1. Sri Shasanka Kundu filed this Complaint against the HDFC ERGO Health Insurance Ltd. and its agent Mr. Arun Chandra Karmakar under Section 12 of the CP Act for reimbursement of medical expenses of Rs. 1,97,574/- along with compensation of Rs. 10,00,000/-, litigation cost of Rs. 50,000/- and Rs. 2,00,000/- for pain and agony with the following averments:-

The Complainant purchased a health insurance policy on 16.05.2008 from Apello Munic Health Insurance Company Ltd. and ported the policy to the HDFC ERGO Health Insurance Ltd. in May 2012 (i.e. the Op No. 1) . He thereafter felt cardiac problem and rushed to Rabindranath Tagore International Institute of Cardiac Science where angioplasty surgery was done between 05.12.2013 and 09.12.2013. The said medical institute realized Rs. 19,7574/- as costs of treatment. When approached, the insurer refused to pay the same stating that the policy was repudiated on 05.12.2013 due to concealment of the history of previous ailment and treatment at the time of taking insurance policy. The complainant then filed this case for the aforesaid reliefs asserting that the said repudiation of policy was illegal and not binding upon him.

2. The OPs have contested the case by filing written version stating inter alia that the insured underwent Lithotripsy in 2006 and he had a history of Renal Calculus in 2004 and 2006 which were not unfolded in the proposal form in 2008. It is the case of the Ops that the aforesaid fraud was subsequently detected and the policy was consequently repudiated on 05.12.2013. They have sought for dismissal of the case claiming that the complainant is not entitled to any reliefs.

In view of the aforesaid facts and circumstance we think that it would be necessary to decide in this case (a) whether the complainant is entitled to any reliefs as sought for or not.

3. It is not in dispute that the complainants angioplasty surgery was performed in between 05.12.2013 and 09.12.2013 at Rabindranath Tagore International Institute of Cardiac Science at a cost of Rs. 197574/-. It is not in dispute that the Complainant had undergone Lithotripsy in 2006 for having a history of Renal Calculas in 2004 and 2006. It is also beyond dispute that the said history of ailment & treatment was not incorporated in the proposal form. Needless to say that concealment of such a material fact on the part of the insured at the time of entering into insurance agreement is a valid ground for repudiation of insurance policy in view of Section 45 of the Act.
4. Section 45(1) of the Insurance Act provides that no policy of life insurance shall be called in question on any ground whatsoever after expiry of 3 years from (i) the date of issue of policy or (ii) the date of commencement of risk or (iii) the date of revival of policy or (iv) the date of rider of policy – whichever is later. Section 45(2) of  the Act on the ground of fraud a policy can be called in question within a period of 3 years.
5. The Ld. Advocate for the Complainant has contended that said repudiation of the health insurance policy dated 16.05.2008 on the ground of fraud arising out of concealment of a material fact being done on 05.12.2013 can not be called in question. This is so because of Section 45 of the Insurance Act which provides for a term of 3 years for effecting repudiation. It is the contention of the Ld. Advocate of the Op. that the period of 3 years as prescribed under Section 465 would start to run from May 2012 when porting to his client was done and therefore the repudiation of policy which was effected on 05.12.2013 does not come in conflict with Section 45. According to him the complainant would not get any reliefs from this Commission.
6. Let us consider the aforesaid contentions. On 16.05.2008 the insurance policy was issued and by 17.05.2011 the period of 3 years had elapsed. The provisions of Section 45 of the Act appear to be absolute and unconditional. The plea of fraud arising out of concealment of material fact which was available to the insurer ceased to exist with effect from 17.05.20211. It is well settled that when anyone changes his health insurance policy from one insurance company to another he does not have to lose the benefits he has accumulated. Due to efflux of time the lacuna was cured and the insurance policy was free from defects when the complainant ported it to the Opposite party in 2012. The Op can not take now the plea of fraud. They were unjustified in rejecting the prayer of the complainant for reimbursement. The cancellation order recorded on 05.12.2013 is inoperative in Law. Therefore, the complaint would get an order for recovery of Rs. 1,97,574/- from the Op. In addition to the Op would pay a consolidated amount of rs. 1,00,000/- for compensation, litigation costs and pain & agony.
7. Hence it is ordered:-

That the case be and the same is allowed on contest. The Op No. 1 would pay to the Complainant Rs. 1,97,574/- with interest @ 9% per annum from the date of filing the case till realization within a period of 3 months hence. He will also pay Rs. 1,00,000/- within a period of 3 months failing which the amount will carry interest @ 9% per annum.

Let plain copy be given to parties free of cost as per CPR. 

Dictated and corrected by

[HON'BLE MR. Lakshmi Kanta Das]
PRESIDENT