Haryana

Panchkula

CC/289/2020

KALIASH CHANDER. - Complainant(s)

Versus

RAMA TRAVELS. - Opp.Party(s)

ROBIN SATHI

10 Feb 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	289 of 2020
Date of Institution	:	22.09.2020
Date of Decision	:	10.02.2022

 

 

Kailash Chander Godara, aged 77 years son of late Shri Bihari Lal, resident of House No. 335, Sector 17, Panchkula.

 

                                                                           ….Complainant

Versus

1.     Rama Travels, SCO No. 254, Ground Floor, Sector-16, Panchkula, through its authorized signatory.

2.     Care Health Insurance Ltd. (earlier known as The Religare Health Insurance Company Limited), Top floor, SCO No. 56-58, Sector 9D, Chandigarh, through its Branch Manager.

3.     Care Health Insurance Ltd. (earlier known as The Religare Health Insurance Company Limited), having corporate office at Vipul Tech Square, Tower C, 3^rd Floor, Gold Course road, Sector-43, Gurgaon-122009, through its authorized signatory.                         

….Respondents/Opposite Parties

4.     Alchemist Hospital, Sector-21, Panchkula, through its authorized Signatory.

….Proforma Respondent

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019 (AS AMENDED UPTO DATE).

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

                        Dr. Sushma Garg, Member.

 

For the Parties:   Complainant in person alongwith Shri Robin Sathi, Advocate.

                        Shri Prince Pasricha, Advocate, Counsel for the OPs No.2 and 3.

ORDER

(Sh. Satpal, President)

1.             The brief facts of the present complaint are that the Complainant and his wife wanted to visit their son at United Kingdom from 22.06.2019 to 02.10.2019 and for this purpose, the Complainant visited the OP No.1 for tickets etc. The OP No.1 disclosed that for that purpose the Complainant had to avail medical policy which is mandatory for travelling overseas and further disclosed that the OP No.1 is having links with various Insurance companies. The Complainant agreed for the same and paid the amount for the said Insurance policy for the Complainant and his wife to OP No.1. Thereafter, the OP No.1 applied for the health policies for the Complainant and his wife to the OPs No. 2 and 3 and they issued Health/Travel Insurance Policy bearing no. 14223571 and the sum assured of the said policy was 30000 Euro and the fact regarding the pre-existing disease and treatment was mentioned in the said Insurance policy, as the Complainant had duly informed about the same to the OPs. The Complainant got his all the major medical tests done from the Alchemist Hospital, Sector 21, Panchkula just about 20 days prior to the trip i.e. 30.05.2019. As per reports, the health of the Complainant was stable and doctor verbally disclosed that he was fit for travelling abroad. As per travel plan, the Complainant and his wife reached their son in UK on 22.06.2019 but on 16.09.2019, the Complainant fell ill and the son of the Complainant got him admitted in Royal United Hospital at Bath(UK) NHS Foundation Trust. In the evening on the same day in Septic Shock Secondary to community acquired Pneumonia and further the Complainant had an acute kidney injury with hyperkalaemia with ECG changes. The medical treatment continued and the Complainant was discharged on 30.09.2019 to care of family and was advised not to travel since the Complainant was not in his complete health. The said hospital raised the invoice No. 10363869 dated 09.10.2019 for amount of 29086.38 GBP from the Complainant. The Complainant submitted his claim with the OPs No. 2 and 3 for payment of bill/invoice amount to the hospital. The OPs No. 2 and 3 raised some queries on 15.10.2019 which were duly replied on 18.10.2019 by the son of the Complainant. The Complainant returned to India on 28.10.2019 instead of scheduled date i.e. 02.10.2019 and contacted the OPs No. 2 and 3 for settlement of the claim but no positive response was received from OPs No. 2 and 3 and, therefore, the son of the Complainant paid the amount of 29086.38 GBP to the said Hospital on 23.12.2019. Thereafter, the Complainant contacted the OP No.1 and with the intervention of OP No. 1, the OPs No. 2 and 3 contacted the Complainant on 07.01.2020, and they raised the same queries again to which the Complainant again replied. Again on 21.01.2020, the OPs No. 2 and 3 raised some more queries to which the Complainant replied on 28.01.2020.

                On 26.06.2020, the OPs No. 2 and 3 sent a mail to said Hospital to pay the partly approved amount of 6495.63 GBP without any information to the Complainant. The said Hospital reverted back to the OPs No. 2 and 3 disclosing that the Complainant had already made the payment on 23.12.2019 and asked them to contact the Complainant in this regard. The hospital informed the Complainant about the said partial passing of claim on which the Complainant shared bank details with the Ops No. 2 and 3 on 01.07.2020 for accepting the said amount through e-mail and protested for the remaining amount of the unsettled claim. The Complainant received the partial payment of claim and requested the OPs No. 2 and 3 to supply the detailed reason for not passing the claim of the Complainant in entirety vide e-mail dated 04.08.2020 to which vide letter dated 21.08.2020, they did not provide the requisite details and informed that partial claim given to the Complainant was final settlement. The Complainant has been under treatment from the Civil Hospital, Panchkula for the past many years and major test have been conducted time to time since 2010. Due to unfair trade practices and malafide intention of the OPs No. 2 and 3, the Complainant has suffered financial loss, harassment and mental agony. Hence, the present complaint.

2.             Upon notice, OPs No. 2 and 3 appeared through their counsel and filed written statement raising preliminary objections qua the complaint is not maintainable being false and frivolous. On merits, it is stated by OPs No. 2 and 3 that they admit the issuance of insurance policy bearing no. 14223571 w.e.f. 22.06.2019 to 02.10.2019 in respect of the Complainant and his wife. The Complainant approached the OPs No. 2 and 3 for reimbursement of claim no. 91378083 in respect of hospitalization w.e.f. 16.09.2019 till 30.09.2019 at Royal United Hospital Bath NHS Health Sciences Centre. The Complainant was hospitalized with diagnosis of Community acquired Pneumonia, raised troponin on background of ischemic heart disease, probable type 2 MI, medically managed, acute kidney injury with oliguria and hyperkalaemia. They have processed the claim of the Complainant as per the policy terms and conditions. The claimed amount was 29086.38 GBP which equals 32576.30 EURO (1GBP=1.12 EURO). A sub-limit of 22470.47 GBP which equals 25166.93 EURO was deducted as sub-limit deductions and further 75 EURO were deducted in accordance with serial no. 1 of policy benefits, In patient care(Hospitalization expenses) on the policy certificate. An amount of 6548.54 GBP which equals 7334.37 EURO was approved and paid via NEFT No. N233201220245868 on 20.08.2020. One percent of sum insured is 300 EURO. Accordingly, the calculations were made and the claim was approved vide settlement letter dated 21.08.2020. The OPs No. 2 and 3 have paid the claim post doing the deductions as per the policy terms and conditions and the claim is not related to any pre-existing disease, however, it was processed as per the applicable sub limits as per Insurance policy. Therefore, the complaint is not maintainable and liable to be dismissed against the OPs.

3.             The Complainant has tendered his affidavits as Annexure C-A and C-B along with documents Annexure C-1 to C-16 in evidence and closed the evidence by making a separate statement. On the other hand, the Ld. Counsel for the OPs No. 2 and 3 by making a separate statement tendered affidavit as Annexure R-A alongwith documents as Annexure R-1 to R-7 in their defence, and closed the evidence.

4.             We have heard the Learned counsels for the parties and gone through the record minutely and carefully.

5.             There is no dispute with regard to the hospitalization of the Complainant, on account of his ailments, w.e.f. 16.09.2019 till 30.09.2019 in the Royal Hospital Bath(UK). Further, the expenses incurred during the treatment of the Complainant as demanded by the complainant vide invoice/Bill amounting to 29086.38 GBP is also not disputed. Further, there is no issue of the Complainant having any kind of pre-existing disease as per averments made by the OPs in Para No. 6 of the preliminary submissions of its written statement. The OPs No. 2 and 3 after making correspondence with the Complainant on 15.10.2019, 07.01.2020 and 21.01.2020 approved a sum of EURO 7333.56= Rs. 579175.23, and deposited the same in the account of the Complainant on 20.08.2020. The Complainant sought the reasons of partial approval of his claim vide mail dated 04.08.2020 (Annexure C-11) but the OPs No. 2 and 3 instead of explaining/clarifying the reasons of the partial approval of the claim informed the Complainant vide letter Annexure C-12 that the claim has been settled for a sum of EURO 7333.56= Rs. 579175.23.

6.             The Complainant alleging deficiencies and unfair trade practice has contended that his claim has not been paid in its entirety and thus, has claimed the payment of balance amount of 22591.44 EURO from the OPs No. 2 and 3. The main submissions of the Complainant may be summarized as under:-

(i)     That the OPs No. 2 and 3 never supplied to him the insurance    policy bearing no. 14223571, containing the detailed terms and   conditions including the clause no. 2.1.1.H. on the basis of which   the claim has been settled.

(ii)    That the claim in question was/is liable to be settled as per the   contents of the policy certificate (Annexure C-2 Colly/R-2 Colly)       instead of clause No. 2.1.1.H. of the policy terms and conditions   (Annexure R-3).

                In support of his contentions, the Ld. Counsel for the Complainant has placed reliance upon the following case laws:-

1. M/s Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. 2000(AIR) (SC) 1014.
2. Lachhman Sarup Vs. LIC and another 2009 (1) CPJ 11.
3. Reliance general Insurance Co. Ltd. and another Vs. Rajbir Kaur, 2011 (1) CLT 697.
4. Oriental Insurance Co. Ltd. Vs. Partap Bachhu Bhai Rathod, Revision Petition No. 1143 of 2015 decided on 01.05.2019 (Law Finder Doc ID# 1550173)
5. Maneti Rawat Vs. Life Insurance Corporation of India and others(CC No. C-215 of 1998) decided by Hon’ble Delhi State Consumer Disputes Redressal Commission on 24.09.2007.

 

7.             On the other hand, the only submissions of OPs No.2 and 3 is that a sum of 7333.56 EURO has been paid to the Complainant as per his entitlement on the basis of clause No. 2.1.1.H. of the policy terms and conditions (Annexure R-3). Regarding the supply of policy terms and conditions, it is contended that the same were supplied to the Complainant on 24.05.2019 while he was insured. The Ld. Counsel for the OPs No.2 and 3 while inviting our attention towards policy certificate i.e. Annexure C-2 Colly/R-2 Colly contended that in case the terms and conditions of the policy were not supplied to the Complainant then in that eventuality, he was at liberty to inform the OPs No.2 and 3 at its mail address. For the sake of clarity and convenience, the relevant part of the policy certificate i.e. Annexure C-2 Colly/R-2 Colly is reproduced as under:-

“You shall ensure that you have received, read and understood the terms and conditions as shared along certificate of insurance. If you have not received terms and conditions of the policy, please e-mail us at customerfirst@religare.com.”

                In support of his contentions, the Ld. Counsel for the OPs No.2 and 3 has placed reliance upon the law laid down by the Hon’ble Apex Court in the Civil Appeal No. 1557 of 2004 and others, titled as ‘Export Credit Guarantee Corporation of India Ltd. Vs. M/s Garg Sons International’ decided on 17.01.2013.

8.             The aforementioned contentions of the OPs No.2 and 3 regarding the supply of insurance policy No. 14223571 alongwith its terms and conditions are not acceptable to us as there is no averments in the written statement claiming the supply of said policy terms and conditions to the Complainant. There is nothing on record to show as to when, how and in what manner or mode, the policy in question was sent to the Complainant. As per record, the Complainant was provided the three documents i.e. Forwarding letter dated 24.05.2019 (Annexure C-2), Certificate of Insurance (Annexure C-2 Colly) and Health Card through OP No.1. In this regard, the relevant bracketed portion of the certificate of insurance (Annexure C-2 Colly), for the sake of clarity and convenience, is reproduced as under:-

“Soft copy of the Certificate of Insurance and Health Card has been sent on your registered e-mail id at RAMATRAVELS16@YAHOO.COM. In case of any change in e-mail id and non-receipt of any of above document, please contact on our Toll Free number 1800-102-4488 immediately. Request for Policy Extension needs to be made at least one day prior to policy end date.”

                A bare perusal of the above, makes it evident that the Complainant was provided the certificate of insurance and health card only with the said forwarding letter dated 24.05.2019 (Annexure C-2) through OP No.1. From above, it is evident that the insurance policy alongwith its term and conditions (Annexure R-3) was neither sent to the Complainant nor to the OP No.1.

 9.            Apart from above, it is relevant to mention here that the OPs No.2 and 3 preferred not to inform the Complainant about the reasons of partial approval of his claim when they were particularly so asked by the Complainant vide his mail dated 04.08.2020 (Annexure C-11). The above stated factual position does not leave any scope of doubt with us with regard to the fact that the Complainant was never furnished the insurance policy alongwith its term and conditions (Annexure R-3). We agree with the contentions of the Complainant that the said insurance policy alongwith its term and conditions came to his notice only after the filing of written statement by the OPs No.2 and 3 in the present complaint.

10.            Now coming to the second issue i.e. with regard to the applicability of the clause 2.1.1.H. of the policy terms and conditions (Annexure R-3) while settling the claim of the Complainant, it is found that there are two pre-requisite conditions for the applicability of the said clause. For the sake of convenience and clarity, the relevant part of the clause 2.1.1.H. of the policy terms and conditions (Annexure R-3) is reproduced as under:-

“Conditions for In-Patient Care (Applicable only if opted by the Policyholder and specifically mentioned in the Policy Certificate).”        

                From a bare perusal of above, it is clear that option of the Complainant was mandatory. In the present case, neither any such option made by the Complainant is available on record nor it is the case of the OPs that such option was ever sought from the Complainant. Regarding the second condition, it is found that the certificate of insurance policy (Annexure C-2 Colly/R-2 Colly) do not contain anything about the applicability of clause 2.1.1.H. of the policy terms and conditions (Annexure R-3). Furthermore, the OPs No.2 and 3 were aware about the date of birth of the Complainant i.e. 10.02.1943 as per forwarding letter (Annexure C-2) and thus, it was incumbent upon the OPs to have the option/consent of the Complainant by writing a letter by providing the terms and conditions of the insurance policy (Annexure R-3). Therefore, the case of the Complainant is liable to be settled on the basis of contents of the policy certificate (Annexure C-2 Colly/R-2 Colly) instead of clause 2.1.1.H. of the policy terms and conditions (Annexure R-3). In this regard, we further find force from clause 5.17 of the policy terms and conditions (Annexure R-3), which says about the overriding effect of the policy certificate as under:-

“In case of any inconsistency in the terms and conditions in the policy vis-a-vis the information contained in the Policy Certificate, the information contained in the Policy Certificate shall prevail.”

 

                Undisputedly, there is inconsistency in between clause 2.1.1.H of the policy terms and conditions (Annexure R-3) and contents of policy certificate (Annexure C-2 Colly/R-2 Colly). As per the said Policy certificate, a sum of 29925 EURO is admissible to the insured after making a deduction of 75 EURO whereas deductions of 22666.56 EURO has been made as per clause 2.1.1.H. of the policy terms and conditions (Annexure R-3) and thus, there is drastic gap between the aforementioned policy certificate vis-a-vis clause 2.1.1.H. of the policy terms and conditions (Annexure R-3). In view of these facts, the policy certificate shall prevail over the terms and conditions of the insurance policy containing clause 2.1.1.H. In fact, the OPs No. 2 and 3 has accorded utmost importance to the policy certificate (Annexure C-2 Colly/Annexure R-2 Colly) as is evident from the perusal of forwarding letter (Annexure C-2) wherein it is clearly mentioned that in case of discrepancy in the said letter vis-a-vis the policy certificate, the details mentioned in the policy certificate shall prevail. In view of the importance given to the policy certificate (Annexure C-2 (colly)/Annexure R/2(colly)), there was no occasion for the Complainant to entertain any kind of doubt about the contents of the policy certificate (Annexure C-2 (colly)/Annexure R/2(colly)).

                In view of the aforesaid factual as well as legal discussion, we conclude that there has been lapse and deficiency on the part of the OPs No.2 & 3 who are liable to compensate the complainant jointly and severally.

11.            Coming to relief, it is found that the Complainant has filed the details of calculation on 20.12.2021 and during the course of arguments on 28.01.2022 which has been taken on record as Mark A. As per calculation the claimed amount in EURO/Rupees is as under:-

Currency	EURO	Indian Rupees
Full Amount of Claim	29925.00	2363356.80
Partly approved/Paid amount	7333.56	579175.23
Balance claimed amount	22591.44	1784181.76

 

                The OPs No.2 and 3 have calculated the amount of partly approved claim in Indian currency at the rate of Rs.78.976 per EURO as prevailing on 17.09.2019. The Complainant has also claimed the amount in Indian currency at the rate of Rs.78.976 per EURO and thus, in our opinion, the Complainant is entitled to the payment of Rs.17,84,181.76.

12.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.2 & 3:-

1. To refund the amount of Rs.17,84,181.76/- to the complainant along with interest @ 9% per annum from filing of the complaint till its realization.
2. To pay an amount of Rs.25,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/-as cost of litigation charges.

 

13.            The OPs  No.2 & 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the awarded amount vide Para No.12(i)  above shall carry an interest @ 12% from the date of this order till realization. The complainant shall also be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019, against the OPs No.2 & 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced: 10.02.2022

 

 

             (Dr.Sushma Garg)      (Dr.Pawan Kumar Saini)     (Satpal)

                 Member                    Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

 

Satpal

                                                            President