Honble Mr. Dinesh Singh, Member Heard learned counsel for the appellant insurance co. and the respondent complainant, and 1. perused the material on record. The case relates to repudiation of a claim made under an overseas mediclaim insurance policy. 2. In the interest of justice, and for adjudication of the first appeal on merit, on facts and law, the 3. self-admitted delay of 20 days in filing the instant first appeal is condoned. -1- The State Commission partly allowed the complaint vide its Order dated 10.05.2012 and held 4. deficiency in service and unfair trade practice on the part of the insurance co.: Surely, Opponent NOs. 1 and 2, in the circumstances, were guilty of deficiency in service and unfair trade practice in repudiating the claim of the complainant. We, therefore, record our finding on the point No. 1 in the negative. : Point No. (ii) under mediclaim policy for Complainant has sought reimbursement overseas treatment at ( ) Zurich CHF 98,827.90 equivalent to `46,64,677/- and `5,42,829/- for the expenses incurred to consult Doctors at Klinik Hirslanden also for going to Zurich second time which includes air because on the advice of Doctors at Zurich Dr.Chablani fare charges to and fro of Dr.Chablani was called from Mumbai, specifically, so that he could accompany Complainant for return journey to India and in fact, accompanied Complainant on her return journey to Mumbai from Zurich. . has also So her total claim is for `52,07,506/- She claimed compensation of but this we are of the view that the said . But we `3,00,000/- compensation need not be paid would like to award interest on that amount by allowing this complaint partly.The said amount shall be payable with has in interest @7% per annum though Complainant claimed terest . Besides, Complainant would be entitled to get @18% per annum `20,000/- as costs of the . In the circumstances, we are inclined to pass the following order: proceeding O R D E R (i) as Opponent No.1 . Complaint is partly allowed against Insurance Company (ii) Opponent No.1 Insurance Company is directed to pay a sum of `52,07,506/- along with the interest @ 7% per annum from date of repudiation of claim i.e. from 20.10.2010 till actual . realization (iii) is also to Opponent No.1 Insurance Company directed pay a sum of `20,000/- towards of this complaint. cost (extracts from the State Commissions Order) (emphasis supplied) For ready appreciation of the examination being made hereinafter, the following are first being 5. reproduced here: The relevant terms and conditions of the subject overseas mediclaim insurance policy taken by (i) the complainant: THE NEW INDIA ASSURANCE CO. LTD. Regd. & Head Office: New India Assurance Bldg., 87, Mahatma Gandhi Road, Fort, Mumbai 400 001 IMPORTANT SLIP (OVERSEAS MEDICLAIM POLICY) PLEASE MAKE SURE YOU READ AND FULLY UNDERSTAND THIS DOCUMENT BEFORE YOU TRAVEL FROM THE REPUBLIC OF INDIA. FAILURE TO FOLLOW INSTRUCTIONS GIVEN COULD RESULT IN REJECTION OF ANY CLAIM THAT MIGHT BE MADE. THE OVERSEAS MEDICLAIM POLICY PROVIDES INDEMNITY FOR EXPENSES , DISEASES CONTRACTED INCURRED FOR MEDICAL TREATMENT FOR ILLNESS OR INJURY SUSTAINED DURING TRAVEL AND WHICH IS NECESSARY TO BE UNDERTAKEN IMMEDIATELY WITHOUT WHICH THE INSURED IS NOT ABLE TO LEAVE THE OVERSEAS COUNTRY UNDER MEDICAL ADVICE. - - - - - Now this policy provides as follow: DEFINITIONS: The following definitions apply throughout this Insurance: - - - - - MEDICAL RELATED EXPENSES REASONABLY AND NECSSARILY INCURRED means expenses that in the opinion of the treating physician and Coris are medically necessary in order to maintain life and / or relieve immediate pain or distress for illness / disease accident first manifested / occurring during the period of insurance. - - - - - PERIOD OF INSURANCE This insurance is valid from the First Day of Insurance or date & time of departure from India, whichever is later, subject to General Condition [1 (i)] & expires on the last day of the number . of days specified in the policy schedule or on return to India whichever is earlier - - - - - GENERAL CONDITIONS APPLICABLE TO ALL SECTIONS - - - - - : This contract of insurance includes the 10. Dispute resolution clause and procedure following dispute resolution procedure which is exclusive and a material part of this Contract of Insurance. a. This policy is a . Coverage Nature of Coverage: not general health insurance policy under the Medical expenses Section of this Insurance is intended for use by the Insured Person in the , or accident sustained event of sudden and unexpected sickness illness during the policy when the insured person is outside the Republic of India. period b. This policy is to provide an indemnity in : Pre-existing Exclusions not designed respect of medical services, the of a as defined need for which arises out pre-existing condition in condition 10 (c) below: c. The pre-existing condition , : Pre-existing condition means any sickness / illness to the effective date of this Insurance including whether or not the insured which existed prior person had knowledge that symptoms were related to the sickness / illness. Complication from a pre-existing condition arising will also be considered part of that pre-existing condition . - - - - -

12. , Any claim under this policy that is fraudulent or if fraudulent means are used to secure , then payment of benefits under this policy such action shall render this policy null and void . and all claims hereunder shall be forfeited

13. under this policy . No sum payable shall carry interest - - - - -

15. which has and the amount thereof Any claim not been conclusively proven substantiated . shall not be payable GENERAL EXCLUSIONS APPLICABLE TO ALL SECTIONS

1. No claim will be paid where the Insured person: a. is travelling against the advice of a physician; or b. is or on a waiting list for declared receiving specified medical treatment in the Physicians report or certificate; or c. is ; or travelling for the purpose of obtaining treatment d. has received a terminal prognosis for a medical condition.

2. suicide, attempted suicide or wilfully self inflicted No claim will be paid arising from injury or illness, mental disorder, anxiety, stress or depression, venereal disease, , alcoholism the , or any loss arising directly or indirectly from any drunkenness or abuse of the drugs injury, illness, death, loss, expenses, or other liability attributable to HIV (Human Immunodeficiency Virus) and / or any HIV related illness including AIDS (Acquired Immune Deficiency Syndrome) and / or any mutant derivative or variation thereof however caused. SECTION A : MEDICAL EXPENSES AND REPATRIATION This policy is a general health insurance policy. under the Nature of coverage: not Coverage medical expenses section of this Insurance by the Insured Person in the is intended for use or accident arising when the Insured person is outside event of sudden and unexpected sickness the Republic of India. This insurance will pay up to the limit of cover shown in the Schedule in total for the Insured Person in respect of covered medical related expenses mentioned below, reasonably and necessarily incurred outside the Republic of India by the Insured Person suffering bodily injury, sickness, disease or death during the period of Insurance. Notwithstanding the above, if Coris recommends that continued treatment in India is appropriate, the policy is extended to coved medical expenses incurred in India as specified in covered expenses described below, provided that expenses will only be paid at the usual and customary level for such services, and further provided that expenses will only be paid for treatment incurred within the 90 days period immediately following the first manifestation of the bodily injury, sickness or disease. - - - - - (Applicable to Section A Medical expenses and repatriation) SPECIFIC CONDIITONS - - - - -

6. No claims will be paid in respect of routine physical examination or any other . examination where there is no objective indication impairment of normal health (as per the copy furnished by the complainant in c.c. no. 4 of 2011) (emphasis supplied) The medical report dated 09.05.2010 of the hospital at Zurich (ii) : 09 May 2010 Thackersey, Nina born on 04.05.1939, Mumbai, emergency treatment on 09.05.2010 Dear colleague, This is a report of the above mentioned patient, who was treated at our Emergency Centre. Diagnoses : 1) Inflammation of the gall bladder 2) Pancreatitis 3) Thrombosis of vena portae 4) Hyperglycemia Dr. med. Armin Lehmann Klinik Hirsladen Witellikerstr. 40 P.O. Box. 8032 Zurich Medical management K. in Schmitten Internal Medicine FMH J. Fox. General Medicine FMH Dr. med. F. Orellana General Medicine Surgery Klinik Herslanden Emergency Centre Emergency Secretariat Witellikerstrasse 40 8032 Zurich T 044 387 35 34 F 044 387 35 33 www.hirslanden.ch (as per the translated copy furnished by the complainant in c.c. no. 4 of 2011) (emphasis supplied) The medical report dated 11.05.2010 of the hospital at Zurich: (iii) hirslanden Kilnik Hirslanden Zurich Marriott Hotel Private z.Hd. Ms. Nina Thackersey, Neumilhlequai 42 P.O. 8035 8006 Zurich 11 May 2010 / KS D Thackersey, Nina *04.05.1939 Silverarch 131, Kolkata (India) Emergency-Treatment from 09.05.2010 Dear Colleagues, This is a report of the above mentioned patient, who was treated at our Emergency Centre. Diagnoses: Acute pancreatitis with C2 abuse Thrombosis of the right portal vein Recent case history: of at The patient reported feeling increasing pain in the upper abdomen after breakfast around in the . . 10 am morning today She did not have fever Personal medical history: Status after a right shoulder operation in 2004 Status after left shoulder operation Status after poly trauma and cranial trauma in 1974 Status after a cataract operation in 2008 Birth of 3 children Allergies / Drug intolerance: Vertiginous drugs Drugs at admission ( ): Prescribed in India Eltroxin 100 g 1-0-0 Atenolol 25 1-0-1 Telsartan 80 mg 1- 0-0 Lotensyl 10 mg 1-0-0 Milical 1-0-0 Status: , , Temperature 35.8 C, SO2 95% with 2 litres of Oxygen, GCS 15 Pain 8/10 : , Pulse: 63/ min, general condition of adipose, BP 238/100 mm Hg at the time of recording mildly reduced. Head / neck: Inconspicuous. Heart: Rhythmic, no disturbing noises. Lungs: Vesicular breathing, no rattling sounds. Abdomen: Pain in the entire abdomen. Page 2 Thackersey, Nina * 04.05.1939 , , the , no Upper abdomen especially over the pancreas entire abdomen is markedly distended drug resistance. Findings: CT and X-Ray: Findings are included. Laboratory: Findings are included. Quick Troponin shows a minimal increase of 0.04. Resting ECG Left type, sinus rhythm shows a frequency of 58/min. negative T in aVR and VI. No symptoms of acute ischemia. Assessment / Therapy / Procedures The patient was clearly hypertonic with systolic values 240 mm Hg on admission to the emergency ward on which she received 2 Stroke Nitro sublinguals. For pain, she was given 1g Novalgin i.v, and Buscopan 20 mg i.v, followed by 40 mg Pantozol i.v. For persistent hypertonic circulation ratios, she was given 5 mg Ebrantil i.v. Further, the patient was given fractionated Pethidine and was given Primperan i.v. for nausea, her evening dose of Atenolol and additionally 1 tablet Telsartan 80 for still persistent hypertension. Before shifting her to the ICU, we began with a Wurzburg pain drip with 400 mg. Novalgin, 400 mg. Tramal and 2.5 mg DHBP. She was also given before shifting, a nitro patch with 10 mg. Then on being admitted to the ICU, she was put on volume therapy under the medical care of Dr. med. A. Muller. The further developments would be reported separately. Yours truly, Julia Fox Dr. med. Armin Lehmann Lead doctor-Emergency Centre Assistant Physician Emergency Centre This is a computer generated document and needs no signature. Copy: Dr. med. Heinrich Porschak, Zurich (as per the translated copy furnished by the complainant in c.c. no. 4 of 2011) (emphasis supplied) The medical report dated 17.05.2010 of the hospital at Zurich: (iv)

17. May 2010/jb D Thackersey, Nina * 04.05.1939 CT. Thorax/ Abdomen on 17.05.2010 Dear Mr. Tresch, Please find the diagnostic finding of the above mentioned patient here. : Clinical presentation , , acute portal vein thrombosis. Now CRP increase after Alcoholic pancreatitis liver cirrhosis antibiotics-therapy. Focus on infection : Technology 2D-reconstruction : Diagnostic findings - - - In the arterial contrast mid-area with an there is a clear inhomogeneous hepatic parenchyma accent on the periphery of the left side till the spleen and a very enlarged lobe of the liver and . There is a residual segment formed in the liver segment VIII partial acute portal vein with sparse closed and partially perfused portal vein ramus in the peripheral area in thrombosis the right lobe of the liver, especially pertaining to the segment VIII. The left portal vein system and the V. Portae are open. Clear edematous changes on the level of the head of the pancreas . and the pancreas body and a few also on the pancreatic tail Marked peripancreatitis . circumfluent free fluid and adipose tissue imbibing Some fluid also in the gall bladder channel . - - - - - . - - - - - Uterus is filled with fluid Evaluation In on 09.05.10, further . Partial comparison to the previous CT scan hepatomegaly can be seen recanalized right-sided portal vein channel with more clear diagnostic findings on the peripheric area accentuate acute portal vein thrombosis especially in the liver segment VIII. Progressive edematous changes of the pancreatic parenchyma with progressive peripancreatic fluid DD which starts pseudo cystic formations. Sparse inflammatory stressed peripancreatic lymph node. Some free fluid outbound in the middle stomach and in the pelvis. - - - - - Regards Dr. med Markus Burge This document is signed electronically and does not need a separate signature. Original: Dr. med. Sabine Heyder, Zurich Dr. med. Andreas Muller, Zurich Bettenstation Sud Ebene 1 Copy: (as per the translated copy furnished by the complainant in c.c. no. 4 of 2011) (emphasis supplied) The extracts from the medical report dated 31.05.2010 of the hospital at Zurich: (v) hirslanden Klinik Hirslanden Dr. med. Henry Perschak FMH Specialist in Internal medicine Witellikerstrasse 40 CH 8032 Zurich Zurich, 31.05.2010/pbe Diabetological Supervision , on , Silverarch 131, 400006 Mumbai Thackersey Nina born 04.05.1939 Dear Colleague, I would like to inform you about the above mentioned who was our patient under diabetological . co-supervision from 20.05.2010 to 28.05.2010 Diagnoses:

1. Idiopathic acute pancreatitis with - Partial portal vein thrombosis

2. Hypertension

3. Diabetes mellitus Type 2 : Present condition Consultation is by diabetological supervision. , Pre-existing Diabetes mellitus Type 2 recorded hitherto under dietary therapy alone. the . The On admission HbA1c was found to be 6.8% . The blood sugar on admission was found to be higher than the normal range patient was given with Nutriflex, as a part of the intensive medical care. parenteral nutrition In the intensive care unit the blood sugar was held constant by using Actrapid Perfusor with a dosage of 2 to 4 units . The i.v. per hour blood sugar readings are found to be significantly higher in the normal care . Accordingly, I have put the patient on a unit combination of Actrapid and 6 units of basal . Levemir at night - - - - - (as per the translated copy furnished by the complainant in c.c. no. 4 of 2011) (emphasis supplied) The letter dated 01.06.2010 of one Dr. Stefano Tresch of the hospital at Zurich: (vi) hirslanden Klinik Hirslanden Mrs. Nina Thackersey Silverarch 131 IND Mumbai To whom it may concern 1th of June 2010 Frau Thackersey Nina, 04.05.1939, Silverarch 131, 400006 Mumbai Abteilung fr Allgemeine Innere Medizin Klinik Hirslanden Dr. med. Henry Perschak Facharzt FMH fr innere Medizin Dr. med Stefano Tresch Facharzt FMH fr Innere Medizin Dr. med. Sabine Heyder Facharztin FMH fr Innere Medizin Dr. med. Nicole Lambrinoudakis Facharztin FMH fr Innere Medizin Dr. med. Anja Rrig Facharztin FMH for Inner Medizin Witellikwerstrasse 40 CH-8032 Zurich T+41(0)44 387 20 60 T+41(0)44 387 20 69 Because of acute serious illness she suffered from and had to be in hospital, we recommend her to be accompanied by a medical doctor . while travelling back home again Sincerely and with kind regards Klinik Hirslanden Sd/- Stefano Tresch, MD Specialist FMH Internal Medicine aim.hirslanden@hirslanden.ch (as per the copy furnished by the insurance co.) (emphasis supplied) The receipt dated 18.06.2010 of one Dr. Hari Chhablani of Mumbai: (vii) Dr. Hari Chhablani M.B.B.S. F.C.C.P. (RESP MEDICINE). INTENSIVIST BHATIA HOSPITAL with thanks a sum of ( ) Received Rs 50,000/- Rupees fifty thousand only from Mrs Nina S vide chq No 227284 dtd. 17/6/10 drawn on Bank of Baroda Personal banking Fort Thackersey branch towards my fees to come to Zurich to accompany Mrs. Nina Thackersey from 30/5/10 . to 2/6/10 to Mumbai 18 JUN 2010 Sd/- Dr. Hari CHHABLANI MBBS FCCP REGD NO Unreadable (as per the copy furnished by the complainant in c.c. no. 4 of 2011) (emphasis supplied) The opinion of Dr. P.R. Purandare dated 28.09.2010, the doctor of the insurance co.: (viii) DR. P.R. PURANDARE M.S. (Bom.), FIAGES, PGDHA Ramdas Bhuvan, Dadasaheb Rege Marg, Shivaji Park, Dadar Mumbai 400 028 Tel: 2054 0318 Mobile : 98211 34333 email: drpurandare@sify.com Date : September 28,2010 To, The Claims Manger, Heritage Health Services Pvt. Ltd. Dear Sir, Many thanks for referring for opinion papers regarding the claim of Mrs. Nina Thackersey under Po. No. 25/E-1/2/111800/CFT/00001558 (Ref. no. ZKUJ-2-00556) NIAC : Observations

1. . 71 years old lady

2. personal accident, head injury, right elbow Policy Schedule Exclusions fracture, cataract, , . HTN hypothyroid

3. Head injury right elbow fracture, cataract; Proposal Form PMH by insured Dr. S.A. Golwalas notes head injury, right elbow fracture, hypothyroid, HTN

4. : Discharge Summary Diagnosis acute pancreatitis with partial thrombosis of ; Ulcera colon ascendans (5x5 cm), ; abdominal pain since 9/5/2010. portal vein DM

5. , CT scan report dt. 17/5/2010 clinical alcoholic pancreatitis liver . cirrhosis : Opinion . Hence the Claim is for alcohol induced acute pancreatitis and liver cirrhosis claim cannot . be allowed Sd/- DR. P.R. PURANDARE (as per the copy furnished by the complainant in c.c. no. 4 of 2011) (emphasis supplied) The repudiation letter dated 20.10.2010 of the insurance co.: (ix) HERITAGE HEALTH TPA PVT LTD. 1102, Raheja Chambers, Free Press Journal Road, Nariman Point, Mumbai 400021 Tel: +91 22 66547965 Fax: +91 22 6654 6812 Email: heritagehealth@vsnl.net Date: 20.10.10 To Mrs. Nina Tahackersey, 131, Silver Arch 60, L. Jagmohandas Marg Greater Mumbai-40006 Ph-23641645 Madam, : : SUB Reference to your claim under the below mentioned Overseas Mediclaim Policy Policy Number : 111800/34/10/45/00001558 Policy Period : 26/04/2010 to 25/04/2011 Date of Incidence : 06/05/2010 Ref. No. : ZKVJ-2-00566 Claim Amount : CHF 218960 (N.B.: correct figure is CHF 98,101.70) From the documents you submitted, we learn that you suffered the following complaints during your trip abroad. PRESENTING COMPLAINT ABDOMINAL PAIN DIAGNOSIS , ALCOHOLIC PANCREATITIS LIVER CHIRROSIS PAST MEDICAL HISTORY PERSONAL ACCIDENT, HEAD INJURY, ELBOW FRACTURE, CATARACT POLICY EXCLUSION PREEXISTING DISEASE AND RELATED AILMENT Kindly note that, The policy carries specific exclusion of all medical expenses incurred directly due to alcoholism . Our medical panel is of the opinion that you have been treated for alcoholic pancreatitis . and liver cirrhosis Alcohol and alcohol induced ailments are excluded from policy cover . so this case is not payable Hence, based on these documents, and the opinion of our medical panel, we shall not consider , your claim admissible for the reasons they are directly related to alcoholism excluded from . the scope of policy coverage We regret our inability to assist you in this matter. However we shall welcome your views on the same on the basis of any fresh documents. Thanking you, Yours truly, Sd/- Authorized Signatory (as per the copy furnished by the insurance co.) (emphasis supplied) The letter dated 04.11.2010 of one Dr. Henry Perschak of the hospital at Zurich: (x) hirslanden Klinik Hirslanden Frau NinaThackersey Silverarch 131 IND* Mumbai

4. November 2010/jo To Whom It May Concern Thackersey Nina, 04.05.1939, Silverarch 131, 400006 Mumbai The above mentioned was patient hospitalized at Clinic Hirslanden for the following diagnoses: from 09.05.10 28.05.10 Acute idiopathic pancreatitis partial thrombosis of the V. portae Ulcer of the colon ascendens (5x5 cm) Type 2 diabetes Abteilung fr Allgemeine Innere Medizin Klinik Hirslanden Dr. med. Henry Perschak Facharzt FMH fr innere Medizin Dr. med Stefano Tresch Facharzt FMH fr Innere Medizin Dr. med. Sabine Heyder Facharztin FMH fr Innere Medizin Dr. med. Nicole Lambrinoudakis Facharztin FMH fr Innere Medizin Dr. med. Anja Rrig Facharztin FMH for Inner Medizin Witellikwerstrasse 40 CH-8032 Zurich In a letter dating 20.10.10 . Heritage Health TPA Pvt. Ltd has declined the basically that : to cover hospital charges on the grounds - The and has pancreatitis is of alcoholic origin - liver cirrhosis , the report of the Indeed emergency unit mentions alcohol . However, consumption as cause of pancreatitis in the light of the case , evolution and especially under close scrutiny of the initial lab results . this assessment is completely false In the course of further diagnosis , we were able to exclude both common causes of pancreatitis namely . Our final diagnosis is still: biliary and alcoholic - Idiopathic pancreatitis As further evidence excluding alcohol disease, please refer to the initial lab test 8063 of the 09.05.10 indicating an MCV of 89.0, which lies in the lower half of the reference range (see attachment). The that this claim of the insurance company patient suffered from . There is no evidence liver cirrhosis is completely out of the blue whatsoever in our records or the case history, that liver cirrhosis was present. Furthermore, follow up examination completed in September 2010 and today document a completely normal liver function. that the I therefore conclude denial of coverage of the charges is based , on false judgement insufficient medical knowledge and not existing . data Sincerely and with kind regards Sd/- Henry Perschak, MD Specialist FMH in Internal Medicine T+41(0)44 387 20 60 T+41(0)44 387 20 69 aim.hirslanden@hirslanden.ch Chief of Department of General Internal Medicine Hirslanden Clinic Attachments: - Lab results (as per the copy furnished by the complainant in c.c. no. 4 of 2011) (emphasis supplied) The claim made by the complainant in her complaint before the State Commission and the 6. award made by the State Commission are given in the table below: S. No. Claim of the complainant in her complaint before the State Commission Award made by the State Commission re each item Items In CHF* In INR** 1. Claim under Overseas Mediclaim Policy ( Worldwide Corporate Frequent Travellers ) submitted to the insurance co. (i) Urgent medical support required on 09.05.2010 CHF 280 @ Allowed (ii) Expenses for treatment at the hospital at Zurich for the period from 09.05.2010 till 28.05.2010 CHF 94,965 Allowed (iii) Expenses for consultation and final examination on 01.06.2010 CHF 349.80 Allowed (iv) Medicines CHF 299.65 Allowed (v) Hotel bill at Zurich for 5 days after hospitalization CHF 1775 # Allowed (vi) Hotel bill at Zurich for 4 days for one Dr. Hari Chhablani of Mumbai CHF 441.80 Allowed (vii) Airfare for travel of the said one Dr. Hari Chhablani Mumbai-Zurich-Mumbai (Executive Class) Rs. 1,68,519/- ^ Allowed (viii) Professional fee of the said one Dr. Hari Chhablani Rs. 50,000/- Allowed I . Total of to : 1. (i) 1. (viii) Claim made under the Overseas Mediclaim Policy (Worldwide Corporate Frequent Travellers) = Rs. 48,48,919/- [CHF 98,101.70 (equivalent to Rs. 46,30,400/-) + Rs. 2,18,519/-] CHF 98,101.70 Rs. 2,18,519/- Allowed II . Expenses incurred during second-time subsequent further check-up / examination not submitted to the insurance co. Allowed Expenses for travelling Mumbai-Zurich-Mumbai (Executive Class) and medical expenses at the hospital at Zurich on 04.11.2010 = Rs. 3,58,587/- [CHF 726.20 (equivalent to Rs. 34,277/-) + Rs. 3,24,310/-] CHF 726.20 Rs. 3,24,310/- A. Grand Total ( + ) = Rs. I II 52,07,506/- CHF 98,827.90 Rs. 5,42,829/- Allowed along with interest (@ 7% p.a.) from the date of repudiation of claim i.e. from [CHF 98,827.90 (equivalent to Rs. 46,64,677/-) + Rs. 5,42,829/-] together with interest (@ 18% p.a.)

20.10.2010 till actual realization. B. Compensation - Rs. 3,00,000/- Not allowed C. Cost of litigation (c) the Opponents be ordered and directed to pay the cost of the present complaint to the Complainant. [para 48 (c) of the complaint filed before the State Commission] Rs. 20,000/- 2. Total claim ( + + ) = Rs. 55,07,506/- A B C [CHF 98,827.90 (equivalent to Rs. 46,64,677/-) + Rs. 5,42,829/-] + interest (18% p.a.) + Rs. 3,00,000/- Compensation + Cost of litigation Rs. 52,07,506/- along with interest (@ 7% p.a.) from the date of repudiation of claim i.e. from

20.10.2010 till actual realization plus Cost of litigation Rs. 20,000/-. Compensation was not allowed. CHF stands for Swiss Franc * INR stands for Indian Rupee ** As per affidavit of the complainant (Nina Sudhir Thackersey) in c.c. no. 4 of 2011 the said CHF 280 @ is for

Charges of Dr. Gals visit to Hotel for urgent Medical support required on 9 May 2010

/

Bill of CHF 280 for charges of Dr. Gal for urgent medical visit to Hotel on 9 May 2010

(paras 2 and 3 (i) of the said affidavit of the complainant). As per affidavit of the complainant (Nina Sudhir Thackersey) in c.c. no. 4 of 2011 the said CHF # 1775 is for the Hotel bill for 5 days after hospitalization for the period from 28.05.2010 to

01.06.2010. The claim is for reimbursement of Accommodation + City Tax (350 + 5 = total CHF 355 per day). As per the ELECTRONIC TICKET PASSENGER ITINERARY RECEIPT dated 29.05.2010 of ^ the one Dr. Hari Chhablani the total airfare is Rs. 1,53,957/-. The difference of Rs. 14,562 [1,68,519 (-) 1,53,957] is unclear, and has not been explained by the complainant. : No additional / supplementary / separate claim as per the due and prescribed procedure was Note made in respect of II . Expenses incurred during second-time subsequent further check-up / by the complainant to the insurance co. It was directly included in the complaint filed examination before the State Commission. That is to say, the insurance co. got no opportunity to examine the said additional / supplementary / separate claim as per its due and prescribed procedure. The chronology is as below: 7. Date of purchase of overseas mediclaim policy (Worldwide Corporate Frequent Travellers), premium paid and cover: 26.04.2010 (valid from

26.04.2010 to 25.04.2011) Rs. 13,534/- US $ 1,00,000 (for Illness and Treatment for Accident) Date of travel to Zurich: 27.04.2010 Date of hospitalisation and admission into emergency center:

09.05.2010 10.05.2010 Date of discharge from the hospital at Zurich: 28.05.2010 Period of stay in Zurich Marriott Hotel for consultation and final examination on 01.06.2010: From 28.05.2010 to 02.06.2010 (5 days) Date of booking of airlines ticket of one Dr. Hari Chhablani from Mumbai-Zurich-Mumbai (Executive Class): 29.05.2010 Return journey 02.06.2010 Date of arrival of one Dr. Hari Chhablani at Zurich: 30.05.2010 Date of letter recommending that the complainant be accompanied by a doctor while travelling back: 01.06.2010 Date of return to Mumbai accompanied with husband, daughter and one Dr. Hari Chhablani of Mumbai: 02.06.2010 Rs. 48,48,919/- [CHF 98,101.70 (equivalent to Date and amount of claim submitted by the complainant to the insurance co.:

30.06.2010 Rs. 46,30,400/-) + Rs. 2,18,519/-] Date of repudiation of claim by the insurance co.: 20.10.2010 Date of second-time visit for subsequent further check-up / examination: 28.10.2010 Date of letter of one Dr. Henry Perschak of the hospital at Zurich: 04.11.2010 Date of return and expenses incurred during second-time visit for subsequent further check-up / examination: 07.11.2010 Rs. 3,58,587/- [CHF 726.20 (equivalent to Rs. 34,277/-) + Rs. 3,24,310/-] Date of complainants letter informing the insurance co. that it is liable to reimburse travelling expenses and fee for second-time visit for subsequent further check-up / examination, in addition to the earlier claim: 01.12.2010 Date of filing of complaint with the State Commission (c.c. no. 4 of 2011) and total amount claimed by the complainant in her compliant before the State Commission: 05.01.2011 Rs.55,07,506/- [CHF 98,827.90 (equivalent to Rs. 46,64,677/-) + Rs. 5,42,829/-] + interest (18% p.a.) + Rs. 3,00,000/- compensation + Cost of litigation Date of Order of the State Commission: 10.05.2012 Date of filing first appeal by the insurance co. before this Commission (f.a. no. 529 of 2012): 23.08.2012 Date of arguments before this Commission: 23.01.2019 Learned counsel Dr. Sushil Kr. Gupta, Advocate argued for the insurance co. 8. Learned counsel Mr. Satvik Varma, Advocate argued for the complainant. The complainant took an overseas mediclaim insurance policy, a worldwide corporate frequent 9. travellers mediclaim policy, for the period 26.04.2010 to 25.04.2011, i.e. for one year. At the time of taking the subject policy (in 2010), the complainant was about 71 years old. The subject policy shows that she disclosed that she was a known case of hypothyroidism and high blood pressure. The medical record of the hospital at Zurich shows that the complainant was a known case of type also II diabetes with HbA1c = 6.8%. As per the medical standard patients with HbA1c levels 6.5% are diabetics. She was admitted with high blood glucose levels and was immediately managed with intravenous insulin in the hospital at Zurich. That the complainant was a diabetic was disclosed to the insurance co. not This is intentional non-disclosure and suppression of material information (in respect of being diabetic) prior to the taking of the subject policy. The policy was for one year, from 26.04.2010 to 25.04.2011. 10. No evidence or affirmation or submission whatsoever has been professed in respect of the complainant: [a] being a worldwide corporate frequent traveller prior to 26.04.2010 or [b] undertaking any other overseas journey in the one-year period from 26.04.2010 to 25.04.2011 (except the second-time visit for further check-up / examination in the hospital at Zurich) or [c] undertaking any other overseas journey subsequent to 25.04.2011. It is, thus, evident that the subject policy, a worldwide corporate frequent travellers mediclaim policy for one year, was taken as a one-time measure. Overseas mediclaim policy (worldwide corporate frequent travellers mediclaim policy) is a 11. plan specially designed for frequent corporate travellers. The complainant paid an amount of Rs. 13,534/- as premium for this policy, taken as a one-time measure, to obtain cover upto US $ 1,00,000 for Illness and Treatment for Accident. The complainant left for Zurich on 27.04.2010, the very next day after taking the overseas 12. mediclaim policy on 26.04.2010. She reached Zurich on 27.04.2010. It is not on record as to where she stayed in Zurich from 27.04.2010 to 07.05.2010 i.e. for 11 days. She checked into one Zurich Marriott Hotel on 08.05.2010. The hotel, Zurich Marriott Hotel, describes itself as

From the stunning views of Lake Zurich to 13. the brilliant decor, Zurich Marriott Hotel invites you to experience Switzerland in style. Nestled along the banks of the Limmat River, our downtown hotel offers paramount access to iconic destinations. Stroll though the cobblestone streets of Old Town and admire medieval architecture on your way to upscale shopping at Bahnhofstrasse or swimming at Lake Zurich. After a thrilling day of sightseeing, indulge in traditional Swiss cuisine or explore exotic Thai dishes at our on-site restaurants. Unwind at our New York-inspired bar featuring rare whiskies and a smokers lounge with premium cigars before retiring to our spacious accommodations with contemporary decor, complimentary high-speed Wi-Fi and flat-panel TVs. The floor-to-ceiling windows, custom catering menus and AV equipment in our 12 event venues will set the scene for an innovative business conference. Whatever brings you to Switzerland, treat yourself right at Zurich Marriott Hotel.

on its website (information available in the https://www.marriott.com/hotels/travel/zrhdt-zurich-marriott-hotel/ public domain). The said hotel is a highly rated five star luxury hotel. A bill dated 01.06.2010 of Zurich Marriott Hotel, in the name of one Sudhir Thackersey (husband of the complainant), for room no. 3801 of Zurich Marriott Hotel, contains the following in its inter alia Description: Paid Out Massage dated 29.05.2010 (CHF 165) Bar & Lounge 42 Dinner Food 7.6% dated 30.05.2010 (CHF 32) Bar & Lounge 42 Beverage 7.6% dated 30.05.2010 (CHF 21) Bar Paid Out dated 30.05.2010 (CHF 3) Bar & Lounge 42 Dinner Food 7.6% dated 31.05.2010 (CHF 37) Roomservice Dinner Food 7.6% dated 28.05.2010 (CHF 34.50) Roomservice Lunch Food 7.6% dated 29.05.2010 (CHF 18.50) Roomservice Dinner Food 7.6% dated 29.05.2010 (CHF 20.00) Room Service paid Out dated 29.05.2010 (CHF 5.00) Roomservice Dinner Food 7.6% dated 31.05.2010 (CHF 14.00) (These have not been included by the complainant in her complaint, and were over and above the Accommodation 3.6% and the City Tax 7.6% (350 + 5 = CHF 355 per day; 355 x 5 days = CHF

1775) claimed by the complainant.) Single-occupancy room was not taken by the complainant. The said CHF 355 per day is the price for the hotel room for two persons occupying the room, that is to say, the complainant (Nina Sudhir Thackersey) and her husband (although it may be possible that the hotel room rate was the same whether one or whether two people stayed in the room). The said bill dated 01.06.2010 mentions Arrival: 08.05.2010 and Departure: 02.06.2010. At around 10.00 a.m. on 09.05.2010, the very next morning after checking into the said Zurich 14. Marriott Hotel on 08.05.2010, she reported feeling increasing pain in the upper abdomen. She did not have fever.. The travelling distance by car between the hotel, Zurich Marriott Hotel, and the hospital, Klinik 15. Hirslanden, is about 15 minutes as per Google Maps (information available in the public domain). The urgent medical support that caused a doctor, one Dr. Gal, to visit her in her hotel took 16. place on 09.05.2010, 13 days after reaching Zurich and the very next morning after checking into the said highly rated five star luxury hotel that was about 15 minutes driving distance by car from the hospital. The Arrival in the said hotel is 1 day prior to the need for the urgent medical support, which arose on 09.05.2010 (morning), and is 12 days after arrival at Zurich on 27.04.2010. She was admitted in the hospital, Klinik Hirslanden, on 09.05.2010 itself. And was shifted to its 17. emergency center on 10.05.2010. SWIXMED, an independent Swiss company which arranges medical treatment for international 18. patients in Swiss hospitals, lists this hospital under Excellent Swiss Clinics for medical treatment in Switzerland and describes it as a leading private hospital at Zurich, known for its innovative and exclusive medical services and setting new standards in the medical field, within particular emphasis on discreet and private atmosphere with a sophisticated ambience to the patients on its website (information available in the https://www.swixmed.com/fileadmin/pdf/SWIXMED_Brochure_En.pdf public domain). And the hospital, Klinik Hirslanden, describes itself as

The Klinik Hirslanden is a modern private clinic in Zurich, which belongs to Hirslanden, the leading private clinic group in Switzerland. The modern infrastructure and the high standards of our medical staff and their colleagues are the foundation of the the emphasis and philosophy on the well-being of our patients.

on its website (information available in the public https://www.hirslanden.ch/en/klinik-hirslanden/home.html domain). and mentions that

HEALTH INSURANCE If you have supplementary health insurance, you can look forward to the highest medical standards and premium hotel-style service at Klinik Hirslanden. Here is an overview of our hospital services for patients with private or semi-private insurance. Under each service you can find answers to questions about which costs are covered by your health insurance company.

on its website https://www.hirslanden.ch/en/klinik-hirslanden/health-insurance.html (information available in the public domain). She was admitted in the hospital at Zurich on 09.05.2010, the day the need for the urgent 19. medical support arose on 09.05.2010. She was discharged on 28.05.2010, after 19 days of hospitalisation. She thereafter stayed in the same highly rated five star luxury hotel (Zurich Marriott Hotel), 20. from 28.05.2010 to 02.06.2010 (5 days) [after the said hospitalisation from 09.05.2010 to 28.05.2010 (19 days)], for consultation and final examination on 01.06.2010. One Dr. Hari Chhablani of Mumbai travelled from Mumbai to Zurich and back to Mumbai, to 21. accompany the complainant from Zurich to Mumbai. He booked his ticket from Mumbai to Zurich and back to Mumbai on 29.05.2010, departing from Mumbai on 29.05.2010 and returning from Zurich on 02.06.2010. That is to say, the said one Dr. Hari Chhablani of Mumbai booked his to and fro ticket on 29.05.2010 wherein the return was already determined to be on 02.06.2010. He reached Zurich on 30.05.2010. He stayed in Zurich from 30.05.2010 to 02.06.2010 (4 days), and accompanied the complainant from Zurich to Mumbai, departing Zurich on 02.06.2010. His air travel expenses (executive class), hotel (boarding and lodging) expenses and professional fee were included in the claim. One Dr. Stefano Treschs letter dated 01.06.2010 addressed to the complainant Nina Sudhir 22. Thackersey with written in the beginning recommends that

Because To whom it may concern of acute serious illness she suffered from and had to be in hospital, we recommend her to be accompanied by a medical doctor while travelling back home again.

. This letter of 01.06.2010 is to the one Dr. Hari Chhablani booking his ticket from Mumbai subsequent to Zurich and back to Mumbai on 29.05.2010, and to his reaching Zurich on 30.05.2010. It subsequent is part of any medical discharge summary or prescription etc. It is a separate , not stand-alone letter given to the complainant Nina Sudhir Thackersey on 01.06.2010, the day before her departure (accompanied with the said one Dr. Hari Chhablani) from Zurich to Mumbai on 02.06.2010. The complainant was discharged on 28.05.2010. The discharge summary is dated 28.05.2010. 23. She stayed in the hotel (after the hospitalisation) from 28.05.2010 to 02.06.2010, for averred consultation and final examination on 01.06.2010. In the consultation and final examination on 01.06.2010 she obtained the above-mentioned letter dated 01.06.2010 from the said one Dr. Stefano Tresch. No other medical report, advice etc. dated 01.06.2010, or, for that matter, between 28.05.2010 to 01.06.2010, is available on record. A medicine bill dated 31.05.2010 is available on record. Its translated copy has not been furnished. Google translation (information available in the public domain) however shows that this medicine bill is for almond oil and blood glucose test strip. There is nothing on record to show that the complainant: 24. [a] took any fit to fly certificate and produced it before the airlines bonafide or [b] produced the letter dated 01.06.2010 from the one Dr. Stefano Tresch recommending her

to be accompanied by a medical doctor while travelling back home again

before the airlines or [c] requested for or took any special assistance at the airport or from the airlines while travelling back to Mumbai on 02.06.2010 or [d] informed the airlines that she is accompanied by an Intensivist, the one Dr. Hari Chhablani, in her travel from Zurich to Mumbai

Because of acute serious illness she suffered from and had to be in hospital

. The absurdity and fraud in obtaining the said dated 01.06.2010 from the said 25. stand-alone letter one Dr. Stefano Tresch through during the consultation and final examination personal interaction on 01.06.2010 is well evident, ex facie. She claimed Rs. 48,48,919/- [CHF 98,101.70 (equivalent to Rs. 46,30,400/-) + Rs. 2,18,519/-] in 26. respect of: [a] urgent medical support of one Dr. Gal at hotel on 09.05.2010; [b] hospitalisation from 09.05.2010 to 28.05.2010 (19 days); [c] medicines; [d] subsequent stay in a highly rated five star luxury hotel from 28.05.2010 to 02.06.2010 (5 days) for consultation and final examination on 01.06.2010 and [e] travel expenses from Mumbai to Zurich and back (executive class) and hotel bills at Zurich from

30.05.2010 to 02.06.2010 (4 days) and professional fee of the one Dr. Hari Chhablani of Mumbai. This claim was submitted to the insurance co. 27. It was repudiated by the insurance co., for reasons recorded: The policy carries specific exclusion of all medical expenses incurred directly due to alcoholism. Our medical panel is of the opinion that you have been treated for alcoholic pancreatitis and liver cirrhosis. Alcohol and alcohol induced ailments are excluded from policy cover so this case is not payable. Hence, based on these documents, and the opinion of our medical panel, we shall not consider your claim admissible for the reasons they are directly related to alcoholism, excluded from the scope of policy coverage. (extracts from the repudiation letter dated 20.10.2010 of the insurance co.) A second-time visit for further check-up / examination was made between 28.10.2010 and 28.

07.11.2010 (10 days), which was 4 months 3 weeks and 5 days (148 days) of returning from Zurich (on 02.06.2010). The bill from the hospital is for the date 04.11.2010 i.e. for one days further check-up / examination. She included the expenses of the said second-time travel and further check-up / examination in her complaint before the State Commission, claiming an additional amount of Rs. 3,58,587/- [CHF 726.20 (equivalent to Rs. 34,277/-) + Rs. 3,24,310/-] with respect to the said second-time travel and further check-up / examination. She wrote a letter dated 01.12.2010 to the insurance co. that it was liable to reimburse travelling 29. expenses and fee for the second-time further check-up / examination in addition to the earlier claim. This additional / supplementary / separate claim was not submitted to the insurance co. It was directly included in the complaint filed before the State Commission. The insurance co. got no opportunity to examine the said additional / supplementary / separate claim as per its due and prescribed rules and procedures. In her complaint the complainant (Nina Sudhir Thackersey) has also averred (in paras 21 and 25) 30. that she travelled to Zurich again on 28.10.2010 with her husband (Sudhir Thackersey) to collect evidence for rebuttal of her claim [

- - - for further check up and to seek their comments on letter dated 20 October 2010 of the Opponent No. 2. - - -

(para 21) and

- - - The Complainant submits that to rebut the reasons for rejection of her claim, the Complainant had to travel to Zurich from 28 October 2010 to 7 November 2010 alongwith her husband and had to undergo a further examination by Dr. Muller at Hirslanden Clinic on 4 November 2010.- - -

(para 25)]. She used this occasion to get a letter dated 04.11.2010, i.e. on the date of the bill from the hospital for further check-up / examination, from one Dr. Henry Perschak of the hospital at Zurich, which is in effect a commentary on the insurance co.s repudiation of the claim made in respect of the earlier hospitalisation between 09.05.2010 to 28.05.2010. That is to say, she used this occasion to counter the insurance co.s repudiation of her earlier claim. Insurance claim cannot be made for a second-time travel and further check-up / examination 31. in the overseas hospital at Zurich. Such contention of the complainant is, , absurd, an anyhow ex facie attempt at fraud. The subject policy does not allow a second-time travel and further check-up / examination. The complainants argument that the said second-time travel for further check-up / 32. examination was in addition for obtaining rebuttal from the one doctor, Dr. Henry Perschak, is also, , absurd, an anyhow attempt to explain the attempted fraud. An insurance claim cannot be ex facie made to include expeditions for collecting rebuttal / s. The total claim made in the complaint before the State Commission was for Rs. 55,07,506/- 33. [CHF 98,827.90 (equivalent to Rs. 46,64,677/-) + Rs. 5,42,829/-] + interest (18% p.a.) + Rs. 3,00,000/- compensation + cost of litigation. The insurance co. repudiated the claim filed before it (para above) on ground of

specific 34. 26 exclusion of all expenses incurred directly due to alcoholism

. This is in accordance with its relevant and applicable terms and conditions [

- - - No claim will be paid arising from suicide, attempted suicide or wilfully self inflicted injury or illness, mental disorder, anxiety, stress or depression, venereal disease, , the - - -

alcoholism drunkenness or abuse of the drugs (clause 2 of the General Exclusions Applicable to All Sections)]. The repudiation was based on an opinion dated 28.09.2010 of the insurance co.s doctor, Dr. P. R. Purandare (

Claim is for alcohol induced acute pancreatitis and liver cirrhosis. Hence the claim cannot be allowed.

). The medical report dated 11.05.2010 of the complainant (Nina Sudhir Thackersey) at the time of 35. hospitalisation in the hospital at Zurich categorically mentions the diagnosis as Acute pancreatitis with C2 abuse. C2 abuse is a polite term used in medical reports for alcohol abuse. This inter alia has been written as the diagnosis by two doctors, the lead doctor emergency centre (Dr. Julia Fox) and the assistant physician emergency centre (Dr. med. Armin Lehmann). The medical report dated 17.05.2010 of the complainant (Nina Sudhir Thackersey) during hospitalisation in the hospital at Zurich categorically mentions the clinical presentation as Alcoholic pancreatitis, liver cirrhosis. This has been written by a third doctor (Dr. med. Markus Burge) in the hospital at Zurich. In this reference paras 31, 32 and 33 of the complaint are relevant, which read as below: 36.

31. The Complainant submits that the general exclusions under the terms of the policy . The provided that no claim will be paid arising from alcoholism and drunkenness Complainant states that even this term alcoholism has been incorrectly understood and . The interpreted by the Opponents and wrongly applied in the Complainants case Complainant submits that there is difference between Alcoholism and having alcohol . The various articles and research done in this regard and generally socially and occasionally published for the awareness of common public, states that drinking alcohol, if moderately . However, done, poses a good effect on the body there is a difference between alcoholism and . drinking When drinking alcohol exceeds the moderate level, the person is on his way to . alcoholism

32. The Complainant submits that the Alcoholism is a term associated with many health . Medical science considers alcoholism as a problems and the negative social consequences disease that is characterized by persistent and excessive intake of alcohol. It is considered as a mental problem that is very much connected to addiction. Accordingly, alcoholic people start being addicted to alcohol and when at certain point of time, experience anxiety, stress and . insecurity, they tend to take alcohol to temporarily forget their undesirable feelings There are . many differences between alcoholism and social drinking People who drink alcohol . socially / at parties do not experience craving unlike those who are alcoholic Alcoholics . cannot stand a day without drinking alcohol because they have the urge to drink everyday A . social drinker knows his tolerance for alcohol When he starts to feel tipsy and drunk, he stops . . Alcoholic people however lose sense of control An alcoholic person often has a terrible . hangover after drinking too much alcohol Alcoholics experience stomach ache, over sweating . and nervousness A person who drinks too much and has a problem with alcoholism no longer . cares about other activities and always feel the need for drinking

33. It is pertinent to note that the terms of policy excludes the claims arising from alcoholism and it does not state anywhere that even cases of occasional consumption of . It is not the case of the Opponents that the alcohol socially / at parties would also be excluded Complainant was an alcoholic. (emphasis supplied) The above is a totally misplaced and erroneous interpretation of the policy clause that no claim will be paid arising from alcoholism or drunkenness. The context in which the term has been used by the insurance co. in its exclusion clause does not mean that the person has necessarily to act drunk or crave for alcohol or have a hangover etc. as written by the complainant. The complainants treatise on alcoholism vs. social drinking etc. is totally out-of-place and misdirected in the context of the specific policy term. The doctor who made the urgent medical support to the hotel on 09.05.2010 was one Dr. Gal. 37. The doctors who wrote Acute pancreatitis with C2 abuse on 11.05.2010 were one Dr. Julia Fox (lead doctor emergency center) and one Dr. med. Armin Lehmann (assistant physician emergency center). Their report was written immediately on hospitalisation and on being shifted to its emergency center. The doctor who wrote Alcoholic pancreatitis, liver cirrhosis was one Dr. med. Markus Burge of the hospital at Zurich. His report was written during hospitalisation. The insurance co.s doctor, Dr. P. R. Purandare, is M.S. (Master of Surgery), FIAGES (Fellow 38. of Indian Association of Gastrointestinal Endo-Surgeons), PGDHA (Post Graduate Diploma in Hospital Administration). His medical opinion was evidently made on an objective assessment of the entire medical record before him including the said medical report dated 11.05.2010 and the medical report dated 17.05.2010. He can in no manner be taken as a doctor who was under-qualified or mis-qualified to give opinion in such case. The clarificatory letter dated 04.11.2010 from the one Dr. Henry Perschak, obtained in the 39. second-time visit for further check-up / examination, which in effect is a commentary on the insurance co.s repudiation, is not from the said Dr. Julia Fox or Dr. med. Armin Lehmann, or from the said Dr. med. Markus Burge, but from another doctor (the said one Dr. Henry Perschak). It was obtained through by the complainant with the doctor (Dr. Henry Perschak). personal interaction And it was obtained the insurance co. repudiated the claim (on 20.10.2010), and 5 months 3 after after weeks and 3 days (177 days) of the report dated 11.05.2010 which categorically and explicitly states Acute pancreatitis with C2 abuse, and 5 months 2 weeks and 4 days (171 days) of the report after dated 17.05.2010 which categorically and explicitly states Alcoholic pancreatitis, liver cirrhosis. Phrases like false judgement and insufficient medical knowledge have been used in the letter dated

04.11.2010 of Dr. Henry Perschak. It is seen that Dr. P. R. Purandare of the insurance co., who made his opinion on the basis of the entire medical record before him including the medical report dated 11.05.2010 and the medical report dated 17.05.2010, was in no manner under-qualified or mis-qualified to make his opinion. It is also seen that there is nothing on record that the clarificatory letter dated 04.11.2010 of the one Dr. Henry Perschak was placed before Dr. P. R. Purandare of the insurance co. for his comments thereon. The one-sided unsavoury comments ( false judgement; insufficient medical knowledge) on the medical opinion of Dr. P. R. Purandare have to be viewed in the perspective they require to be viewed. This bench finds no reason to summarily discard the medical opinion of Dr. P. R. Purandare of 40. the insurance co., who made his objective opinion on the basis of the entire medical record before him, and was well-qualified for the purpose. The fundamental material facts have to be holistically seen in perspective, with the appreciation 41. that they require to be seen with. could have, would have, should have, etc. in any commentary or critique can in no way take away: [a] the complainant checking into a highly rated five star luxury hotel 12 days after arrival at Zurich, and the hotel being 15 minutes driving time from the hospital, and on the immediate next morning of checking-in the cause for urgent medical support arising on

The patient reported of feeling increasing pain in the upper abdomen after breakfast at around 10 am in the morning today.

and She did not have fever., and the complainant then immediately the very day getting admitted into the modern private clinic which provided highest medical standards and premium hotel-style service if one had supplementary health insurance. [b] the Acute pancreatitis with C2 abuse written in the medical report of 11.05.2010 by two doctors who treated the patient in the emergency center of the hospital at Zurich, and the Alcoholic pancreatitis, liver cirrhosis written in the medical report of 17.05.2010 by a third doctor in the hospital at Zurich, and the medical opinion, made objectively on the basis of the entire medical record before him, of the insurance co.s (well-qualified) doctor (

Claim is for alcohol induced pancreatitis and liver cirrhosis. Hence the claim cannot be allowed.

). [c] the absurdity and fraud, , in the one Dr. Hari Chhablani of Mumbai booking his ticket from ex facie Mumbai to Zurich and back to Mumbai on 29.05.2010, wherein the return was already determined to be on 02.06.2010, and reaching Zurich on 30.05.2010, and then the complainant subsequent thereto getting a stand-alone letter, which is not part of any medical discharge summary or prescription etc., from the one Dr. Stefano Tresch on 01.06.2010 recommending that

she be accompanied by a medical doctor while travelling back home again

. [d] the absurdity and fraud, , in the complainant staying in the highly rated five star luxury ex facie hotel after hospitalisation, from 28.05.2010 to 02.06.2010, for consultation and final examination on 01.06.2010, the discharge summary being dated 28.05.2010, obtaining the letter dated 01.06.2010 from the said one Dr. Stefano Tresch in the consultation and final examination on 01.06.2010, not having any other medical report, advice, etc. dated 01.06.2010, or, for that matter, between 28.05.2010 to 01.06.2010 . [e] the absurdity and fraud, , of including expenses of a second-time further check-up / ex facie examination overseas visit to the same hospital, and in arguing that the said second-time further check-up / examination overseas visit was in addition to obtain rebuttal of the insurance co.s repudiation. Here the following terms of the subject insurance policy are relevant and material: 42. inter alia

12. Any claim under this policy that is fraudulent, or if fraudulent means are used to secure payment of benefits under this policy, then such action shall render this policy null and void and all claims hereunder shall be forfeited. and GENERAL EXCLUSIONS APPLICABLE TO ALL SECTIONS

1. No claim will be paid where the Insured person: c. is travelling for the purpose of obtaining treatment; (extracts from the subject insurance policy) The point in contention is not the letter of the diagnosis, whether the complainant (Nina 43. solely Sudhir Thackersey) had Alcoholic pancreatitis or had Idiopathic pancreatitis, as the case has been attempted to be made out to be. The and points, first, are not whether the complainant (Nina Sudhir 44. primary fundamental Thackersey) had Alcoholic pancreatitis or had Idiopathic pancreatitis, but are: [a] whether the complainant travelled for the purpose of obtaining treatment and [b] whether the complainant indulged in fraudulent means. These latter two are well and truly borne out from the record and the totality of the facts and circumstances. And both are proscribed in the policy terms. For the sake of discussion, even if it is argued that the diagnosis was Idiopathic pancreatitis, 45. meaning, in simple language, pancreatitis due to unknown cause, the facts but remains that: [a] Acute pancreatitis with C2 abuse is written in the medical report of 11.05.2010, Alcoholic pancreatitis, liver cirrhosis is written in the medical report of 17.05.2010, it is nowhere refuted in any manner that the complainant habitually took alcohol, and C2 abuse is one known cause of pancreatitis. [b]

On admission the HbA1c was found to be 6.8%. The blood sugar on admission was found to be higher than the normal range. - - - In the intensive care unit the blood sugar was held constant by using Actrapid Perfusor with a dosage of 2 to 4 units i.v. per hour. The blood sugar readings are found to be significantly higher in the normal care unit. Accordingly, I have put the patient on a combination of Actrapid and 6 units of basal Levemir at night.

is written in the medical report of 31.05.2010, the standard is that patients with HbA1c levels 6.5% are considered as diabetics, the complainant intentionally suppressed this material information prior to the taking of the subject policy, the complainant, after discharge on 28.05.2010, and in the period of consultation and final examination on 01.06.2010, purchased blood glucose test strip as medicine on 31.05.2010, and inter alia pancreatitis and type II diabetes share some of the same risk factors and observational studies indicate that people with type II diabetes have a two to three fold increased risk of acute pancreatitis. The whole edifice on which the claim of the first hospitalisation is based, that the letter of the diagnosis was Idiopathic pancreatitis, fails even on this converse discussion. And this adds to the element of fraud in obtaining, through , the clarificatory personal interaction letter from the one Dr. Henry Perschak in the second-time visit for further check-up / examination to the hospital at Zurich. Here it may further be seen in perspective that the complainant, one Nina Sudhir Thackersey, is 46. the wife of one Sudhir Thackersey, who was the then Chairman of The Hindoostan Spg. & Wvg. Mills Ltd. (now known as Hindoostan Mills Limited), a part of the Thackersey Group Co. The said spinning and weaving co. is a listed entity with the Bombay Stock Exchange, is headquartered in Mumbai, and is engaged primarily in the manufacture and sale of textiles in India and overseas (information available in the public domain). It is relevant that in her complaint the complainant (Nina Sudhir Thackersey) has averred (in 47. paras 15, 17, 18, 29 and 37) that her husband (Sudhir Thackersey) had sought the assistance of one Hiren Kara who was following up:

- - - The Complainants husband had sought the assistance of one Mr. Hiren Kara who was following up with the Opponent No. 2 for processing claim of the Complainant. - - -

(para 15);

- - - On 12 August 2010, the husband of the Complainant alongwith Mr. Kara met Mr. Anil Yadav of Opponent no. 2 seeking some clarifications.- - -

(para 17);

- - - Mr. Kara thereafter followed up with the Opponent No. 2 for processing the said claim. - - - On 6 October 2010, to the surprise of the Complainant, Mr. Hiren Kara was informed by Mr. Anil Yadav that the claim was denied, but the papers were still to be received. The Complainants husband and Mr. Kara, sought permission to meet the concerned doctor; however, they were denied the opportunity to meet him. On the very next day i.e. 7 October 2010, Mr. Kara met Mr. Atul Parab of Opponent No. 2 with Mr. D. Bilgi, Manager of the Opponent No. 1 Mr. Parab informed Mr. Kara that the rejection of claim was due to alcohol related ailment. - - -

(para 18); - - - Meanwhile, the Complainants husband also met Mr. Hiren Kara and requested for details of the follow up done by him in writing in respect of the said clam. Mr. Hiren Kara, vide his letter dated 10 November 2010 gave details of the follow up done by him and the response given to him by the Opponent No. 2 in respect of the said claim. Hereto annexed and marked as EXHIBIT O is copy of letter dated 10 November of Mr. Hiren Kara. - - - (para 29); and

- - - Husband of the Complainant and Mr. Kara immediately sought permission to meet the doctor, but were refused the same. - - -

(para 37). It is seen that the said Hiren Kara who was following up with the insurance co. for processing claim of the complainant wrote a letter dated 10.11.2010 addressed to the one Sudhir Thackersey (husband of the complainant) on his efforts made: - - - 6 October 2010 Visited Mr. Anil Yadav who said that the doctor says that the claim is declined - - -.;

- - - I sought permission from Mr. Anil Yadav to meet the doctor. As he did not give me the name, I was denied opportunity to meet the doctor. - - -

. It is also seen that the said Hiren Kara is a shareholder (belonging to the category public with > 1% holding of the total number of shares) in the company Hindoostan Mills Limited in which the husband of complainant one Sudhir Thackersey is the chairman emeritus (information available in the public domain). It is, thus, evident that attempts were made to try to meet to influence the insurance co.s doctor, who was to make his objective professional opinion on the basis of the entire medical record before him. If at all any follow-up re the claim had to be done, it should ordinarily have been limited to the managerial officials responsible for processing. In the overall facts and circumstances, the one plausible reason to extend the follow up to try to meet the doctor on whose objective professional opinion the claim rested can albeit be to make a attempt to unduly influence him. malafide There are too many questions in the whole claim made with the insurance co. and in the 48. complaint filed before the State Commission. The totality of the facts and circumstances point towards travelling for the purpose of inter alia obtaining treatment and fraudulent means, which are specifically excluded in the policy terms. An insurance claim has to be of utmost good faith, made with good conscience and clean hands. 49. If there is reasonable doubt on its , the repudiation by the insurance co. cannot be questioned. bonafide Similarly, a consumer complaint against repudiation of an insurance claim has to be made with 50. utmost good faith, with good conscience and clean hands. If there is reasonable doubt on its , bonafide the repudiation made by the insurance co. as per its applicable rules and its due procedures cannot be set aside. An insurance claim which bespeaks of , substantively and substantially, cannot be 51. malafide segregated to cull-out portions which could be anyhow allowed. The substantive and substantial air pervades the whole claim, the whole claim becomes bad. malafide Fraud vitiates the entire claim. 52. Honble Supreme Court in . vs. , S.L.P (C) United India Insurance Co. Ltd Rajendra Singh & Ors. 8479 of 1999 has observed: Fraud and justice never dwell together ( ) is a pristine fraus et jus nunquam cohabitant maxim which has never lost its temper over all these centuries. Lord Denning observed in a language without equivocation that no judgment of a Court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for, fraud unravels everything (Lazarus Estate Ltd. Vs. Beasley 1956(1) QB 702.) In the considered opinion of this bench, the State Commission has erred in holding deficiency 53. in service and unfair trade practice on the part of the insurance co., and has erred in accepting the claim in its entirety (sans compensation), and with interest @ 7% per annum, when each and every part thereof was under question, and when the substantive and substantial air therein malafide pervaded the whole claim. The State Commission completely ignored the holistic facts and circumstances that decidedly point towards attempt at insurance fraud. malafide On the other hand, deception and are evident on the part of the complainant, fraud is 54. malafide writ large. This is a classic example of what to do. 55. not This bench has no hesitation in allowing the appeal of the insurance co. and setting aside the 56. impugned Order dated 10.05.2012 of the State Commission. Such pre-meditated attempt at insurance fraud, in such facts and manner, and then 57. malafide litigating as a consumer under the Consumer Protection Act, 1986, a beneficial legislation for consumers, is decidedly a attempt to misuse the statutory provisions provided for for better malafide protection of the interests of the consumers. Consumer protection fora are not meant for expeditions, especially so by persons of high malafide economic status and especially moreso when such expeditions are aimed at defrauding public monies (the insurance co. being a public sector unit of the government). The time and resources of consumer protection fora have been wasted in such manner and for such purpose. This is not viewed favourably. In the totality of the case, stern advice of caution is given to the complainant through imposition 58. of cost of Rs.1,00,000/- (rupees one lakh), to be deposited with the Consumer Legal Aid Account of this Commission within four weeks of the pronouncement of this Order. It is also noted that, on 12.09.2012, this Commission, while admitting the instant first appeal, 59. stayed the operation of the impugned Order dated 10.05.2012 of the State Commission, subject to the appellant insurance co. depositing 50% of the awarded amount before this Commission. In compliance thereto, the insurance co. deposited Rs. 26,03,753/- with the Registry of this Commission. Vide Order dated 22.02.2013 of this Commission, an application seeking withdrawal of the said deposited amount (Rs. 26,03,753/-) was allowed subject to the complainant furnishing continuous bank guarantee for restitution in the event of the appeal being allowed: 22.02.2013 ORDER Vide order dated 12.9.2012, operation of the impugned order was stayed subject to the appellant depositing 50% of the awarded amount with this Commission. Appellant has deposited the amount. Respondent has moved this application seeking withdrawal of the deposited amount. Office is directed to release the amount to the complainant respondent subject to her furnishing continuous bank guarantee for restitution in the event of the appeal being allowed. M.A. stands disposed of accordingly. The Registry reported that an amount of Rs. 26,03,753/- was released on 07.06.2013 in favour of the complainant. The said amount of Rs. 26,03,753/-, withdrawn by the complainant, shall be paid by the 60. complainant to the insurance co. with interest @ 7% per annum from the date of withdrawal till the date of actual realization, within four weeks of the pronouncement of this Order. [The rate of interest of 7% per annum is the same as was awarded by the State Commission in its impugned Order (which has now been set aside).] The Registry shall immediately invoke the bank guarantee, if renewed till date, and make good the amount so invoked to the insurance co., within two weeks of the pronouncement of this Order. The balance amount shall be paid by the complainant to the insurance co., within four weeks of the pronouncement of this Order. If for any reason the bank guarantee cannot be invoked by the Registry, for want of renewal or otherwise, the complainant shall pay the said amount of Rs. 26,03,753/- withdrawn on 07.06.2013 with interest @7% p.a., as directed afore, within four weeks of the pronouncement of this Order. In case of failure or omission to comply with the above directions within the stipulated period of four weeks of the pronouncement of this Order, the State Commission shall proceed for execution as per the law. Here it may be noted that the complainant had to comply with the direction to continuously renew 61. the bank guarantee. Accordingly, if the same has not been renewed till date, the complainant shall also be liable for under section 27 of the Act 1986 for failure and omission to comply with an penalties order of this Commission. The appellant insurance co., a public sector unit of the government, is advised to examine such 62. high-value and fraudulent claims holistically and comprehensively and with the due malafide diligence, and to also ensure that their cases are professionally conducted with the due diligence before consumer protection fora including this Commission. Systemic improvements for future may be inculcated accordingly. Towards this end, a copy of this Order be sent by the Registry to the chief executive of the insurance co., within two weeks of its pronouncement. The operative paragraphs are , , , and . 63. 56 58 60 61 62 ...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER