DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

                                      Consumer Complaint No. 445 of 1.11.2019

                                      Decided on: 15.7.2024

Balbir Singh Kharoud son of Late Sh.Amar Singh, aged about 56 years resident of House No.88, Century Enclave, Nabha Road, Patiala-147001.

                                                                   …………...Complainant

                                      Versus

1. Bharti Axa General Insurance Co. Ltd.,19^th Floor, Parinee Crescenzo , G-Block, Bandra Kurla Complex, Opposite MCA Club, Bandra(E), Mumbai-400051 through its Managing Director.
2. Karvat Cover More Assist Pvt. Ltd. SCO-124, 3^rd Floor, 3^rd Cabin Feroze Gandhi Market, Ludhiana through its Authorized Signatory.

                                                                   …………Opposite Parties

Complaint under the Consumer Protection Act

QUORUM

                                      Ms.Gagandeep Gosal, President

                                      Sh.G.S.Nagi, Member   

ARGUED BY

                                       Sh.M.L.Sharma, counsel for complainant.

                                      Sh.Amit Gupta, counsel for OP No.1.

                                      Complaint against OP No.2 has been dismissed

                                      as withdrawn vide order dated 29.1.2020                           

 ORDER

                                      G.S.NAGI,MEMBER

1. The instant complaint is filed by Balbir Singh Kharoud (hereinafter referred to as the complainant) against Bharti Axa General Insurance Co. Ltd and another (hereinafter referred to as the OP/s) under the Consumer Protection Act (for short the Act).
2. It is averred in the complaint that the complainant purchased a overseas travel insurance policy vide certificate No.SX2502710 dated 23.7.2019 of OP No.1 for his Canada tour from 17.8.2019 to 13.9.2019 and paid Rs.2720/- for the same for the sum assured of Rs.15000 US$. All the formalities were completed through OP No.2
3. That during the visit of Canada on 26.8.2019 in the morning while going back from washroom to bed complainant suddenly slipped and his right ankle was fractured. Complainant got treatment for the same for the period from 26.8.2019 to 27.8.2019 and incurred 13231.31$.Complainant submitted the bills for payment to the OP. That OP No.1 vide its letter dated 16.10.2019 informed the complainant that his claim is not admissible under cashless and reimbursement as insured was under influence of alcohol and fell down after drinking alcohol.
4. That the non admissibility of claim is baseless as there is no evidence or any medical test of the complainant that he was under alcohol influence and also not covered under exclusion claim. That the act of the OP is clearly amounting to deficiency in service. Complainant also suffered harassment and mental agony. Hence this complaint with the prayer for acceptance of the same with a direction to the OP to make the payment of bills/claim amounting to $13231.31(approximately Rs.7,00,000/-) alongwith interest @9% per annum; to pay compensation of Rs.50,000/- and also to pay Rs.11000/- as litigation expenses.
5. Upon notice OP No.1 appeared through its counsel and filed written reply having contesting the claim while complaint against OP No.2 has been dismissed as withdrawn vide order dated 28.1.2020.
6. In the written statement filed by OP No.1 preliminary objections have been raised that  the complainant has purchased the Overseas Travel Insurance policy with effect from 17.8.2019 to 13.9.2019 and the emergency medical expenses coverage including other coverage (as per the policy) was granted strictly subject to the terms and conditions of the policy. Complainant intimated one claim with respect to fracture of his right ankle for which he remained admitted from 26.8.2019 to 27.8.2019.The said claim was duly processed as per the terms and conditions of the policy and it was found that the said claim is not admissible under cashless and reimbursement as insured was under the influence of alcohol and fell down and as such the claim was repudiated  and email in this regard was sent to the complainant on 26.10.2019.
7. On merits, OP No.1 reiterated the contents taken in the preliminary objections which are not repeated for the sake of brevity. After denying all other averments of the complainant, OP has prayed for dismissal of complaint.
8. To prove the case, the ld. counsel has tendered in evidence Ex.CA affidavit of the complainant alongwith documents Ex.C1 copy of tax invoice,Ex.C2 copy of welcome letter,Ex.C3 copy of policy,Ex.C4 copy of no claim letter,Ex.C5 copy of invoice dated 26.8.2019,Ex.C6 copy of bill,Ex.C7 copy of bill,Ex.C8 copy of invoice and closed the evidence.
9. The ld. counsel for OP No.1 has tendered in evidence Ex.OPA affidavit of Rishikant,Ex.OP1 copy of policy with terms and conditions,Ex.OP2 copy of repudiation mail,Ex.OP3 copy of history and physical report and closed the evidence.
10. The ld. counsel for the complainant has filed the written arguments. We have gone through the same, heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
11. It is not disputed that the complainant has purchased the overseas travel insurance policy vide certificate No.SX2502710 dated 23.7.2019 for self, as per tax invoice, Ex.C1 valid from 17.8.2019 to 13.9.2019 and made a payment of Rs.2720/- as per welcome letter,Ex.C2. The complainant was covered for            US $ 15000 on account of personal accident, accidental death, PTD (permanent total disability, PPD (permanent partial disability) as per the policy details,Ex.C3. The complainant during his stay at Canada had a fall in the morning of 26.8.2019 when he was coming from the washroom to his bed leading to fracture into his right ankle. The complainant reported for treatment at William Osler Health Centre in Canada from 26.82019 to 27.8.2019 as per Ex.C6 and incurred an expenditure of CAD 13231.31 for the said treatment with the breakup as per invoice amounting to $909.86 for surgical assistance at emergency for open ankle fracture repair by Dr.Julia Lee, as per Ex.C5, invoice amounting to $5740 in Emergency of William Osler Health System,Ex.C6, $1000/- to Dr.John Petrasek, as per receipt Ex.C7 and $5581.45 paid to Dr.John P.Harrington, as per receipt Ex.C8. The bills amounting to Rs.13231.31 were submitted with the OP No.1 for the settlement of the claim which was repudiated  by the OP No.1 as per the mail dated 16.10.2019,Ex.C4 on the ground that the insured was under the influence of alcohol and fell down after drinking alcohol.
12. The complainant has submitted that the claim was denied on wrong facts as the complainant was not under the influence of the liquor as alleged by the OP No.1. It is also submitted that the claim is not covered under any exclusion clause as per the terms and conditions of the policy. The complainant as such has prayed for the settlement of the claim for 13231.32 CAD approximately Rs.7lac alongwith interest, compensation and litigation expenses.
13. The OP No.1 has submitted that the policy Ex.OP1 was issued to the complainant which was valid from 17.8.2019 to 13.9.2019 strictly as per terms and conditions of the policy. It has further been submitted that the complainant intimated one claim in respect of the fracture of his right ankle for which he got the treatment from 26.8.2019 to 27.8.2019. However, it is submitted that reimbursement of CAD 13231.21 is being sought by the complainant whereas an expenditure of CAD 6581.45 has only been incurred by him. The said claim was assessed as per the terms and conditions of the policy and it was found that the claim is not admissible as the complainant was under the influence of alcohol, as per the history and physical report dated 26.8.2019 of William Osler Health System, Brampton,Ex.OP3 and also produced by the complainant as Ex.C6, at the time of the fall and the same was intimated to the complainant vide email dated 26.10.2019,Ex.OP2. The ld. counsel for OP No.1 has submitted that the claim was rightly repudiated as per the terms and conditions of the policy and has prayed for the dismissal of the complaint.
14. Admittedly the complainant had purchased overseas travel insurance policy for the period 17.8.2019 to 13.9.2019. He had a fall in the night of 26/27.8.2019 and was treated for fracture in his right  tibia (ankle) at William Osler Health System, Brampton. The complainant as well as OP No.1 have produced the copy of the history and physical report dated 26.8.2019,Ex.C6/OP3 as dictated by Pardeep John Alexander, wherein it has been stated that the complainant namely Balbir Singh Kharoud was drinking last night when he had a fall at about 1.45 in the morning . He was going back from the washroom to the bed. He has sustained an open fracture of his right tibia. He was treated in the emergency and surgery will take in the trauma room by my colleague Dr.Benomoftah.
15. The claim was subsequently lodged by the complainant and repudiated by the OPs on the ground that the said claim is not admissible as the insured was under the influence of alcohol and fell down after drinking alcohol. The complainant has also produced the copy of the operative report dated 27.8.2019,Ex.C8,wherein it has been stated the injury occurred while visiting to friend’s house.
16. We have gone through the policy documents produced by OP No.1 and under the said policy Personal Accident is covered under the Section of Coverage, wherein it has been stated the company shall compensate the insured/insured person or his/her nominees or legal representative as the case may be for accidental whilst on a trip covered by this policy) solely and directly caused by external violent and visible means resulting in death within 12 calendar month of the occurrence of such injury. As such no conditions have been specified for the exclusion of claim under personal accident. The claim was repudiated only on the ground that the complainant was under the influence of liquor. However, no such condition has been specified under the Section of Personal Accident. The clause stated above covered the accidental death within 12 months from the date of accident only and the Section under Personal Section is blank without any conditions. As such in our opinion as no condition has been specified in the policy document, the claim has repudiated on baseless grounds.As such the argument that claim was denied as per the terms and conditions of the policy is not justified as no such terms and conditions exist under the head PA of policy.
17. Now as far as the claim amount is concerned the claim has been lodged for 13231.31CAD i.e. for Rs.7lac approximately. However, on going through the documents produced by the complainant it transpires that the complainant had produced two receipts i.e. receipt for anesthesia of Dr.John Petrasek,Ex.C7 for an amount of 1000CAD and receipt of 5581.45 of Dr.John P. Harrington,Ex.C8, totaling 6581.45CAD. The complainant has also produced two invoices i.e. invoice in respect of fee of Dr.Julia Lee as a surgical assistance at emergency for open ankle fracture repair amounting to 909.86CAD and invoice amounting to $5740 in Emergency of Willian Osler Health System, the payment receipts in respect of which have not been produced by the complainant.
18. In view of the discussion above, we partly allow the complaint and direct OP No.1 to settle the claim of the complainant as per the receipts produced/to be produced by the complainant at the conversion rate prevalent at the time of admission of the complainant in the hospital at Canada. OP No.1 is also directed to pay Rs.10,000/- as compensation inclusive of litigation expenses,  for causing mental agony and harassment to the complainant. Compliance of the order be made by OP No.1 within a period of 45 days from the date of receipt certified copy of this order.    
19.           The instant complaint could not be disposed of within stipulated period due to heavy rush of work and for want of Quorum from long time.
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                                              G.S.Nagi                       Gagandeep Gosal

                                              Member                          President