking up the policy. F.A.No.320 of 2021 15
23. Moreover, it was the duty of the Insurance Company to get the insured physically examined/ get pre-insurance medical checkup conducted before the issuance of overseas health cover. Whereas the insurance cover was based only on the disclosure made by the complainant/appellant. The Insurance Company did not think that the medical and health condition of the appellant was such which did not warrant issuance of medical policy. The Insurance Company therefore, did not decline the proposal of the insured and insisted for issuance of valid overseas Health Cover.
24. Further, it is pertinent to mention that complainant had taken an insurance policy from National Insurance from 19.05.2006 onwards and since then not even a single claim had been lodged qua the said insurance policy regarding the CKD or heart disease except that she had taken a claim of Rs.9344/- on account of some eye problem and that claim was duly reimbursed by the National Insurance Company through Park Medical Claim TPA Private Limited.
25. As per the literature regarding Diabetes and Chronic Kidney Disease which has been annexed with the appeal as Annexure A-5. The relevant part is reproduced as under:-. There are five stages of kidney disease. They are shown in the table below. Your doctor determines your stage of kidney disease based on the presence of kidney damage and your glomerular filtration rate (GFR), which is a measure of your level of kidney function. Your treatment is based on your stage of kidney disease.
F.A.No.320 of 2021 16 STAGES OF KINDEY DISEASE Stage Description Glomerular Filtration Rate (GFR)* 1 Kidney damage (i.e. protein in the 90 or above urine) with normal GFR 2 Kidney damage with mild decrease in 60 to 89 GFR 3 Moderate decrease in GFR 30 to 59 4 Severe reduction in GFR 15 to 29 5 Kidney failure Less than 15
It can be deduced in the initial stages of kidney disease, it is difficult to find out for a layman regarding onset of this chronic disease. OPs have failed to prove this fact that she was suffering from Chronic Kidney Disease. When she filled up the proposal form/declaration form as there was nothing on record about her medical history pertaining to chronic kidney disease except the statement of Medical Superintendent of Medanta Hospital-OP No.4 Ex.C-8, which could not be taken into consideration as the said hospital had changed its stand as is reproduced as under:-
"That Mrs.Sunita Malhotra is suffering from Chronic Kidney Disease since March 2014 and not from last 2 years as mentioned in our Hospital Records."
Moreover no expert opinion of any specialized doctor was undertaken before issuance of the above said certificate. It is strange that reputed institution like Medanta Hospital was changing its statement as mentioned above with regard to the history of patient so quickly. Not too much can be read into the statement issued by Medical Superintendent of Medanta Hospital-OP No.4.
26. Hon'ble Surpeme Court has passed judgment in case titled as 'Manmohan Nanda Vs. United India Assurance Co. Ltd. F.A.No.320 of 2021 17 & Anr.', in Civil Appeal No.8386/2015 Decided on 06.12.2021. The relevant part of the order is reproduced as under:-
67. Further on the disclosures made by the appellant with regard to his existing disease, namely diabetes mellitus−II, the insurance company considered the same and issued the policy in question to the appellant. The respondent insurance company as a prudent insurer considered the details given by the appellant in the proposal form and issued the policy. The insurance company did not think that the medical and health condition of the appellant was such which did not warrant issuance of a mediclaim policy. The insurance company therefore did not decline the proposal of the assured as a prudent insurer.
68. Therefore, the respondents were not right in stating that as per the terms and conditions of the policy "all the complications arising out of pre−existing condition is not payable." As already noted, acute myocardial infraction can occur in a person who has no history of diabetes mellitus−II. One of the risk factors for the aforesaid cardiac episode is diabetes mellitus−II. The fact that the appellant had diabetes mellitus−II was made known to the insurance company.
Therefore, it is observed that any complication which would arise from diabetes mellitus−II was also within the consideration of the insurer. Despite the aforesaid facts regarding the medical record of the insured, the insurance company decided to issue the policy to the appellant. The aforesaid clause has to be read against the respondent insurer by applying the contra proferentem rule against it. Otherwise, the very contract of insurance would become meaningless in the instant case. Hence, in our considered view, the respondent−insurance company was not right in repudiating the policy in question.
69. The object of seeking a mediclaim policy is to seek indemnification in respect of a sudden illness or sickness which is not expected or imminent and which may occur overseas. If the insured suffers a sudden sickness or ailment which is not expressly excluded under the policy, a duty is cast on the insurer to indemnify the appellant for the expenses incurred there under.
70. Hence in the instant case, the repudiation of the policy by the respondent insurance company was illegal and not in accordance with law. Consequently, the appellant is entitled to be indemnified under the policy. In view of the aforesaid discussion, we hold that the Commission was not right in dismissing the complaint filed by the appellant herein. Manmohan Nanda vs United India Insurance Co. Ltd. .
71. The appeal is allowed in the following terms:
(i) The respondents are directed to indemnify the appellant regarding the expenses incurred by him towards his medical treatment within a period of one month from the date of receipt of a copy of this judgment with interest at the rate of 6% per annum from the date of filing the claim petition before the Commission till realisation.
(ii) Since the expenses incurred by the appellant was in terms of US Dollars and the claim would be paid in terms of Indian Rupees, the F.A.No.320 of 2021 18 exchange rate as it existed on the date the claim petition was filed by the appellant herein before the Commission or at Rs.45 INR, whichever is lesser, shall be reckoned for the purpose of determining the conversion rate of US Dollars into Indian Rupees vide Meenakshi Saxena & Anr. Vs. ECGC Limited (formerly known as Export Credit Guarantee Corporation of India Limited) &Anr. - (2018) 7 SCC 479.
(iii) The appellant is also entitled to Rs. 1,00,000/− payable by the respondents towards the cost of litigation.
27. It can be easily concluded/inferred from the above mentioned facts and judgment of Hon'ble Supreme Court of India that some chronic ailments can spend decades, lurking in the body of an individual, until they suddenly spring-up in life. Many persons are having such diseases but they are having no knowledge about that. The diseases remain dormant in the body for years. Some illnesses have incubation period of anywhere from years to decades. Some diseases strike the body suddenly which have been dormant for years. Kidney disease can also remain dormant for many months/years. At any time and at any age, they can strike without warning, changing life forever. Be that as it may, the fact remains that the OPs have failed to bring any cogent and convincing evidence to prove that the ailment suffered by the complainant, for which she was hospitalized in Australia, was actually the result of any pre-existing disease suffered by her as is clear from discharge summary of Black Town Hospital, Sydney, Australia, had clearly diagnosed her disease as acute renal impairment. Thus, the claim was wrongly repudiated by OPs No.1-3 without having distinction between acute renal impairment and Chronic Kidney Disease. At any stage OPs No.1- 3 did not take any expert advice in this context from any Nephrologist before the claim was repudiated. The main advantage of seeking F.A.No.320 of 2021 19 overseas health cover was to seek benefits if a sudden illness or sickness strikes the insured on a foreign land. In the present case the OPs No.1-3 have failed to give such benefit to the duly insured person, which casts serious aspersions on their intent.
28. In view of the above, we find merits in the contentions raised by learned counsel for the appellants and deem it appropriate to set aside the impugned order dated 05.08.2021 passed by the District Commission. The appeal is dismissed against OP No.4/respondent No.4 and allowed against OPs No.1- 3/respondents No.1-3 in the following terms:-
i. OPs No.1-3/respondents No.1-3 are directed to indemnify the appellants regarding the expenses incurred i.e. AUD 32,000 Australian Dollar equivalent to Rs.17 Lac in Indian currency, on the treatment to Mrs.Sunita Malhotra now deceased within a period of 60 days from the receipt of the order with interest @ 6% per annum from the date of filing the complaint of before the District Commission till its realization.
ii. Since the expenses incurred by the appellant was in terms of AUD and the claim would be paid in terms of Indian Rupees, the exchange rate as it existed on the date of her discharge from Black Town Hospital, Sydney, Australia.
iii. The appellants are also held entitled to Rs.30,000/- payable by the respondents No.1-3/OPs No.1-3 towards cost of litigation.
Compliance of the order be made by OPs No.1-3/respondents No.1-3 within a period of 30 days from the date of receipt of certified copy of this order.F.A.No.320 of 2021 20
29. Since the main case has been disposed of, so all the pending miscellaneous applications, if any, are accordingly, disposed of.
30. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER April 20, 2023 (Rupinder 2)