Delhi

StateCommission

A/562/2015

MAX BUPA HEALTH INSURANCE CO. LTD. - Complainant(s)

Versus

AJAY MEHTA - Opp.Party(s)

01 Jul 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :01.07.2019

Date of order : 11.07.2019

FIRST APPEAL NO.562/2015

In the matter of:

 

Max Bupa Health

Insurance Company Ltd.,

B-1, I/2, Mohan Cooperative

Industrial Estate,

Mathura Road,

New Delhi-110044.……Appellant

Versus

Ajay Mehta,

S/o. Shri V.K. Mehta,

R/o. D-69, Naraina Vihar,

•  

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The OP has come in appeal against order dated 23.07.15 passed by District Forum (Central) in CC No.13/2014 allowing the complaint.
2. The case of respondent herein/ complainant before the District Forum was that he took a medi-claim policy from M/s. New India Insurance Company on 18.09.04 which was continuously renewed without break for 10 years. He renewed family  floater medi-claim policy no.311201341203000000031 for Rs.5 lakhs covering  himself, his wife and two children from 18.06.12 to 17.06.13 by paying premium of Rs.26,990/-. The appellant herein/ OP before the District Forum ported the business in his accounts in accordance with portability guidelines issue by IRDA. The appellant took copy of the expiring policy, previous year details and a premium cheque of Rs.28,634/-. It issued policy for the period 18.06.13 to 17.06.14 for a sum insured of Rs.35 lakhs. It issued policy confirming that pre existing conditions were waived of and waiting period was none.
3. On 27.08.13 the respondent visited emergency of Sir Ganga Ram Hospitalised with history of chest pain for 14 days and was hospitalised. He was diagnosed to be suffering from TB type-2 diabetes, urinary tract infection and was treated for the same. Cashless facility was already denied by the appellant on the ground of non disclosure of facts. The reimbursement claim was rejected on the plea of suppression of the material information regarding past medical history of type-2 diabetes.
4. The appellant filed a WS pleading that respondent has misrepresented and concealed material facts. At the time of porting the policy, he was required to fill a proposal form wherein he was supposed to mention any pre existing disease. Prescription dated 30.07.13 and 09.09.13 depict that the appellant was known case of type-2 diabetes  since 2006 which was concealed by the appellant. As per Clause 5 (g) (3) of the insurance policy non disclosure of material facts was  to result in cancellation of policy. The respondent played fraud upon the appellant by withholding material information which would have a direct effect on the insurer’s decision whether to insure or not.
5. After going through the material on record and listening the arguments the District Forum observed that sole question for consideration was whether appellant was justified in repudiating the claim on the ground that respondent had not disclosed that he was suffering from type-2 diabetes milletus since 2006. The District Forum found that respondent took medi-claim policy firstly on 18.09.04 and had been renewing the same without any break, year after year for period of ten years. He was entitled to benefit of portability as per IRDA guidelines. He was not suffering  from diabetes  at the time of inception of the policy.
6. The District Forum further relied upon decision of this Commission in Oriental Insurance Company vs. Mahinder Singh (Dr.) IV 2008 CPJ 511 in which meaning and concept of `disease’ and ‘pre existing disease’ was explained. In para-6 of the said judgement it was held that a person comes to know about  the medical terminology of the particular disease when he lands in the hospital and undergoes treatment or operation. If a person had suffered heart attack or got treatment for a particular disease say 10-15 years before and had been leading healthy and normal life, he is not supposed to disclose the factum of having undergone treatment or operation for particular disease 10-20 years before. It is  only the disease which is existing at the time of obtaining the policy or in the near proximity of it which can be said as pre existing disease.
7. In para-7 of the judgement it was held that pre exiting disease for the purpose of medi-claim insurance policy means a serious derangement  of health or chronic deep seated disease frequently that is ultimately fatal for which the insured must have been hospitalised or operated upon in the near proximity of obtaining the medi-claim policy. Such a disease should not be existing at the time of taking  policy but also should have existed in the near proximity. It was further held that malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like are normal wear and tear of  modern day life  which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre existing disease for repudiation of the insurance claim. It was also held that disease which can be  easily detected by subjecting the insured to basic tests like blood test, ECG etc., the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be  branded as disease.
8. The above last mentioned observations are in the context of fact that  such disease could be detected by the insurance company by getting the insured  medically examined before issuing a policy. Insurance company can not take advantage of its omission to ensure before issuing a medi-claim policy whether a person is fit to be insured or not.
9. The impugned order goes on to say that IRDA issued guidelines on 09.09.11 under the head portability. The same lays down that portability means right accrued to an individual health under insurance company (from cover) to transfer the account by the insured for pre existing conditions and time bound exclusions, if the policy holder chooses to switch to one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy had been maintained without any break.
10. In the instant case it is not in dispute that complainant was enjoying a policy without any break from 2004. The counsel for complainant argued before me in hearing during appeal that clause 4 (a) of the terms and conditions at 179 defines exclusion. It lays down pre existing conditions under which insurer will not be liable. It lays down that insurer is not liable until 48 months of continuous coverage have elapsed since inception of first policy. In other words it means that after four years no exclusion is permissible on the ground of pre existing disease. Here the complainant allowed to be suffering from diabetes type-2 since 2006. A claim for treatment in 2013 is much much beyond 48 months. The argument appears to be sound.
11. The counsel for the complainant also submitted that according to OP, prescription slip dated 30.07.13 and 09.09.13 show that complainant was a known case of type-2 diabetes since 2006. Both prescription slip are after the commencement of the policy on 18.06.13. The proposal form must have been filed before commencement of policy. In such situation the complainant can not be blamed for concealing a fact which he himself didn’t know.
12. On the other hand the counsel for appellant drew my attention towards prescription slip dated 30.07.13 which is Exbit-B copy of which is at page-114 of appeal. It shows that complainant was a case of type-2 diabetes since 2006. Same is a fate of another prescription slip dated 09.09.13 copy of which is at page-115 of appeal. I have already dealt with these prescription slip in the preceeding para.
13. The counsel for appellant relied upon decision of Hon’ble Supreme Court in Civil Appeal No.3944 of 2019 titled as LIC vs. Manish Gupta decided on 15.04.19 to make out that contract  of insurance involve utmost good faith. The counsel for appellant also wanted to make out from the above decision that it is not for the proposer to determine whether the information  sought for is material for the purpose of policy or not. That’s true. But the same must be in near proximity and must have been in the mind of the insured as laid down by this Commission in the case of Mahinder Singh (Supra). In the same decision reference has been made to previous decision of Hon’ble Apex Court in Satwant Kaur Sandhu vs. New India Assurance Company Ltd. (2009) 8 SCC 316 in which is was held that obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. I find that the present case falls in this category where the complainant did not know that he was patient of diabetes-2.
14. The counsel for the appellant also relied upon decision of Hon’ble Supreme Court in appeal (Civil) 5322/2007 titled as P. C. Chacho vs. Chairman Life Insurance Corporation decided on 20.11.07. In para 21 it was held that every material fact must be disclosed, otherwise there is good ground of recession of the contract. The said preposition is undisputable but is not applicable in the case in hand.
15. Appellant also relied upon decision of Hon’ble Supreme Court in Suraj Mal Ram Niwas Oil Mills Pvt. Ltd. vs. United India Insurance Company Ltd. (2010) 10 SCC 567. That deals with breach of terms of insurance contract and is not relevant. Counsel for the appellant did not miss to cite decision of Hon’ble Supreme Court in Civil Appeal No.4261/2019 titled as Reliance Life Insurance Company Ltd vs. Rekha ben Naresh Bhai Rathore decided on 24.04.19. In para-31 of the judgement previous decision of division bench of Mysore in V.K. Srinivas Setty vs. M/s. Premier Life and General Insurance Company Ltd AIR 1958 Mysore 53 was approved. The said decision held that a person who affix his signature to a proposal which contains a statement which is not true, can not ordinary escape from the consequences arising there from by pleading that he choose to sign the proposal containing such statement without either reading or understanding it. There can be no quarrel with that the said preposition. But that is not applicable in the case in hand.
16. To sum up, I find that respondent can not be blamed of having concealed diabetes which he was suffering from 2006, at the time of commencement of policy in 2004 or at the time of portability of the policy in 2013. Diabetes is a common disease and its non disclosure can not be said to be material. There is no infirmity in the order of the District Forum. The appeal fails and is dismissed.
17. Copy of the order be sent to both the parties free of cost.
18. One copy of the order be sent to District forum for information.
19. File be consigned to record room.

 

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)