PER:

Nidhi Verma, Member;

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12/13 against the opposite parties on the allegations that the complainant was earlier having a medi-claim policy bearing No. 295220098569390000 with HDFC Ergo for a continuous period of three years i.e. from 7.3.2013 to 6.2.2016 which was renewed from year to year and all the benefits of medi claim/ health insurance policy were carried forward with renewal of the policy from year to year on the or before due date. The complainant got the above said policy ported with opposite party No. 1 on 7.2.2016 through one Land Mark Insurance Broker Private Limited and the opposite parties renewed mediclaim/ health insurance policy for the complainant vide its policy No. AA00348195 and as such, the complainant paid the premium to the opposite parties and all the benefits of medical claim/ health insurance policy were to be continued and carry forward with the opposite parties. To the astonishment of the complainant, the opposite parties terminated the policy of the complainant on 26.2.2016 on the ground that Mrs. Poonam Chawla wife of the complainant is suffering from Insulin-Dependent-Diabetes mellitus and it was also alleged by the opposite parties that the complainant has lodged a claim with the previous insurance on 3.1.2014 and as such the opposite party No. 1 vide its letter dated 26.2.2016 terminated the insurance policy and also forfeited the premium paid by the complainant. The reason for termination of the above stated medi claim / health insurance policy of the complainant by the opposite parties in which entire family of the complainant was covered is nondisclosure of the information regarding the health of the wife of the complainant. The said allegations of Insulin-Dependent-Diabetes mellitus with regard to Mrs. Poonam Chawla are totally baseless , misconceived and have been leveled with malafide intentions to cheat the complainant and and grab his hard earned money paid in the shape of premium to the opposite party No. 1 and to deny the benefits of medi claims to the complainant and his family members. When the complainant received the termination letter dated 22.2.2016 from the opposite parties, he sent an email on 6.3.2016 to the concerned official namely Mr. Amrish of Land Mark Insurance Broker Private Limited and the complainant clarified that no member of his family has any diabetes related problem and no such claim as alleged by the opposite parties has ever been lodged or claimed by the complainant or his family members and requested him to do the needful. The copy of said email was also sent to opposite party No. 1. To further clarify the matter with the opposite parties, the complainant sent an email on 15.3.2016 to HDFC Ergo previous insurer of the complainant and sought clarification from them to the effect that whether any sort of claim has been made by him or his family members from 2013 to February, 2016. The previous insurer namely HDFC Ergo replied the above said email of the complainant on 17.3.2016 and clarified that as per their record policy No. 295220098569390000 is issued in the name of complainant from 7.2.2013 which expired on 6.2.2016 and the complainant has not made any claim in the above policy till 6.2.2016. The complainant forwarded the email received by him from HDFC Ergo to opposite party on 17.3.2016 and requested the opposite parties to restore the policy No. AA00348195. To the astonishment of the complainant, he again received an email dated 24.3.2016 from the opposite party to the effect that his wife is suffering from Diabetes mellitus and as such his policy stands terminated. Thereafter the complainant received another email dated 26.3.2016 from the opposite parties where they demanded the complainant to inform the previous insurer to provide the clarification to the opposite parties of previous claim via direct email to AMHI or on a letter head duly stamped with official seal with the complete details of issuing officer. The complainant again sent an email dated 5.4.2016 to the opposite party for clarification of his Optima Restore Policy number AA00348195. The complainant again sent reminder to know about the status of his policy on 6.4.2016 to opposite party. To astonishment of the complainant, he received an email dated 18.4.2016 whereby the opposite party informed the complainant that his mediclaim policy informed the complainant that his mediclaim policy having case ID No. 2165095 has been closed due to the reason non disclosure of history of Insulin-Dependent-Diabetes mellitus and as claim has been lodged with the previous insurer by the complainant on 3.1.2014 for Mrs. Poonam Chawla wife of the complainant. Feeling aggrieved by all the acts of opposite party by not restoring the policy in favour of complainant, the complainant sent legal notice cum reply through email to the opposite party the copy of which was also sent to Amrish Patel of Land Mark Insurance Broker Private Limited thereby calling upon the opposite parties to restore the policy with full benefits. The complainant has not received any reply to the above said legal notice from the opposite parties. The opposite parties have terminated the medi claim insurance claims of the complainant on flimsy and false grounds. The complainant by the said uncalled for act on the part of the opposite parties has suffered huge mental pain and agony at their hands. the wife of the complainant namely Poonam Chawla was detected Uterus Fabroid in the month of Feb 2017 and as such she was operated for the same from Max Hospital, Saket, New Delhi and a sum of Rs. 2,00,000/- was spent on her treatment by the complainant. the complainant has prayed that

(i)      The opposite parties may be directed to restore the insurance policy  of the complainant.

(ii)     The opposite parties may also be directed to pay a sum of Rs. 2 Lacs which the complainant has spent on the treatment of his wife Mrs. Poonam Chawla            

(iii)    The opposite party may be directed to pay Rs. 17,00,000/- towards compensation to complainant for causing him mental harassment, agony, inconvenience

(iv)    The opposite party be directed to pay Rs. 20,000/- towards litigation expenses.

(v) The opposite party may be directed to pay Rs. 50,000/- towards Traveling expenses and other related expenses.    

3        After formal admission of the complaint, notice was issued to Opposite Party and opposite party appeared through counsel and filed written version and contested the complaint by interalia pleadings that the insured willfully and fraudulently concealed the material facts regarding her health condition at the time of porting of the insurance policy form HDFC Ergo. The insured gave wrong answers to the questions of the personal statement submitted at the submission of the proposal for purchase of insurance product knowing  well that those were incorrect and she stated that she is in good health. Later on the previous insurer i.e. HDFC Ergo intimated to the opposite party with respect to the pending claim of the complainant with the said company and it was submitted that the insured Mrs. Poonam Chawla- History of Insulin dependent diabetes mellitus claim lodged with the previous insurer on 3.1.2014 but the complainant never disclosed the said fact of preexisting disease and pending claim and as such, upon receipt of the said information the opposite party terminated the said insurance policy obtained by the insured being based on concealment of material facts and violation of the terms and conditions of the insurance policy. She did not disclose this fact at the time of taking the insurance policy. The insured was prejudicial to the contents of ‘Uberrima Fides’ which is the basis of all insurance contracts. The fact of ill health and consequent treatment was well within the knowledge of the insured and she was a willful suppression to obtain insurance fraudulently. Had she disclosed history of her pre existing disease the insurance policy would not have been issued in favour of insured and hence the insured did not stick to the Principle of Utmost Good Faith. Therefore on the strength of above factors the competent authority of respondent rightly terminated the said policy U/s 5(u) of the policy and conveyed to the complainant vide letter dated 26.2.2016  as void ab initio. The complainant is debarred to file the instant complaint due to her own act and conduct. The complainant tried to defraud the opposite party and knowingly concealed the health conditions of the insured at the time of getting the policy ported and did not reveal regarding the pending insurance claim with the insurance company and pre existing disease and treatment taken which clearly reveals that mala fide intention of the complainant to grab the public money. The insured had willfully and wrongly with ill intention concealed the material facts regarding her health at the time of getting the policy ported and as such the said policy was declared null and void under the provisions of Indian Contract Act 1872 as well as per terms and conditions of the insurance contract. The insurance policy is a ‘De Novo’  contract i.e. it is a contract of Utmost Good Faith technically known as Uberrima Fides. The proposer(life assured) is bound to disclose everything affecting the Judgment of the insurer. In all the contracts of life insurance, the proposer is bound to make full disclosure of all the material fact and not merely those, which he thinks material, misrepresentation, non-disclosure or fraud in any document leading to acceptance of the risk automatically discharges the insurer from all liabilities under the contract. At the time of submission of the proposal and statement regarding health for obtaining the insurance policy, the life assured is bound to make full disclosure of all the facts relating to his/ her health but the insured deliberately gave false answers to the questions of the proposal form regarding previous health conditions. Had she mentioned her true state of health while answering questions of the proposal from the contract of insurance would have not been effected. /the complaint against the opposite party does not lie before this commission under the consumer Protection Act. The matter is also to be decided by a civil court at full scale at full scale trial requiring the complete pleadings and evidence according to law the summary trial under the Consumer Protection Act, 1986 is not the proper remedy for the complaints. The opposite party had rightly terminated the insurance policy obtained by the insured. The complaint is bad for mis joidner and non joined of necessary parties and causes of action. The complainant has not impleaded M/s H.D.F.C. ERGO and the Land Mark Insurance Broker Pvt. Ltd. as parties to the present complaint intentionally nor has made the insured i.e. his wife Smt. Poonam Chawla as party to the present complaint with malafide intention who are necessary and proper parties to the present complaint. Mrs. Poonam Chawla-History of Insulin dependent diabetes mellitus (claim lodged with your previous insurer on dated 3.1.2014) Thus as stated hereinabove, the insured willfully and fraudulently concealed the material facts regarding her health condition at the time of purchase of Insurance Policy.   The insured gave wrong answers to the questions of the personal statement submitted at the submission of the proposal for purchase of insurance product knowing well that those were incorrect and she stated that she is in good health. It is evident that the insured was prejudicial to the contents of “Uberrima Fides” which is the basis of all insurance contracts. The fact of ill health and consequent treatment was well within the knowledge of the insured and she was a willful suppression to obtain insurance fraudulently. Had she disclosed history of her pre existing disease the insurance policy would not have been issued in favour of the insured and hence the insured did not stick to the Principle of Utmost Good Faith. Therefore on the strength of above factors the competent authority of opposite party rightly terminated the insurance policy and conveyed to the complainant vide letter dated 26.2.2016.  The opposite party has denied the other contents of the complaint and prayed for dismissal of the same.

4        To prove his case, the complainant tendered in evidence his affidavit Ex. CW1/A, copy of Optima Restore Insurance Policy Ex. C-1, Copy of notice of termination Ex. C-2, copy of e-mail dated 6.3.2016 Ex. C-3, copy of the another e-mail i.e. acknowledgement of query dated 6.3.2016Ex. C-4, copy of the another e-mail dated 15.3.216 Ex. C-5, Copy of another e-mail dated 17.3.2016 Ex. C-6, Copy of e-mail dated 24.3.2016 Ex. C-7, Copy of e-mail dated 21.3.2016 Ex. C-8, Copy of e-mail dated 26.3.2016 Ex. C-9, Copy of the e-mail dated 5.4.2016 Ex. C-10, Copy of e-mail dated 6.4.2016 Ex. C-11, Copy of e-mail dated 27.4.2016 Ex. C-12, Copy of reply of legal notice e-mail dated 25.4.2016 Ex. C-13, Copy of discharge slip of Poonam Chawal Ex. C-14, Copy of advance receipt dated 12.4.2017 Ex. C-15, copy of another advance receipt dated 15.4.2017 Ex. C-16, copy of inpatient slip (summary) dated 15.4.2017 Ex. C-17, copy of inpatient bill (detail) dated 15.4.2017 Ex. C-18 and closed the evidence. On the other hands, Ld. counsel for the opposite party tendered in evidence letter dated 30.6.2016 Ex. OP1, copy of the letter dated 26.2.2016 Ex. OPO2, copy of the mail Ex. OP3 to OP8,, affidavit of Kavish Manager Ex. OP9 and closed the evidence.

5        We have heard the Ld. counsel for the parties and have carefully gone through the record.

6        In the present complaint, the complainant was earlier having a mediclaim policy bearing number 295220098569390000 with HDFC ERGO for a continuous period of 3 years that is from 7^th March 2013 to 6^th Feb 2016 which was renewed from year to year and all the benefits of Medi claim insurance policy was carried forward with the renewal of the policy from year to year. The complainant got the above said policy ported with opposite party number 1 on 7^th Feb 2016 through one landmark insurance broker private limited and the opposite parties renewed mediclaim insurance policy of the complainant vide its policy number AA00348195 and the complainant paid the premium to the opposite party and all the benefit of mediclaim insurance policy were to be continued and carry forwarded with the opposite parties. On dated 26^th February 2016 , OP   terminated the policy of the complainant on the ground that Mrs Poonam Chawla wife of the complainant is suffering from insulin dependent diabetes mellitus and it was also alleged by the opposite parties that the complaint has lodged a claim with the previous insurer on 3^rd January 2014 .After that complainant sent an email on 6^th March 2016 to the concerned official name Mr Amrish of landmark insurance broker private limited and the complainant clarified that no member of his family has any diabetes related problem and no such claim as alleged by the opposite parties have ever been lodged or claimed by the complainant or his family members and requested to restore the policy.(Ex C3) Further to clarify the matter with the opposite parties the complaint sent an email on 15^th March 2016 to HDFC Ergo previous insurer of the complainant and sort clarification from them to the effect that whether any sort of claim has been made by him or his family members from 2013 to 2016 (Ex C5). On dated 17^th March 2016 previous insurer namely HDFC Ergo replied in the email and clarified that as per their record policy number 295220098569390000 is issued in the name of the complainant from 7^th Feb 2013 which expired on 6^th February 2016 and the complainant have not made any claim in the above policy till 6^th February 2016 ( Ex C.6). Later on dated 18^th April 2016 the complainant got an email from the opposite party informed that is mediclaim policy having case ID number 2165025 has been closed due to the reason non disclosure of history of insulin dependent diabetes mellitus and claim has been lodged with the previous insurer by the complainant on. 3^rd January 2014 for Mrs poonam Chawla wife of the complainant . In the month of February 2017 ,the wife of the complainant was detected uterus Fibroid and she was operated for the same for Max Hospital  , New Delhi and the sum of Rs 200,000/ was spent on her treatment by the complainant. The complainant and all his family members were supposed to be covered for all the ailments and this amount of Rs 2lacs was the responsibility of OPs , as they illegally terminated the mediclaim policy of the complainant. OPs stated in their written version that  the Previous insurance company HDFC ERGO intimated to the opposite party  with respect to the pending claim of the complainant with the said company and it was submitted that the insured Mrs. Poonam Chawla history of insulin dependent diabetes mellitus claim lodged with the previous insurer on 3^rd January 2014, the complainant never disclosed the fact of pre-existing disease and pending claim and as such upon receipt of said information the opposite party terminated the insurance obtained by the insured. The insurance policy is a ‘De Novo’ contact i.e. it is a contract of Utmost Good Faith technically known as “ Uberrima Fides” . According to this doctrine the proposer who is one of the parties of the contract is presumed to have means of knowledge which are not accessible to the opposite party who is the other party to the contract therefore the life assured  is bound to disclose everything affecting the judgement of the insurance no matter howsoever unimportant it may seem to proposer.

7        In view of the above discussion and documents placed on record, we are of the consider view that in the present complaint we have two points :-

1. Is policy terminated by OP , based on reason given is genuine or not.
2. The amount spend by the complainant in the month of February 2017 , is he liable to get that claim or not.

As per O.P, the previous insurer i.e HDFC Ergo intimated them with respect to the pending claim of the complainant and it was submitted that the insured Mrs. Poonam Chawal -history of insulin dependent diabetes mellitus claim lodged with the previous insurer on 03.01.2014 but as an evidence OP failed to provide any sufficient documents from where they processed the above information instead the complainant provided the E mail ( Ex C 6) from HDFC ERGO stating that “ Policy number 295220098569390000 is issued on name- Anantdeep Singh with effect from 7^th February 2013 and the same is expired on 6^th February 2016 further you have not made any claim in above policy till 6^th February 2016.”  Further  the complainant send the links E Mail to OP and  requested them number of times to restore the policy but OP without any proof terminated the policy and on dated 18.04.2016 closed the decision by giving the same reason which was cleared by the previous insurer that the complainant never lodged any claim in between the policy. Thus as per the complainant evidence we are of the view that OP terminated the policy on baseless facts.

Secondly , about claim of Rs 2 lacs the complainant spent from his pocket in the month of Feb2017 for the treatment of his wife . All the bills are attached as Ex. C14 to C18. As we consider the point 1 as OP terminated the policy of the complainant on baseless as such there is negligence and utter deficiency in providing services. However , if the OP earlier restored the med claim policy of the complainant when he provided the E mail from the previous insurer then the issue of settling the claim would be different. As such the complainant is entitled for the expenditure incurred on the treatment of his wife in the month of Feb 2017 from Max Hospital, Delhi .

8        In view of above discussion we allow the present complaint and opposite parties are directed to pay the expenditure which is incurred upon the treatment i.e. Rs. Two Lacs to the complainant. The complainant has been harassed by the opposite parties for a long time. Therefore, the opposite parties are also directed to pay Rs 12,000/- ( Rs. Twelve Thousand  only) for mental harassment of complainant and Rs. 8,500/-(Rs. Eight Thousand Five Hundred only ) as litigation expenses. Copy of order will be supplied to the parties by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

22.09.2022