State Consumer Disputes Redressal Commission
Ateeya Sandhu vs Reliance General Insurance Company ... on 6 May, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.15 of 2011
Date of Institution: 16.02.2011.
Date of Decision: 06.05.2015.
Ateeya Sandhu minor daughter of S. Ranjit Singh Sandhu resident of
350, Green Avenue, Amritsar Punjab through her natural guardian
and father S. Ranjit Singh Sandhu.
.....Complainant.
Versus
1. Reliance General Insurance Co. Ltd., SCO no.122, Opposite
Improvement Trust Complex, Ranjit Avenue, Amritsar through
its Branch Manager.
2. Reliance General Insurance Co. Limited, Head Office 570-
Rectifier House, Naigaun Cross Road, Wadala (W), Mumbai
Maharashtra through its Chairman/Managing Director.
3. International SOS, Suit no.606, 6th Floor, Copia Corporate
Suites, Plot no.9, Jasola District Centre, New Delhi-110025
through its Manager.
4. Sameer Syal, Sales Manager C/o Reliance General Insurance
Co. Ltd., SCO no.122, Opposite Improvement Trust Complex,
Ranjit Avenue, Amritsar.
....Opposite parties
Consumer complaint under Section
17 of Consumer Protection Act, 1986
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Shri H.S. Guram, Member.
Present:-
For the complainant : Sh. Parvez Chug, Advocate For opposite party no.1&2 : Sh. Rajneesh Malhotra, Advocate For opposite party no.3 : Ex-parte ..............................................Consumer Complaint No.15 of 2011 2
J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant Ateeya Sandhu, who is minor, has filed this complaint through her next friend, who has no adverse interest against her, under Section 17 of Consumer Protection Act 1986 (in short "the Act") against the OPs on the averments that she has been insured with the OP nos.1 and 2 since for the last three years, as per the policies stated below:
i. Insurance Business for authorized Mahindra dealership in the name of Universal Motors, Amritsar;
ii. Personal accident and medi claim insurance for the entire family members;
iii. Comprehensive insurance of various vehicles owned by the family;
iv. Full insurance cover of residential house including household articles;
v. Building insurance of authorized dealership showroom etc. The family members of the complainant were insured, vide medi claim insurance policy bearing no.1000842611. The complainant had not availed any kind of benefit since the inception of the said medi claim policy on 20.01.2008. The complainant went to United States on 31.07.2009 for a visit. The father of the complainant got travel policy issued to complainant, styled as Reliance Travel Care Insurance Policy, bearing policy no.2003592817000953 valid for the period from 31.07.2009 to 28.09.2009 covering an amount of US $50,000. The above policy was taken on the basis of advice of OP Consumer Complaint No.15 of 2011 3 no.4. All the expenses in case of any medical emergency met by the complainant were to be incurred by the OP nos.1 and 2. On 26.08.2009, father of the complainant asked OP no.4 to get the travel care insurance policy in the name of complainant enhanced to the maximum limit allowable, as he always believed in covering the maximum risk. The father of the complainant paid the extra premium for covering the enhanced risk upto US $2,50,000. The father of the complainant issued cheque no.252808 dated 27.08.2009, which was credited in the account of OP no.1 on 08.09.2009. The said enhancement would take effect on the expiration of first policy i.e. on 28.09.2009, as conveyed to him. The complainant felt pain in her back in the first week of October 2009 in US and she was taken to hospital for her checkup, where the doctors diagnosed her with having 620 Right thoracic Scoliosis. Surgery of the complainant was likely to be scheduled in January 2010. It was revealed that complainant was at grave risk for further progression given her tender age and curve magnitude. It was observed by the doctors in their report that the complainant neither had any prior treatment of scoliosis nor she had been on any medication for the same. Before undergoing the above surgery in January 2010, the father of the complainant contacted OP no.1 intimating it about it. OP no.3 rejected the claim, vide letter dated 27.11.2009 on the ground that the complainant was having pre-existing disease under the exclusion clause of the contract of insurance. The claim of complainant was Consumer Complaint No.15 of 2011 4 repudiated for the reason that the policy came into effect from 29.09.2009 and the first consultation of the complainant with her doctors took place on 06.10.2009 and as such Scoliosis cannot become severe in a week. The father of the complainant entered into correspondence with OPs, but to no effect. OPs also rejected the claim of the complainant. The complainant has, thus, filed the complaint directing the OPs to pay the amount of Rs.30,40,982.72 paise incurred on the treatment of complainant alongwith interest @24% p.a. from 14.01.2010 till its realization. The complainant also prayed for Rs.5 lakhs as compensation for mental harassment and for any other relief.
2. Upon notice, OP nos.1, 2 and 4 appeared and filed joint written reply and contested the complaint of the complainant vehemently. It was averred in the written reply in the preliminary objections by them that no cause of action has accrued to the complainant to file the complaint. It was further averred that no claim is payable with regard to any pre-existing disease of the insured. It was further averred that the documents submitted by the complainant's father were sent to M/s Probus Associates and Consultants Pvt. Ltd. for investigation and they found that the complainant was trying to mislead by concealing the actual circumstances. The case of the complainant was of pre-existing disease and hence no claim was payable to the complainant. The complaint was resisted even on merits on the above referred Consumer Complaint No.15 of 2011 5 grounds. The answering OPs have not disputed this fact that complainant took the medi claim policy against the premium. OPs also admitted that the complainant took up a new insurance policy no.2003592817001029 valid from 29.09.2009 to 29.03.2010 for assured sum of USD 2,50,000. The answering OPs specifically pleaded that after repudiation of the claim by the TPA i.e. OP no.3, the representation of father of the complainant was received and the same was replied by OPs that the case of the complainant was found to be covered by exclusion clause no.3 of insurance policy, as complainant was already suffering from the pre-existing disease of Scoliosis and hence the insurance contract is liable to be rejected on that ground. The answering OPs prayed for the dismissal of the complaint.
3. OP no.3 is set ex-parte in this case.
4. We have heard the learned counsel for the parties and have also gone through the file of the case. The parties have pleaded prolix facts in this case in their respective pleadings. We need to touch the controversy in core in this case. We have examined the pleadings of the parties respectively. We have also examined the documents on the record of the parties. The affidavit of Ranjit Singh Sandhu father of the complainant, being next friend of the complainant, who is minor on the record. Annexure C-1 is copy of the policy document dated 17.01.2008, covering the amount of Rs.5 lakhs for complainant. Annexure C-2 is another policy for the Consumer Complaint No.15 of 2011 6 period from 20.01.2009 to 19.01.2010. Annexure C-3 is copy of Reliance Travel Care Insurance Policy for individual for the period from 31.07.2009 to 28.09.2009 covering USD 50,000. The relevant policy document is Annexure C-4 for the period from 29.09.2009 to 29.03.2010 covering USD 2,50,000 against further premium. The complainant was insured under this policy. It has, thus, been proved that complainant was insured with the OPs, when she was in US for the sum assured of USD 2,50,000/- for the period from 29.09.2009 to 29.03.2010. Annexure C-5 is the photocopy of letter dated 06.10.2009, the case summary of the complainant by the concerned doctor in US. It has proved that it recorded past medical history of the complainant as negative. There is no prior treatment of complainant. There is no complainant's family history of scoliosis. She was 12 years of age. It is recorded that adolescent idiopathic scoliosis with relatively severe curve and skeletal immaturity. She is at further risk for further progression, given her age and curve magnitude. It was further observed in this case summary of the complainant that she is at further risk for further progression in her remaining adolescence and adult life. Annexure C-6 is the photocopy of letter dated 27.11.2009 to the complainant regarding rejecting the claim on the ground of pre-existing disease. Annexure C-9 is the medical treatment of the complainant and bills. Annexure C-10 is copy of claim form on the record.
Consumer Complaint No.15 of 2011 7
5. We have also considered the case of the OPs in this case. Annexure R-1 is copy of policy document in the name of complainant. The submission of the OPs is that the complainant was already suffering from scoliosis and this material fact has been suppressed by her from the OPs when she entered into contract of insurance. Hence, the claim of the complainant has rightly been rejected.
6. From medical literature, we find that scoliosis is a medical condition in which a person's spine is curved from side to side. Although it is a complex three-dimensional deformity, on an X-ray, viewed from the rear, the spine of an individual with scoliosis can resemble an "S' or a "C", rather than a straight line. Scoliosis is typically classified as either congenital (caused by vertebral anomalies present at birth), idiopathic (cause unknown, sub- classified as infantile, juvenile, adolescent, or adult, according to when onset occurred), or secondary to a primary condition. Secondary scoliosis can be the result of a neuromuscular condition (e.g., spina bifida, cerebral palsy, spinal muscular atrophy, or physical trauma) or syndromes such as Chiari malformation. "Recent longitudinal studies reveal that the most common form of the condition, late-onset idiopathic scoliosis, is physiologically harmless and self-limiting. The rarer forms of scoliosis pose risks of complications." Patients, who have reached skeletal maturity are less likely to have a worsening case. Some severe case of scoliosis Consumer Complaint No.15 of 2011 8 can lead to diminishing lung capacity, putting pressure on the heart, and restricting physical activities. In the etiology of scoliosis, it is recorded in medical literature that an estimated 65% of scoliosis cases are idiopathic, about 15% are congenital and about 10% are secondary to a neuromuscular disease. Adolescent idiopathic scoliosis has no clear casual agent, and is generally believed to be multifactorial, although genetics are believed to play a role. At least, one gene CHD7 has been associated with the idiopathic form of scoliosis. The medical literature thus records that an estimated 65% of scoliosis cases are idiopathic, the cause of this unknown. The matter can be clinched from perusal of Annexure C-5, which is the summary of the case history, recorded by the doctor in America to the effect that the impression: adolescent idiopathic scoliosis with relatively severe curve and skeletal immaturity. It is recorded that she has at further risk of further progression given her age and curve magnitude. The doctor suggested undergoing spinal fusion to limit the risk of progression in her remaining adolescence and adult life. There is no medical history for any treatment of scoliosis of complainant and she has no prior surgeries nor took any medication, as recorded in Annexure C-5 on the record. We are, thus, of this clear view from perusal of Annexure C-5 that the complainant was affected with adolescent idiopathic scoliosis, the cause of which is unknown. We can presume that this case was not a pre-existing Consumer Complaint No.15 of 2011 9 disease case, as there is no medical treatment or history of the complainant prior thereto.
7. We are of this view that pre-existing disease condition means chronic disease. In this case, the complainant had not been treated prior to commencement from the period of insurance. The National Commission has examined this point in case "National Insurance Company Ltd. & Anr. Vs. Mahendra Singh" reported in 2010(1) CLT403-404 and held that the pre-existing disease is one for which the insured should have undergone hospitalization or undergone long treatment or operation. Otherwise, for laymen these day to day normal problems are not to be disclosed as even otherwise medical terminology of such problems is difficult to understand and know. Merely because some positive signs in respect of so-called disease are noticed later on, but for that; that disease could not be treated as a pre-existing disease. Quite often, a person, who might be suffering from problem with the heart, he may not be knowing about it and may not go to a doctor. The pre-existing disease must be in the knowledge of the insurer. We find that complainant neither had any pre medical history for this disease nor took any treatment or medication earlier therefor, as is evident from Annexure C-5. Consequently, stand of the OPs is not justified in rejecting the claim of the complainant, as she was duly insured by Annexure C-3 on the record against the premium with OPs. Consumer Complaint No.15 of 2011 10
8. In view of our above discussion, we accept the complaint of the complainant by directing OP nos.1 and 2 to settle the claim of the complainant. From the record of the case contained at page no.59, it is shown the prepaid fee as US $2,707 and non-prepaid estimated fee as US $4,165. So, considering the facts and circumstances of the case, the complainant has prayed for direction to the OPs to pay the amount actually incurred on her treatment alongwith interest. We hereby direct OP nos.1 and 2 to pay the amount of Rs.30,40,982/- (Thirty Lakh Fourty Thousand Nine Hundred Eighty Two only)actually incurred by the complainant on her treatment alongwith interest @10% per annum from the date of treatment till actual payment. In addition to that, we also award the amount of Rs.1 lakh (One lakh) as compensation for mental harassment to the complainant and Rs.15,000/- (Fifteen Thousand) as costs of litigation within 45 days from the date of receipt of certified copy of the order. The above referred amount be invested in the fixed deposit receipt in the name of minor complainant in some nationalized bank for a period of two years. The complainant could withdraw some of the amount through her next on proof of strong circumstances in her welfare, like her education and treatment. As and when she becomes major, she would be entitled to withdraw this amount on proof of her majority.
9. Arguments in this complaint were heard on 29.04.2015 and the order was reserved. Now the order be communicated to the Consumer Complaint No.15 of 2011 11 parties. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER (H.S. GURAM) MEMBER May 6, 2015.
(MM)