Gowri Sur vs ORIENTAL INSURANCE COMPANY LTD.

THIS complaint was filed in this Commission on 20.9.2002 wherein the complainant, Dr. (Mrs.) Gowri Sur has claimed an amount of USD 26806 towards the Overseas Mediclaim Insurance Policy, issued by the Extension Counter of OP 1, Oriental Insurance Co. Ltd., situated at high security zone of the Departure Building at Terminal -II of I.G.I. Airport, New Delhi, OP 1, the same being under the supervision and control of OPs 2 and 3, to the complainant, who, was leaving for USA, along with her husband Dr. B.K. Sur besides interest @ 15% p.a., from 7.1.2001, till realisation, on claim No. 1. She has further claimed Rs. 10,00,000 as damages, with interest @ 15% p.a., from 30.7.2001, till payment, from Oriental Insurance Co. Ltd., at I.G.I. Airport, New Delhi, OP 2 and the Commissioner of Police, I.G.I. Police Station, New Delhi, OP No. 3. It may be mentioned here that OP 3 was discharged vide order passed by this Commission, on 4.4.2003. The Insurance Company repudiated the claim on 9.3.2001 by informing the complainant that the above said policy documents were not issued by their office. The complainant was also informed that it appears to be a fabricated document for which the police was taking action.

THE facts germane to the present case are these: The complainant, Dr. (Mrs.) Gowri Sur and her husband, Dr. B.K. Sur, were about 72 and 77 years of age, respectively, at the time of filing of this complaint. They have two sons, who are residents of USA. The complainant and her husband went to USA, for the sixth time, since 1998. For the sixth visit to USA, Dr. B.K. Sur, the husband of complainant, was advised that since the complainant had completed 70 years'' of age, clearance for policy was required from the Regional Office in Lucknow and Head Office in New Delhi. Alternatively, he was advised that the policy could be easily obtained from the Extension Counter of OP 1, inside of Departure Building of I.G.I. Airport Authority, New Delhi, within an hour of submitting the form. However, there is no such proof. This is a bare assertion. The complainant and her husband approached the Extension Counter of OP 1, as stated above. There was a prominent Sign Board carrying, inter alia, the sign of "Overseas Mediclaim Policy". That extension counter was controlled by a single person. Thereafter, the complainant and her husband submitted the duly filled -in proposal form for OMP to him, along with the requisite medical certificate, who informed them that the said papers were not required as the extension counter issued OMP providing restricted cover only which did not require medical tests or reports on account of shortage of time, before travel. They were assured that the policy would provide cover to the extent of USD 1,00,000.00 for accident and USD 10,000.00 for illness and the premium thereon was required to be paid in cash to avoid any undue complications. Accordingly, the complainant and her husband paid a sum of Rs. 20,066 in cash, to OP 2 and the Overseas Mediclaim Policy was issued to them on the spot. They travelled to USA, on the strength of risk covered under the said policy. It is surprising to note that complainant and her husband, who were going to U.S.A. for the sixth time reposed faith in this version in a jiffy. Does not it appear to be a story made out of whole cloth. In USA, the complainant suffered a hip bone fracture requiring hospitalisation and treatment at University of Texas, Medical Branch (UTMB), Galveston, Texas, USA. She was operated upon and the bill amount of USD 26,806.00 was paid. However, OP 1''s representatives, Mercury International Assistance and Claims Ltd., U.K. and its Branch at USA, declined to reimburse the same because it had no instructions from OP 1. Due to this, the complainant could not come back to India, immediately. Her son -in -law, Dr. Rajiv Chitranshi, faxed to OP 1, on 7.3.2001, requesting to settle the claim, but OP 1 denied its liability. Neither the Police nor OP 1 came to the rescue of the complainant. FIR was registered due to intervention of higher authorities. On 14.6.2001, the Police arrested one, Rakesh Kapoor and another, Hemant Kumar, working on contract basis for OP 1. They were arrested in a criminal case but the complainant was not a ware of what had happened thereafter. It is contended that Board outside the office of OP 1, clearly mentions "Overseas Mediclaim", as is evident from the photograph of the said Sign Board, taken by the son of the complainant, while going to USA, subsequently, in first week of April, 2001.

WE have perused the said photograph. It mentions "Air Insurance", the next line, it mentions, "Flight Coupens Upto 20 Lacs,......Gain Policy", (illegible). The head of the son of the complainant covers Insurance Co. Ltd. The words "Overseas Mediclaim Policy", are conspicuously missing. It is contended that all the OPs are jointly and severally liable to pay the said amount.

BOTH the parties have contested this case. We have heard the Counsel for the parties. The learned Counsel for the complainant vehemently argued that the OP 1 is vicariously liable for all the omissions and commissions, made through their representative, Rakesh Kapoor. It is not out of place to mention here that the Counsel for OP 1 has admitted that Sh. Rakesh Kapoor was their representative. In this context, it may be also pointed out that I.G.I. Airport, New Delhi, has filed an affidavit which goes to show that as per the licence, the following covenants are important: "16. The licensee hereby indemnified the Licensor and saves the Licensor harmless against any action, proceedings, claims or demand of any person made against the Licensor in respect of or as a result of the business carried on by the Licensee or the Licensee committing any breach of the provisions of any law or statutory regulations or in consequences of any act of commission or commission or default of the Licensee, its servants, agents or workmen and against all costs, charges and expenses which the Licensor may have to pay, incur or sustain by reason of any such action proceedings, claim demand or otherwise in relation thereto.

The Authority shall not be responsible in any way for any loss or damage caused to the stock or property or belongings of the Licensee or its staff or representatives in the premises arising from any cause whatsoever."

THERE is an affidavit of Mrs. Varsha Anand, Senior Commercial Manager, Airports Authority of India, and its para No. 9 is reproduced here, as under: "Para 9. That as mentioned in the complaint, FIR has been lodged and the fraud alleged in the complaint is the subject for criminal proceedings initiated on the basis of the said FIR. In this connection, the police had arrested Mr. Rakesh Kapoor, a Representative of the Insurance Company OP -1 along with one Hemant Kumar as evident from letter dated 22.11.2002 (Exhibit OP -2/B) forwarded by SHO, Police Station, IGI Airport and letter dated 16.7.2001 (Exhibit OP -2/C) of Senior Divisional Manager of Oriental Insurance Company OP -2 both addressed to Deputy General Manager (Commercial) IGI Airport.

However, I say that it is a matter for investigation to find out the correct facts as to where and by whom the fraud, if any, was perpetrated."

ON the other hand, the OP 1 has proved the following letter addressed to Mr. Rakesh Kapoor dated 1.7.1998, as under: "We regret to inform you that in view of the serious underwriting lapses and irregularities committed by you in the issuance of the Overseas Mediclaim Policies, it has been decided by the Competent Authority to withdraw this authority from you with effect from 1.7.98. This was also conveyed to you personally by the undersigned when you visited the office on 30.6.98. You are requested to please arrange to return all the printed stationary pertaining to the Overseas Mediclaim Policies immediately on receipt of this letter.

Thanking you,Yours faithfully,Sd/ -S.K. Bhavya (illegible)Divl. Manager."

In response to the said letter, Sh. Rakesh Kapoor, vide letter dated 3.7.1998, deposited the unutilized policies and gave their Nos. in the detailed document, at page 142, Part -II. The learned Counsel for the complainant also invited our attention towards the policy which bears the signatures of somebody/an unknown person, without designation.

A closet scrutiny of record reveals that the case of complainant is littered with the evidence of its weaknesses. To top it all, it is clear that the complainant and her husband did not follow the advice given by the so -called Divisional Manager. There is no proof that the Divisional Manager had given them alternate suggestion to get the policy issued at Airport. Secondly, there is no proof that the said Sign Board mentioned Overseas Mediclaim Policy. Since the complainant went to U.S.A. for the sixth time, they ought to have known the fact that Overseas Mediclaim Policies can only be issued by a Divisional Office. There was no arrangement of issue of Overseas Mediclaim Policy on the counter, at the spot, without their being examined by the Panel Doctor of OP 1. It is difficult to fathom as to how this policy was issued. The Overseas Mediclaim Policy Schedule, Annexure -I, at its head, clearly, specifically and unequivocally mentions that "THIS OVERSEAS MEDICLAIM INSURANCE IS ONLY AVAILABLE TO INDIAN CITIZENS BETWEEN 6 MONTHS AND 70 YEARS OF AGE WHO ARE UNDERTAKING BONA FIDE TRIPS OUTSIDE INDIA WHICH WILL NOT INVOLVE ANY FORM OF MANUAL WORK AND DO NOT EXCEED 180 DAYS IN DURATION, UNLESS SPECIFICALLY EXTENDED". Again it further mentions:

"Restricted Cover:

In the event the proposer is unable to undergo medical tests and reports cannot be submitted due to shortage of time before travel, restricted cover may be granted subject to satisfactory proposal form. The sum insured would stand reduced to USD 10,000 in respect of and limited to expenses for physician and medical services and local emergency transportation in connection with illness and disease only. Such restricted cover would be available upto the age of 70 years. All other terms, conditions and exclusions remain unchanged."

IT is, thus, clear that the complainant ignored this warning. It must be stated here that the complainant and her husband are well educated persons. They are accustomed to go to USA, time and again. The complainant left India, with her husband, on 2.7.2000 and they did not return, even after expiry of 180 days, in violation of the said so -called Mediclaim Policy Schedule. Even after attaining the age of seventy years, complainant after attaining the age of seventy years, complainant and her husband went on to take that overseas mediclaim policy at their own peril. This fact is crucial which goes to dampen the order of her case. It smacks of mala fides on their part. A haze of suspicion covers this case. Furthermore, no receipt for payment of premium saw the light of the day. Whether they had paid the premium at all or not, is a fact which is shrouded in mystery. In absence of receipt for premium, the position does not begin to jell. The production of receipt for premium, would have gone a long way to establish the case of the complainant.

NOW , let us examine the policy. It is signed by one person, whose signatures, nobody can identify. We have also perused the admitted signatures of Rakesh Kapoor which appear on his reply, dated 3.7.1998 and another reply dated 27.7.1999. These signatures do not tally with the signatures appearing on the policy.

RAKESH Kapoor was never produced before us. There is no evidence whether Rakesh Kapoor met the complainant at the counter or somebody had confronted with the complainant and her husband. It appears that the complainant has committed an egregious mistake by not pursuing the criminal case. It is not yet known whether there was any recovery, admission/sentence or punishment. Whether those persons were related with this case or not, is folded in mist. It may be also mentioned here that Rajiv Chitranshi, son -in -law of the complainant sent the following fax message, dated 7.3.2001, to the Oriental Insurance Co. Ltd.: "Dear Sir,

We are faxing the front cover of the above said overseas mediclaim policy issued at Indira Gandhi International Airport on 2nd July, 2000, in favour of Ms. Gawri Sur. The passenger travelled to USA on the same night and had paid Rs. 20,066 (Rupees twenty thousand sixty -six only) to cover plan B for claims on medical ground during her trip abroad. The policy was valid upto 29th December, 2000. The policy holder had an .................".

IT was promptly replied by the Oriental Insurance Co. Ltd., vide letter dated 9.3.2001, the relevant extract of which, runs as follows: "Please note that this policy document has not been issued by our office. It appears to be a fabricated document for which we have already initiated necessary police action."

SO far as vicarious liability of the Airport Authority and Insurance Company is concerned, their duty stands discharged. The persons are identified as Rakesh Kapoor and Hemant Kumar. Since they were arrested by the Police, therefore, the question of their liability pales into insignificance. The duty casts on the complainant is that she should have approached the police and informed them about the alleged act, at the counter. The complainant should have produced the policy and asked the police to get the signatures compared. Because those persons were arrested, therefore, the liability of the OPs comes to an end. That extends upto their identity only. The complainant has made a vain attempt to make bricks without straw. The complaint being sans merit is hereby dismissed.