HON’BLE MR. AYAN SINHA MEMBER This is a complaint u/s 35 of the CP Act, 2019 made by Md. Azem Khan alleging unfair trade practice against OP No.1, 2 & 3 and accordingly prayed for a direction to refund the claims for Rs.3,51,426 i.e. (Rs.2,32,351 + 1,19,075)/- and to pay Rs.1,50,000/- compensation for mental harassment and agony along with litigation cost of Rs.50,000/-. FACTS IN BRIEF That the Complainant is a Nominee cum Policy holder of Health Insurance Policy No.11626979, wherein his mother was also insured under the said policy with client ID No.54395023. The said insurance policy was in continuation from 2016 upon payment of Rs.28,506/- for availing the medical benefits of his insured mother also. As per the Rules of the Health Insurance Policy, the insured company were to send doctors for detection of the insured person on the basis of pathological test and etc. as alleged. Thereafter, Complainant’s mother was admitted to Fortis Health Care, Kolkata on 02nd August, 2020 and was discharged on 12th August, 2020 after which a bill amount of Rs.2,32,351/- was raised by the concerned hospital. But the cashless facility of the said bill amount was ignored and repudiated by the insurance company without giving any cogent reason or satisfactory explanation as alleged. The Complainant has also stated that previously his mother being the insured person was earlier admitted on 09th June, 2019 at CMC, Vellore and that time also his specific insurance claimed amount of Rs.1,19,075/- was also declined by the OPs citing pre-existing diseases i.e. cough as alleged but subsequently it was renewed by the OPs and was valid up to 23rd September, 2020 upon payment of Rs.29,695/-. Since both claims were rejected by the OPs, Complainant sent legal notices on 14.09.2020 & 22.09.2020 to the MD & CEO, Corporate Manager and Regional Manager Kolkata, Care Health Insurance Limited. Thereafter, he approached the insurance Ombudsman for ventilating his anguish to which an award was given by the Ld. Insurance Ombudsman directing the OPs to refund of Rs.23,756/- against which the Complainant prayed to reconsider the value as Rs.29,695/- instead of Rs.23,576/-. Thus, being deprived of his legitimate claim and illegally cancelling on the basis of previous pre-existing history, the Complainant filed this instant case before this Commission praying for certain reliefs as discussed above. Notices were served upon the OPs. OPs contested this case by filing written version stating, inter alia, that the decision of rejection of claim was correct and in accordance with their policies terms and conditions. In their written version they have also cited certain judgments in support of their contention. The averment of OPs is that the Complainant mother was insured for a sum amount of Rs.4,00,000/- from 28.08.2016 to 27.08.2017. Although the said policy no.11626979 was renewed, but it was rebooked by the insurance company with a policy coverage from 23.09.2017 to 22.09.2018 as the cheque issued by the Complainant was dishonoured. Subsequently, the said insurance policy was again renewed from 2019 – 2020. They also stated that earlier Complainant was admitted to Christian Medical College Vellore Association, Vellore from 09.02.2019 with a complaint of dry cough which was later diagnosed with Exacerbation of Asthma and Diabetes Mellitus. They also averred that as per the admission form of CMC Vellore dated 09.02.2019, the insured person was diagnosed with DM, Hypothyroidism and was having dry cough since six months and the insured person i.e. his mother and was prescribed with MDI (Metered Dose Inhaler) Salbutamol for treatment of Asthma and Minimal Traction Bronchiectasis. It is also alleged by the OPs in their written version paragraph no.20 that the policy of the Complainant was cancelled on 20.05.2020. So, they rejected the Complainant’s claim as per the IRDAI Regulations 2017, since, there was non-disclosure of material facts of pre-existing diseases and thus prayed to dismiss this instant complaint with costs. Both parties filed Evidence, questionnaire and replies thereto. Brief Notes of Arguments are also filed by both the parties. POINTS FOR CONSIDERATION - Whether there was any unfair trade practice on the part of the OPs as alleged?
- Whether the Complainant is entitled to the relief(s) as prayed for?
DECISION WITH REASONS All the points are taken up together for the sake of brevity and convenience. We have carefully perused all the documents and the annexures available with the record. It is an admitted fact that the said insurance policy no.11626979 was issued by the OPs Religare for Rs.4,00,000/- against payment of premium amount of Rs.23,750/-in favour of the Complainant’s mother was valid from 24th September, 2019 to 23rd September, 2020. It is also noticed on perusal of the documents that although the OPs have mentioned that due to dishonour of the cheque the said policy was rebooked with coverage period from 23/09/2018 to 22/09/2019. On careful scrutiny of the policy it is noticed that it was a continuous policy from 28th August, 2016 was valid from 24.09.2019 to 23.09.2020 and so the contention of the OPs stating that the policy was cancelled, does not arise. It is an admitted fact that the Complainant’s mother was also admitted on 9th February, 2019, at Christian Medical College, Vellore. through the discharge summary of the said hospital, it is clearly mentioned that she was diagnosed with various ailments along with cough variant asthma. It is also found from the discharge summary dt. 12.08.2020 of the Fortis hospital, she was admitted with complaints of fever, cough etc. So, it is clearly understood that the Complainant’s mother had a past history of cough variant asthma which was not disclosed by the Complainant while renewing the policy. Going through the questionnaires no.11 of the OPs and the replies the Complainant we found it was well within the knowledge of the Complainant that his mother was diagnosed with Asthma which he did not mention in the proposal form while renewing the policy for the period of 24.09.2019 to 23.09.2020. On perusal of the copy of policy, Clause 4.1. (3)regarding pre-existing disease, “Claims will not be admissible for any medical expenses incurred for hospitalization in respect of diagnosis /treatment of any pre-existing disease only 48 months of continues coverage had elapsed since the inception of the first policy with the Complainant.” So, on going through the materials on record including the documents produced by both the parties and the contention of the Complainant we find there was suppression of material facts/non-disclosure of materials facts in respect of the health of Complainant’s mother at the time of obtaining the policy for the period of24th September, 2019 which was valid till 23rd September, 2020. OPs have cited certain Judgments in their brief notes of argument in support of their contention for Pre-existing disease. “In Reliance Life Insurance Company and Others Vs. Rekha Ben Naresh Bai Rathore” Hon’ble Supreme Court held that the failure of insured to disclose the pre-existing disease or to disclose the policy of insurance obtained earlier and the proposal form entitled the insurer to repudiate the claim under policy. “In Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. (2009) 8 SCC 316 Where the Hon’ble Supreme Court of India that the expression “material fact” is to be understood to mean as any fact which would influence the judgment of a prudent Insurer, in deciding whether to accept the risk or not. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions is proposal form. In this regard we have relied upon the Judgment (2008) 1 SCC 321 P.C. CHACKO AND ANOTHER Vs. CHAIRMAN, LIFE INSURANCE CORPORATION OF INDIA AND OTHERS where Hon’ble Apex Court was pleased to hold “misstatement by itself was not material for repudiation of the policy unless the same is material in nature. But, a deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law and the policy can be repudiated if obtained with fraudulent act.” In the instant case also the Complainant knowingly his mother was diagnosed with Asthma did not disclose the said disease at the time of renewal of the said policy in 24.09.2019for which the OPs have repudiated the claims. So, considering the facts and circumstances of the case and also in the light of the aforesaid discussions of the Hon’ble Apex Court, we are of the considered view that there was deliberate suppression of facts as to the health condition of Complainant’s mother at the time of obtaining the policy which the OPs have discovered in investigation of the reports for processing of the claims, arose due to hospital expenses, we opined that the instant case is liable to be dismissed. Accordingly, it is ORDERED That the instant case be and the same is dismissed on contest. With no order as to costs. Dictated and corrected by me Member | 
