BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PAPUM PARE DISTRICT, YUPIA

ARUNACHAL PRADESH

Case NO CDRC/PP-126/2022

                                    Date of Judgment:19^thJan’2024

Mr. Rama Hina Nabam

S/o Late Nabam Tapin

R/O(P) Sector, Itanagar

PO/PS:Itanagar

Papum Pare District, Arunachal Pradesh            …       Complainant

-Versus-

1. Aditya Birla Health Insurance Co. Limited.

Represented by Managing Director

10^th Floor, R-Tech Park

Nirlon Compound,

Goregaon-East-Mumbai, 400063

2. Axis    Bank    Ltd.-Itanagar Branch

Represented by   Bhim Singh,

In-charge Aditya Birla Health Insurance.

PO/PS-Itanagar,

Dist- Papum pare, Arunachal Pradesh               …       Opposite Parties

CORAM:                Smt. Jaweplu Chai, President

Mr. Tarh Loma, Member

Miss Deepa Yoka, Member

For the Complainant                             :Ms. Likha Moriam, Advocate

For the Opposite Party No. 1       :Shri D. Ado, Advocate

For the Opposite Party No. 2       : Shri A. Borah, Advocate

Date of Filing                              :28. 10.2022

Date of Reply                                       :31.03.2023& 26.05.23

Date of Hearing                         :22.12.2023

Date of Judgment                        :19.01.2024

  And having stood for consideration to this day, the District Forum delivered the following Judgment.

J U D G M E N T

1. Complainant’s case: On 28. 10.2022, the complainant filed this complaint under section 35 of the Consumer Protection Act, 2019.The complainant stated that the is aconsumerasdefined under section 2(7) of the consumer Protection Act 2019 and also the complaint is well within the limitation period under Section 69(1) of the Act. Hence entitled to all the rights privileges and protections guaranteed under the Consumer Protection Act- 2019.

2. That the opposite parties are Product service provider under section 38 of the Act 2019 (Health Insurance Policy). It was introduced by the opposite party No 2 about the Health Insurance policy and benefit of cash less medical treatment in the event of any hospitalization. The Complainant purchased Health Insurance Policy from the Opposite party No 1 through opposite party No2 on 05-03-2021 by paying first premium of Rs. 16, 899.00 per annum and sum assurance amount was Rs. 5,00,000/-only and same was still valid upto25-03-2023onrevalidation.

3. That after few weeks the opposite party No 1 provided with a Certificate of Insurance called “Group Active Health- “Certificate of Insurance”. It is pertinent to say that health Insurance policy is furnished only after the payment of premium being made. However, brochure of the Insurance Policy was made available to go through the terms and conditions of the health insurance policy. It was nowhere mentioned about the disqualification on the ground of hypertension disease. That some queries were made by the opposite party No 2 while filling a form for Health Insurance Policy in his computer. No question on hypertension was tendered or out of site and inadvertently left the column blank on the matter Hypertension disease. If it was so mandatory to mention then the defective Health Insurance policy proposal should not have been approved by the opposite party No1. Hence inference could be drawn either not mandatory or negligence on the part of the opposite parties. The Complainant neither attributed nor liable for their default. (A copy of Certificate of Insurance is annexed as Annexure-A).

4. That on 04-03-2022 the Health Insurance policy got expired and the complainant got it revalidated before expiry by paying the next annual premium and it was extended to 24-03-2023 by the opposite party No 1. That till revalidation to 23-03-2023 the opposite party never raised any objection or sought any clarification of hypertension issue but willfully accepted the extension of Health Insurance policy of the complainant for the second time. The opposite parties willful and deliberate acceptance of revalidation of Health Insurance Policy proves that either hypertension matter is not mandatory or accepted with an malafide intension to deceive the Complainant when any claim is made and deny the same on the ground of non-disclosure of hypertension disease. (A copy of Health Insurance policy Card up to 24-03-2023 is annexed and marked as-ANNEXURE-B).

5. That the Complainant was under medical treatment at Heema Hospital-Itanagar for few days. On 07/05/2022 Dr. Pakam (MD) advised to go out of ltanagar for better medical treatment. On 09/05/2022 he reached New Delhi and consulted with a senior Doctor L.R.Sharma (Senior Consultant-Internal Medicine)on the same day at around 5 pm.After examining the doctor advised to do some test and prescribed few medicines to control fever and cough till reports were available for his perusal and proper treatment could be started. That at the time of Clinical Examination the blood pressure was 120/80 mmHg, which he believes to be perfectly normal considering the complainant age group of 51 years. (A copy of doctor prescription is annexed and marked as-ANNEXUIRE-C).

6. On 12-05-2022 the complainant again rushed to Apollo Hospital on same complaint even after having the medicines for last 3 days.The Doctor thoroughly examined and perused all the reports and finally advised to get admitted in the hospital for better treatment.Accordingly,he got admitted in Apollo Hospital on 12-05-2022. (A copy of doctor prescription is annexed And marked as-ANNEXURE-D).

7. That the complainant having the Health Insurance policy covered for cashless medical treatment approached the Health Insurance Help Desk at Apollo Hospital itself on 12-05-2022.Claim form was duly filled up and Insurance certificate was attached and handed for approval.However cashless medical treatment facility was denied by the opposite party No 1 on flimsy and un-bonafide ground of Non-disclosure of “Hypertension disease”in the applied Insurance form. In the said letter dated 12/05/2022 it was also contended that it was not the complete /final denial of claim for reimbursement.As already stated the opposite party no 2 is the selling agent of the opposite party no. 1 product(Health Insurance Policy) and some queries were asked by the opposite party no 2 while filling the application form for Health Insurance policy in his computer, but no such question was asked or may be out of site and inadvertently left it blank on hypertension issue. The pertinent question is that if it was so mandatory for health insurance policy to the covered then why the opposite party No 1 accepted the said defective policy without any objection. Such act on the part of opposite parties is nothing but prima facie evidence to show that the issue of Hypertension is either not mandatory or blatant negligence on their part and committed deficiency in service.There is no attribution from the complainant side in this matter and can't be made scapegoat to cover up their deeds. (A copy of denial letter dated 12/05/2022 is annexed and marked as-ANNEXURE-E).

8. That the complainant purchased the Health Insurance Policy to get relief from financial constraint at the time of need, however was totally shocked and dismayed when opposite party No 1 denied the claim for cashless medical treatment at Apollo Hospital-New Delhi on 12.05.2022. Whereas Health Insurance Policy was covered/valid up to 23-05-2023.The sole purpose to have Health Insurance Policy cover was frustrated as it failed to achieve its goal.The entire medical bills amount was any how managed and cleared. On 17/05/2022 the grace of God the Complainant was released from the Hospital and was hoping that at least opposite party No 1 will approve the reimbursement medical claim being genuine as reflected in their letter dated 12-05- 2022. (A copy of discharge certificate/summary and Payment bills Are annexed and marked as ANNEXURE F – series).

9. That the complainant after reaching home town at Itanagar, visited the opposite party no 2 office (Axis bank- Itanagar Branch. AP) and enquired about the medical reimbursement procedure. Medical reimbursement claim form was made available and it was duly filled up and he annexed all the relevant medical documents with doctor signature and seal of Apollo Hospital as asked for.It was handed over to opposite party no 2 and same was duly send to opposite party No 1 for approval and reimbursement.

10. That as it was contended in the opposition party No 1 letter dated 12/05/2002, denial of cashless medical treatment was not the final denial and one can claimed for reimbursement after medical treatment. The complainant was expecting that the reimbursement medical claim would be approved and justice would be done.But to his utter shocking and dismayed, the medical reimbursement claim was rejected on the same ground (Non disclosures of Hypertension disease). Whereas entire medical treatment at Apollo Hospital was for fever, cough and headache, which is nothing to do with hypertension disease. (A copy of rejection letter is annexed and marked As ANEEXURE-G series).

11. That the cause of action for filing the present case arose on 12/05/2022,when the opposite party no 1 illegally denied for cashless medical treatment at Apollo Hospital. Whereas Complainant Health Insurance policy was covered for cashless treatment and same is still valid up to 24-03-2023. That the complaint has been filed within the limitation period as prescribed under section 69(1) of the Act. Further under section 34 of the Act, territorial and pecuniary value is Rs. 23,99,179.00/-/- (rupees Twenty-Three Lakhs Ninety-Nine Thousand One Hundred and Seventy-Nine) only which is well within the pecuniary Jurisdiction.

12. Therefore, the complainant respectfully prayed to admit this complaint and direct the opposite partiesto refund the total amount of Rs. 2,49,179.00/- which was paid to Apollo Hospital for medical treatment with 18%interest till the total compensation amount is paid; to pass Award of an amount of Rs 20,00000/-(Twenty lakhs )only to the complainant on account of negligence /deficiency of service by the opposite parties; to Award an amount of Rs 1,00000/- (One lakh) only on account of mental and physical harassment; An Award of Rs 50,000/- (Fifty five thousand) only as litigation charges for having forced the complainant to approach this Hon'ble Commission; And prayed for any other relief which the Hon'ble Commission may find deem fit and proper in the nature of the present case.

13. Upon the notice, the Opposite parties appeared and contested the complaint by filing their respective written statements. On 31.03.2023 Sri D. Ado,the learned counsel on behalf of OP No. 1 by denying everything made in the complaint andstated that the Complainant has purchased a health insurance policy from the Insurance Company on 31.03.2021. Under the policy, the Complainant was insured for the medical expenses incurred in relation to Mr. Nabam Hina Rama, and Ms Nabam Kochom as Nominee subject to terms and conditions of the policy. The policy was renewed on payment of second premium and is valid till 24.03.2023.

14. That at the time of purchase, the Complainant was asked of the then existing medical issues.It was clearly informed to the Complainant that failure to disclose any material fact such as persisting medical issues related to the Complainant would make the entire policy void and the Insurance Company will not be liable to make any payment under the policy. That this was further mentioned in the policy issued to the Complainant. The relevant portion is extracted herein below:

• The Insured Person must disclose all pre-existing disease/s orcondition/s before buying a policy. Non-disclosure may result in claimnot being paid.”

"Section F. Duty of Disclosure & Fraudulent Claims -The Policy shall be null and void and no benefitshall be payable in the event of untrue or incorrect or incomplete statements, misrepresentations or non-disclosure of any material particulars in the proposal form, personal statement, declaration, claim form declaration, medical history on the claim form and connected documents, or any material information having been withheld by You or any one acting on Your behalf, under this Policy. You further understand and agree that we may at our sole discretion cancel the Policy and the premium paid shall be forfeited by us".

15. That the Complainant did not disclose any ailment at the time of purchasing the policy in 2021 or at the time of renewing the policy in 2022. That he misrepresented to the Insurance Company stating that he is a healthy individual with no medical conditions. It is based on this representation from the Complainant that the Insurance Company agreed to cover for the medical expenses of the Complainant subject to the terms and conditions of the policy.

16. That the Complainant in May 2022, filed a cashless claim alleging that he was hospitalized for fever, cough, and headache and sought for the hospitalization expenses to be reimbursed. The claim form was not accompanied by complete set of medical records such as discharge summary or investigation report.When the available documents were scrutinized, it was found that the Complainant had been suffering from Hypertension for 10 years before hospitalization. This was seen from some of the handwritten medical records supplied by the hospital authorities at that point of time. In fact, the Complainant has himself filed one such medical record dated 03.05.2022 along with the Complaint as Annexure-C series.

17. That as the Complainant never informed the Opposite Party of the hypertension, the cashless claim was rejected by them on 12.05.2022. In fact, it was mentioned that the rejection is not final and once all documents are made available, the Company would evaluate the reimbursement claim. This can be evidenced from Annexure E filed by Complainant.

18. Later, the Complainant claimed 'Reimbursement Claim' under the cover that he underwent treatment for fever, cold and cough'.  Upon receipt of claim, the Insurance Company sought for documents necessary for processing the claim such as the discharge summary, medical history, medical test reports, hospital and pharmacy bills. The Complainant did not submit all the relevant documents.In view of this, the Complainant sought for documents from the hospital authorities.When the discharge summary and final medical records made available by the hospital authorities were scrutinized, it was found that the Complainant underwent treatment for 'Pyrexia of Undetermined origin'and 'Essential Hypertension'. The term 'Pyrexia' would mean fever. It is stated from medical literature that Hypertension is the major cause for Pyrexia. According to recognized medical literature, hypertension would directly lead to Pyrexia i.e., fever.This is because when the nitric oxide content in the body is high, it relaxes the inner muscles of blood vessels causing them to widen.The widening of blood vessels increases blood flow. In case of contrary, i.e., if nitric oxide is low, blood pressure is high for the blood to flow through the vessels. From the medical literature that when nitric oxide is less, body temperature is high causing high fever. The medical literature showing that hypertension being a major cause to Pyrexia is filed herewith.

19. Thus, it is clear that the pyrexia in the instant case was mainly due to hypertension that the Complainant has been suffering for the past 10 years. The presence of hypertension for the past several years was never disclosed to the Opposite Party either at the time of obtaining first policy in 2021 or at the time of renewal in 2022.This fact is admitted by the Complainant in the complaint.The doctors who treated the Complainant have concluded that the Complainant has been hospitalized to take treatment for essential hypertension and for its main symptom-pyrexia.It is pertinent to note that Complainant is stated to be a known case of hypertension for the past 10 years (discharge summary). This shows that the Complainant has intentionally suppressed the pre-existing diseases that were prevailing at the time of purchase of the policysolely to hoodwink the Insurance Company into providing the Insurance Policy.

20. That the policy terms clearly stipulate that suppression of material facts and misrepresentation of facts by the Complainant will render the policy void. The relevant portion of the policy deeming the policy to be void is extracted below:

"Disclosure to information norm: The policy shall be void and all premiums paid thereon shall be forfeited to the Company in the event of misrepresentation, mis-description or non-disclosure of any material fact".

21. Further, it is well established by the Supreme Court that the contracts of insurance are based on uberrima fidei i.e., utmost goodfaith and that every factum of materiality must be disclosed otherwise there is good ground for rejection in several cases such as: a) Satwant Kaur Sandhu vs. New India Assurance Company Ltd, (2009) 8 SCC 316; b) Life Insurance Corpn. Of India & Ors. V. Asha Goei (Snt) &Anr. [(2001)SCC 160] and P.C. Chacko vs LIC of India (2008) 1 SCC 321.

22. That the diseases, the existence of which were suppressed, have direct and material connection to the current medical condition for which the claim is filed. If the aforesaid diseases were mentioned at the time of obtaining the policy, the Insurance Company would have evaluated the risks involved accordingly and could have taken an informed decision whether or not to undertake to cover the expenses of the Complainant. Knowing fully well that the Insurance Company might reject the policy in case they had knowledge to the pre-existing diseases, the Complainant has suppressed the material facts and misrepresented that the Complainant has no disease or medical condition at the time of purchase of policy.

23. Thus, the Policy is void on account of misrepresentation and non-disclosure of material fact.It is in view of the aforesaid suppression of material facts, the Insurance Company rejected the claim of the Complainant by letter dated 04.10.2022. This letter was a reasoned decision letter wherein the Insurance Company had clearly pointed out the medical conditions that were suppressed and the reason for rejection along with the relevant clause of the policy.

24. That the Complainant has not come with clean hands before this Hon'ble Commission as he has suppressed and misrepresented material facts. The entire policy has become void due to violation of material clauses of the policy. That the rejection of the claim is in accordance with the well-established principles of Insurance law and the insurance policy between the parties. Thus, the Insurance Company and the 1^stOpposite Party is not liable for any deficiency of service.

25. Giving the parawise reply, the OP No. 1 submitted that the above complaint is comprised of false and misrepresented facts. It is specifically denied that the policy did not mention about the disqualification on the ground of hypertension diseases. As per the terms of the Insurance Policy, it is the duty of the Complainant to provide with all the pre-existing illness and not suppress any fact. This can be seen from the policy clause. It is further specifically denied that the Health Insurance Policy was defective.

26. It is denied that the 1st Opposite Party accepted the renewal of the insurance policy with a malafide intention to deceive the Complainant and has willfully or deliberately accepted the renewal. The Opposite Party cannot anticipate that the Complainant would suppress the facts. It is the Complainant's duty to come clean with all pre-existing diseases.Had that information served on the Opposite Party,they would have decided whether or not to issue the policy and whether to issue with modified terms and conditions such as with waiting period.

27. That the Insurance Company is not within the knowledge of the symptoms alleged to be experienced by the Complainant or the events until hospitalization. That the Complainant did not submit the claim related documents such as medical investigation reports, bills etc. at the time of intimation of claim. Hence, the Insurance Company sought for the relevant documents from the Complainant and the hospital authorities. It is denied that the rejection was made on flimsy and malafide ground. That the rejection of claim was made due to Complainant's suppression of material facts.

28. It is vehemently denied that the hypertension is not related to fever, cough and headache. The medical literature filed by Complainant would show that the hypertension is directly related to the said symptoms. With discharge summary clearly stating that the Complainant is diagnosed with hyperthyroidism and have availed treatment for the same, it is denied that the rejection is baseless.

29. That there is no cause of action for the Complainant in the present case. The claim was rejected only due to suppression and misrepresentation of pre-existing diseases that were crucial to the policy. It is denied that the Opposite Parties had committed deficiency in service or that they are liable to pay any sum specified  in the complaint or otherwise. It is denied that the Complainant has faced any mental agony and the Complainant is put to strict proof of all the claims, allegations and averments made therein. The Complainant is not entitled to any reliefs prayed therein.

30. The OP No. 1 reiterated that the Complainant has not come before this Court with clean hands and has malafidely suppressed the existence of serious medical conditions that had led to the current medical condition of the Complainant as can be evidenced from medical literature and other documents filed herewith. The rejection of the claim of the Complainant is only due to suppression of material facts pertaining to the hypertension and associated medicalconditions. It is submitted that the Insurance Company has not committed any deficiency of service as alleged or otherwise.

31. On 26.05.2023, Sri A. Borah, learned counsel fortheAxis Bank, OP No. 2 filed his written statement and submitted that the Answering Opposite Party 2 i.e., AXIS Bank Ltd. (hereinafterOP Bank) is a Banking Company incorporated under the Companies Act, 1956 and registered with the Reserve Bank of India and carrying on Banking business under the guidelines of the Reserve Bank of India having its registered office at Ellisbridge, Mumbai, Maharashtra, inter alia having branches all over North East India including Itanagar.

32. That the OP Bank is represented by the Itanagar Branch Manager namely Bhim Singh who is authorized to appear on behalf the Bank vide Board Resolution of the company dated 12 June’2018.(A copy of the aforesaid Board Resolution annexed herewith and marked as ANNEXURE – 1).

33. That the OP Bank is solely a Banking Company within the meaning of the Banking Regulation Act, 1949 and is engaged in business of providing Banking and allied services to the customers and is carrying on their business under the guideline of the Reserve Bank of India, and other concerned statutory authorities, Complainant's grievance pertains to rejection of a Health insurance policy issued by the Opposite Party No.1 and has nothing to do with the answering OP Bank. Hence, the complaintis liable tobe dismissed.

34. That the complainant impleaded the OP Bank in the instant case on the basis of the fact that the said Health Insurance Policy was introduced by the answering OP Bank to the complainant. The OP Bank is a separate Legal Entity and merely introducing the said Health Insurance policy does not attract any liability and/or obligation upon answering OP Bank in any manner whatsoever. As the complainant has issues with insurance claim, they should take up with the insurance company (Opposite Party No.1) and not with the OP Bank. The Complainant has failed to show deficiency in service on the part of the OP Bank. Hence, the averments and/or allegations made in the complaint are frivolous, baseless and misconceived and the complaint against this Opposite Party is not maintainable and, on that basis, alone the same may kindly be rejected in toto against OP Bank.

35. That answering OP Bank does not have any role in the settlement of insurance amount, OP Bank has only been maintaining the account of the complainant and thecomplainant has unnecessarily dragged this OP Bank tothis litigation without any deficiency made out against it. As there is no whisper of any role/involvement of OP Bank in the phase of processing the Insurance Policy, the nameof the answering OP Bank is entitled to be exoneratedand case against answering OP Bank isliable to bedismissed with costs.

36. That the present complaint is not maintainable against the answering OP Bank at all and is liable to be dismissed as no cause of action for filing this case has ever arose, in favour of the Complainant against OP Bank. Hence the present complaint is nothing but/an abuse of the process of law, and as such the same isliable to be dismissed, with exemplary cost.

37. That the insurance company and the OP Bank are two separate business entities and the OP Bank being only the financier cannot be heldliable for the act of the other.

38. That in a) Prem Nath Motors Limited Vs. Anurag Mittal (2009 16 Supreme Court Cases 274), it was held that Section 230 of the Indian Contract Act, 1872 categorically makes it clear that an agent is not liable for the acts of a disclosed principal, subject to a contract to the contrary. b) In M/s. Vivek Automobiles Ltd. Vs. M/s. Indian Inc., (Civil Appeal No(s). 2333-2334/2004), decided by the Supreme Court on 28.10.2005, the same view was taken. c) Further, in Midland Overseas Vs. CMBT Tana (AIR 1999 Bombay 401), where it was held that "in circumstances where the principal is disclosed and has been impleaded, no action would lie against the agent. d) In Virender Khullar vs American Consolidation Services Ltd. &Ors. (Appeal No. 4861 of 2012), the Hon'ble Apex Court confirmed that "defense under Section-230 of Indian Contact Act, 1872 is available in the cases under the Consumer Protection Act, 1986, by the agents of the principal with whom the complainant had the agreement".In view of the above judgments, this OP Bank cannot beheld liable for any deficiency in service. Hence, OP Bank cannot be held liable for any deficiency inservices.

39. That the complainant has not demonstrated with any documentary evidence supporting his contentions that the OP Bank is connected with the issuance of impugned Insurance Policy or its subsequent actions including Insurance claim processing or repudiation and hence even for the sake of argument by no stretch of reasoning the provisions of the Consumer protection Act, 2019 alleging deficiency of service could be invoked in the instant case against the OP Bank. Hence the instant complaint case deserves to be dismissed with costs against the OP Bank.

40. That the documents relied upon by complainant do not show any role of OP Bank in the issue involved and hence casts a cloud of doubt about the locus standi of the complainant and also the genuineness of the allegations made against the OP Bank by the Complainant in the present consumer complaint case. Thus, the complaint is liable to be dismissed with costs.That if any prayer as envision is granted to the Complainant, then it will set a bad precedent and OP Bank would needlessly be dragged to endless litigations even where the documents are glaringly inconsistent with the allegations contained in complaint, proving all allegations to be an afterthought.

41. That, the entire contention of the complainant is a distorted representation of facts as well as a false and fabricated story against OP Bank for the transaction done with the Opposite party no.1 independently. The nature of grievance pertains to some cancellation/rejection of benefits of a Health Insurance policy of the complainant and OP Bank is not an Insurance Company and the Complainant never paid the OP Bank any insurance premium nor any charges towards any insurance service and neither AXIS Bank had issued any insurance policy to the Complainant. Hence any grievance in respect of rejection of the benefits of a Health Insurance policy can only be raised against and commented upon by the Opposite Party no.1.

42. That Axis Bank Ltd and Aditya Birla Health Insurance Company Ltd are two separate legal entities and the complainant's grievances cannot be entertained by the Bank.That the OP Bank as such has no part to play in the present proceeding sand/or was never a service provider to complainant in as much as subject matter of instant complaint is concerned i.e. Rejection of the benefit so fan Health Insurance Policy. The Answering Opposite Party isnota “necessary party" or a "proper party" for the purposes of the adjudication of the dispute at hand. That the complaint does not qualify the ingredients of avalid"Consumer Dispute" as against OP Bank as envisaged in section 2(7) of the Consumer Protection Act, 2019 and no unfair trade practice or deficiency in service can be established against OP Bank, as such the complaint is liable to be dismissed on this ground alone.

43. Further, the OP Bank has been impleaded without disclosing any reason in complaint which in no manner satisfies the conditions laid under Order 1 Rule 10(2) of the Code of Civil Procedure, 1908 and/or provision of Laws related to Consumer Protection Act which deals with Customer Service Provider Relationship as appears from the allegations contained in Complaint. A perusal of the above provision discloses that the Courts are empowered to delete/strike any person who is nota "necessary party" and whose presence before the Court may not be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit.

44. That the OP Bank is not a necessary party to the case as did not render any service to the Complainant which is deficient. It is also pertinent to mention here that Axis Bank Ltd. as mentioned in the complaint has been improperly and unnecessarily added and impleaded in the complaint and that the Complainant had no privity of contract with OP Bank Limited in as much as subject matter is concerned. Further representative of the bank has been wrongly impleaded by the complainant as the said representative of the OP Bank mentioned in the complaint is not the employee of the Opposite Party no.1 nor In-Charge of the Opposite Party no.1. Therepresentative of the bank mentioned in the complaintis the employee of the OP Bank having employee ID No. 135087.

45. That the Opposite PartyNo.1 & 2 are two separate legal entities having different trade/business. Hence OP Bank cannot be held liable and/or cannot be sued for the latches, if any on part of the OP No. 1. It is submitted that a legal fiction must be confined to the object and purport for which it has been created. Hence complaint is liable to be dismissed on this very ground itself against OP Bank and name of OP Bank arrayed be struck off from the records of instant complaint case.

46. That burden of proof is on the complainant and there is no scope of presumptions to be drawn against OP Bank. That OP Bank never adopted any unfair trade practice and there is no deficiency of service on the part of the answering OPs.That the complainant has not come to the Ld. Commission with clean hands and has concealed the true and correct material facts from the Hon'ble Court. Hence the said complaint is liable to be dismissed with exemplary costs on this ground alone. That the said complaint is speculative in nature. It has been filed by the complainant with an ulterior and oblique motive for making illegal gain and to harass and to cause wrongful loss to answering OP Bank.

47. The preliminary objections, stated hereinabove, are of vital nature and go to the very root of the case, which may be decided and adjudicated first. That the OP Bank is a separate legal entity and the Health Insurance policy was purchased by the complainant independently. It is denied by the OP bank that the Health Insurance Policy was introduced to the complainant nor any quarries were made by the OP Bank while filling form of Health Insurance in question.The complainant and the   opposite party no.1 are bound by the terms and conditions entered into by them and hence no role to play with regard to any disputes between them. Even assuming but not admitting that the OP Bank is the selling agent of the Opposite party no.1, the OP Bank cannot be made held liable for any disputes as an agentis not liable for the acts of a disclosed principal, subject to a contract to the contrary as persection 230 of the IndianContract Act,1872.

48. The OP Bank denies that the borrower signed insurance documents as per OP Bank policy. The OP Bank submits that the borrower chose to opt for an insurance policy provided by HDFC Ergo and the OP Bank is not privy to that arrangement. It is clarified that the OP Bank is not an insurance company nor the principal in issuing the insurance plan. It is also stated that no commitments or assurance are provided as alleged had been given to the complainant by the OP Bank. The OP Bank merely facilitated the payment of one time premium from the funds disbursed to the borrower.

49. That the OP Bank has no role in repudiation of the insurance claim of the complainant and the complainant is confusing the OP Bank and Insurance Company i.e., Opposite Party No.1.That insurance policy is an arrangement between the complainant and the insurance companyi.e.,Opposite   Party   No.1   and   the   parties   are   bound   by   the   terms   and   conditions   of   the   insurance policy.

50. That under the circumstances enumerated above, the dispute is one between the complainant and the insurance company i.e., Opposite Party No.1 and OP Bank states that it is not responsible for, nor is it liable to pay any compensation for the loss suffered, if any, as alleged, by the complainant.Presumptions against OP Bank cannot be drawn in view of the facts placed before the Ld. Commission which clearly establishes mala fide of complainant to unnecessarily drag OP Bank in the instant case without any rhyme and reason.

51. That the instant complaint petition is liable to be dismissed with exemplary costs and the relief sought for cannot be granted to the complainant as claimed in view of the facts and available records which do not support the claim of complainant as against answering.

52. The OP No. 2 therefore most respectfully prayed to dismiss this instant complaint with costs and/or pass such further order/orders as deems fit and proper fit and for the interest of justice, equity and fair play.

53. Points for determination:

1. Whether the opposite party caused deficiency of service as provided U/S 2 (11) of the Consumer Protection Act, 2019?
2. Whether the complainant is entitled to get compensation from the Opposite parties?

54. Arguments and submissions by the learned counsels:

On 22.12.2023, both the parties, i.e., the learned counsels for the complainant and the Opposite Parties made their final hearing.

55. Ms. Likha Moriam, the learned counsel for the Complainant by submittingwritten statement reiterated the statements made in her plaint and submitted that the complainant is entitled to get compensation or entire amount that incurred during the medical treatment at Apollo Hospital. And the opposites parties are due to pay theadequate compensation for causing mental, physical and other financial lost and harassment to the complainant. Therefore, the complainant most respectfully prayed that the instant case be passed in favour of the complainant. And may Pass such order(s) as deemed fit and proper in the facts and Circumstances of the case.

56. By filing the written argument, the learned counsel of the OP NO. 1 also reiterated the statement made in his plaint and submitted that the Policy is void on account of misrepresentation and non-disclosure of material fact. That the rejection ofthe claim of the Complainant is only due to suppression of material facts pertaining to the hypertension and associated medical conditions. That the Insurance Company has not committedany deficiency of service as alleged or otherwise. Therefore, the OP No.1 respectfully prayed to dismiss the above complaint and thereby render justice.

57. The OP No. 2 by filing its written argument reiterated the statement madeinits plaint and further submitted thatthe opposite party no. 2 is only an agent of the Opposite Partyno. 1 and as per section 230 of the Indian Contract Act, 1872 an agent cannot personally enforce nor be bound by, Contracts on behalf of Principal. And also re-mentioned about some case laws. Therefore, on the strength of those judgments and the facts a mentioned, the OP Bank stated that it cannot be held liable for any deficiency in service.

58. Findings and reasons for decisions:

We have given our sincere consideration on the entire evidences on record both oral and documentary and other materials like annexures produced by both the complainant and the Opposite Parties.Now, let us see, how far the complainant has been able to prove her case against the opposite parties on the basis of material available on record.

59. Section 2 (11) and 35 of the Consumer Protection Act, 2019, being relevant are reproduced below:

60. Section 2 (11) of the Consumer Protection Act, 2019, gives the definition of the word Deficiency, which says, “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes-

1. Any act of negligence or omission or commission by such person which caused loss or injury to the consume; and
2. deliberate withholding of relevant information by such persons to the consumer.

61. Section 35 of the Consumer Protection Act, 2019 speaks of manner in which complaint shall be made. — (1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by—

1. the consumer, —

1.  to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or agreed to be provided; or
2. who alleges unfair trade practice in respect of such goods or service.

62. Now, let’s see the first point for determination as to whether the opposite party caused deficiency of service as provided U/S 2 (11) of the Consumer Protection Act, 2019.
63. We have carefully gone through the available materials on records. The case of the Complainant is that complainant purchased Health Insurance Policy from the Opposite party No. 1 through opposite party No. 2 and paid Rs 16,899/- towards premium for the Health Insurance for the period of one year from 25.03.2021 to 24.03.2022. That the complainant before the expiry of the said policy paid the second premium and accordingly the complainant’s policy was renewed by opposite party no.1 and valid till 24-03-2023.

64. That during the subsistence of this policy, the complainant was admitted in Apollo Hospital, at Delhi on 12.05.2022 and since complainant’s policy covered for cashless medical treatment, so complainant approached the health insurance help desk at Apollo Hospital and claimed for cashless medical treatment facility from the opposite part no.1 by attaching insurance certificate.  But to the dismay of the complainant his claim was denied by the opposite party No.1 on the ground for non-disclosure of Hypertension diseases vide letter dated 12.05.2022. The opposite party no.2, who was the selling agent of opposite party no.1 while filing up the form for complainant’s health insurance policy made some queries but no question on hypertension was asked by the opposite party no.2 and inadvertently left the column blank on the matter of hypertension issue and opposite party No.1 without any objection accepted the said defective policy. Hence, this complaint is filed against the opposite parties for negligence and deficiency in service due to which the complainant suffered mental and physical harassment.

65. On the other side opposite party No.1 denied all the allegation made in the complaint and contended that complainant did not disclose any illness at the time of purchasing the policy in 2021 or at the time of renewing the said policy in 2022. As per the terms of the insurance policy, it is duty of the complainant to provide with all the pre-existing disease and not to suppress any fact.Whereas on the scrutiny of the complainant‘s medical document which is in hand written supplied by medical authorities it was found that complainant had been suffering from Hypertension since 10 years before hospitalization and opposite no.1 to substantiate  such contention relied on document annexed as Annexure C series of complaint. And as such the claim of the complainant was rejected only due to the suppression and misrepresentation of pre-existing diseases which were crucial to the policy.

66. After hearing the arguments of the parties, it is observed that complainant purchased the Health insurance police from opposite party no.1 through opposite no.2 for the period of one from 25.03.2021 to 24.03.2022. And the same policy of complainant was renewed by opposite no.1 on the payment of second premium which was extended to 25.03.2023 which is not disputed by either of the parties. The repudiation of the complainant’s claim by opposite party no.1 vide letter dated 12.05.2023 was on the ground of non-disclosure of hypertension diseases at the time of taking the Insurance policy.

67. On going through all the records available with us it is seen that complainant prior to the taking of this policy had been suffering from hypertension since 10 years which is reflected in Annexure C (Series) of complaint & in the discharge summary document issued by the registrar of Indraprastha Apollo Hospital, New Delhi denoting the history of present illness written as known case of hypertension in Annexure F (Series) of complaint. Therefore, taking this into consideration we hold that complainant deliberately suppressed the material fact while purchasing the policy. The complainant knew of his medical condition while taking the policy and complainant deliberately suppressed his medical condition. The suppression of material fact about the pre-existing disease or medical condition by complainant would undoubtedly be breach of insurance contract which was of utmost good faith.

68. As per para 11 of the case of the Oriental Insurance Co. Ltd Vs. Jigar Hasmukh Soni decided byState Consumer Disputes Redressal Co. Ltd. on 29.04.2023, it was held that as per the guidelines issued by the IRDAI in connection withthe pre-existing disease, “the pre-existing disease means any condition for which diagnosed by physician within 48 months to the effective date of the policy issued by the insurer…”

69. Further in para 12 it has been held that, “if any disease or illness suffered by the insured within 48 months from the inception of the policy then ad then only it can be considered as a pre-existing disease”. And it is an admitted fact that the complainant is suffering from the hypertension disease not only within 48 months from the inception of the policy, but from last 10 (ten) years, which can very well be called as pre-existing disease.

70. It has also been found in annexure A of the complainant in the second page under section IV under the heading Pre-existing disease, that the  same has been kept blank. Whereas the complainant is suffering from hypertension disease for the last 10 (ten) years as supported by the medical prescription.

71. That the OP No. 1 has also guidelines which says that, “Insured Person must disclose all pre-existing disease/s or condition/s before buying a policy. Non-disclosure may result in claim not being paid”.

72. "Section F. Duty of Disclosure & Fraudulent Claims -The Policy shall be null and void and no benefit shall be payable in the event of untrue or incorrect or incomplete statements, misrepresentations or non-disclosure of any material particulars in the proposal form, personal statement, declaration, claim form declaration, medical history on the claim form and connected documents, or any material information having been withheld by You or any one acting on Your behalf, under this Policy. You further understand and agree that we may at our sole discretion cancel the Policy and the premium paid shall be forfeited by us".

73. Moreover, the discharge summary and final medical records of the Complainantshowed that the complainant underwent treatment for 'Pyrexia of Undetermined origin'and 'Essential Hypertension'. From medical literature Hypertension is the major cause for Pyrexia.

74. That in case of Union of India [(2010) 14 SCC 38: (2011) 4 SCC (Civ) 889], it was held that if a litigant does not come to the court with clean hands, he is not entitled to be heard and indeed, such a person is not entitled to any relief from any judicial forum.

75. Therefore, taking into the consideration as stated above with the citations as reported, we decide all the points for determination together and held that the opposite parties caused no deficiency of service as provided U/S 2 (11) of the Consumer Protection Act, 2019 and the complainant is not entitled to get compensation from the Opposite Parties as he did not disclosed his pre-existing disease.

O RD E R

Therefore, this Commission after hearing all the learned counsels, perusing of the documents and annexures submitted by the parties, held that it is found that the complainant could not make a case of deficiency of service by the Opposite Parties to the complainant.

Hence, the complaint is dismissed being devoid of merit,without any cost.

With this order, the case is disposed of on contest.

Given under our hand and seal of this Forum on 19^thday of Jan’ 2024.

  (Miss Deepa Yoka)                                              (Mr. Tarh Loma)

Member                                                           Member

(Smt. Jaweplu Chai)

     President