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PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHANDIGARH
INDERJIT KAUSHIK, JASBIR SINGH GILL, JJ.
Neeru Diwan – Appellant
Versus
Bajaj Allianz General Insurance Company Ltd. – Respondent
First Appeal No. 500 of 2010
Decided On : 24-02-2014
Advocate Appeared:
For the Appellant : Mr. Munish Goel.
For the Respondents: Mr. Deepak Goyal for Mr. P.M. Goyal.
The central legal point established in the judgment is the requirement for the insurance company to provide sufficient evidence and affidavit to support the repudiation of a claim based on the exclusion clause of the insurance policy.
Headnote:
Consumer Protection Act - Insurance Claim - Section 15 - Act Section List: Section 15 of the Consumer Protection Act - The court discussed the Exclusion Clause 2.4 and 2.4.12 of the insurance policy, which states that the company shall be under no liability to make payment in respect of any claim directly or indirectly caused by any medical condition or complication arising from it which existed before the commencement of the policy period. The court highlighted the lack of evidence to prove that the appellant was suffering from a pre-existing disease at the time of taking the policy and emphasized that the insurance company failed to provide any affidavit of a doctor or person who recorded the history. The court set aside the order of the District Forum and directed the respondent insurance company to pay the appellant the claimed amount along with interest and litigation expenses.
Fact of the Case:
The appellant filed a complaint against the respondent insurance company for not making payment on the rightful claim of USD 23,877.66 for medical expenses incurred during treatment in the USA. The respondent repudiated the claim based on the exclusion clause of the insurance policy, alleging non-disclosure of pre-existing diseases by the appellant.
Finding of the Court:
The court found that the insurance company failed to prove that the appellant was suffering from a pre-existing disease at the time of taking the policy. The court highlighted the lack of evidence and affidavit to support the respondent's claim of non-disclosure of pre-existing diseases.
Issues: The main issue was whether the appellant's claim for medical expenses could be repudiated based on the exclusion clause of the insurance policy due to alleged non-disclosure of pre-existing diseases.
Ratio Decidendi: The court emphasized the lack of evidence and affidavit to prove the appellant's pre-existing diseases and concluded that the insurance company failed to establish the appellant's non-disclosure of material information. The court set aside the order of the District Forum and directed the respondent insurance company to pay the claimed amount along with interest and litigation expenses.
Final Decision: The appeal was accepted, the order of the District Forum was set aside, and the respondent insurance company was directed to pay the appellant the claimed amount along with interest and litigation expenses.
JUDGMENT :
JASBIR SINGH GILL, J.
1. This is an appeal filed by the appellant/complainant (hereinafter called ‘the appellant’) under Section 15 of the consumer protection act against the order dated 23.2.2010 of the District Consumer Disputes Redressal Forum, Kapurthala Additional Bench at Jalandhar (hereinafter called the ‘District Forum’) vide which the complaint of the appellant/complainant was dismissed by the District Forum.
2. Brief facts of the case are that the appellant has taken Travel Care Insurance Policy bearing No.OG-09-1202-9910-0000946 on 4.6.2008 for the period 9.6.2009 to 5.12.2009 by paying a premium of Rs.8549/-. No term and condition of the policy of the insurance were supplied to the appellant at the time of issuance of the policy schedule. It has been pleaded that on 16.7.2008, the appellant developed severe right flank pain and was to be admitted in Sunrise Hospital Las Vagas (USA) on 17.7.2008. The flank pain started on the night of 16.7.2008 and it was located in the right flank and radiating to the right lower quadrant of the abdomen. The appellant was discharged by the hospital on 18.7.2008. A bill of Rs.17,695.86 US Dollar had been issued by M/s Sunrise Hospital in respect of the treatment taken by the appellant from the said hospital besides incurring other medical expenses on account of treatment. The appellant incurred USD 23,877.66 on her treatment and lodged the claim with the respondent through email but the respondent has not made the payment of the right claim. That after coming to India, the claim was lodged on 18.11.2008 with the respondent. All the original documents, medical reports, original bills and payment receipts were submitted with the respondent but instead of paying the rightful claim of the appellant, the respondent has repudiated the claim vide letter dated 2.12.2008 while acting under clause No.2.4 and 2.4.12 of the policy of insurance, stating therein that it was a pre-existing disease and it existed prior to the commencement of policy. It was further pleaded that the appellant was not having any pre-existing disease as alleged by the respondent. The appellant developed right flank pain suddenly on 16.7.2008 and was to be admitted in the hospital for taking treatment. Thus, there is a deficiency in service on the part of the respondent. Hence the appellant filed the complaint with the prayer that the respondent may be directed to make payment of USD 23,877.66 or the equivalent amount in Indian currency if the medical expenses incurred by the appellant along with interest @ 12% from the date of lodging the claim till the payment; special damages of Rs.5.00 Lacs on account of defective and deficient services provided to the appellant and also for indulging in unfair trade practices be also awarded to the appellant and cost of the complaint amounting to Rs.20,000/- also be awarded to the appellant.
3. Upon notice the respondent filed the written statement by taking preliminary objections that the complaint is not maintainable against the Bajaj Allianz General Insurance Company Limited. It is clear from the clinical report by the treating hospital namely Sunrise Hospital and Medical Centre, Las Vegas that the appellant was having a past history of hypertension, depression, migraine, headache and had urinary calculi history of previous surgery of kidney stone. The said history has not been disclosed in the proposal form preventing the respondent from making a clear assessment for the risk to be insured and taking decision on whether an insurance cover was to be given and if so, with relevant exclusions. There was a “non Disclosure of material information” by the appellant at the time of taking insurance policy. The expenses in the present case are attributable to, arising out of, traceable to and a complication of pre-existing ailment of the appellant and not payable under the policy terms and conditions and falls under the exclusion Clause 2.4 & 2.4.12 of the insurance policy which
