Orissa

Cuttak

CC/92/2015

Shekhar Agrawal - Complainant(s)

Versus

Apollo Munich Health Insurance ompant L T D - Opp.Party(s)

B M Mohapatra

19 Jun 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.92/2015

 

Sekhar Agarwal,

At:Jaunlia Pati,PO:Telenga Bazar,

P.S:Purighat,Dist:Cuttack.                                                            … Complainant.

 

                Vrs.

 

1.        Apollo Muhich Health Insurance Company Ltd.,

Corp. Office:10^th Floor,Tower-B,Building No.10 DLF

Cyber City,Phase-II,Gurgaon,Haryana.

 

 

2.        Apollo Muhich Health Insurance Company Ltd.,

Apollo Hospital Complex,Jubliee Hills,

                   Hyderabad

 

3.       Branch Manager,Apollo Munich Health

Insurance Company Ltd.,Unit-3,2^nd Floor,

501/1741/1845,Kharvel Nagar,

Janpath,Bhubaneswar.                                                               … Opp. Parties.

 

Present:              Sri Dhruba Charan Barik,President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:     04.09.2015. 

Date of Order:  19.06.2017.

 

For the complainant        :       Sri B.M.Mohapatra,Adv. & Associates.

For the O.Ps.1,2 & 3.       :       Sri S.Tripathy,Adv. & Associates.

 

Sri Bichitra Nanda Tripathy, Member.

                The case is against deficiency in service on the part of O.Ps.

1. Shortly the case is that the complainant insured the health of himself and of his parents namely Kailash Agrawal & Nirmala Agrawal with the O.Ps vide Policy No.150200/11001/1000419276 dt.10.09.2013.(Annexure-1). As per terms and conditions of the said policy the complainant and his parents were entitled to get the benefit towards the expenditure incurred for their treatment, hospitalization and medicines up to Rs.6,00,000/- in the approved Hospitals of the O.Ps or in any other hospital of the local area with prior permission of the O.Ps within five days before hospitalization.  During the validity period of such insurance policy, father of the complainant met with an accident at his residence at Jaunliapati,Cuttack on 02.01.2014 and the left upper arm was fractured and he sustained multiple injuries for which he was hospitalized and a sum of Rs.1,54,911/- was spent for his treatment.  Before the treatment, the complainant contacted the local office and the local office gave a clearance to release the expenses of hospitalization of the father of the complainant.  The claim forms were duly filled up and submitted for release of the medi-claim amount.(Annexure-2).  The total amount paid to West-End Hospital,C.D.A,Cutack was aRs.1,54,911/- against which the bills, vouchers, discharge certificate were annexed.(Annexure-3).  The details of insurance policy is also annexed (Annedure-4).  Before payment of the premium, the Health Insurance Policy of the O.Ps was filled up by Kavita Chandak, the authorized agent of the O.P and required medical checkup was also done. (Annexure-5).  Even after submission of the claim bills no payment was made to the complainant and the said claim file is closed by the O.Ps. (Annexure-6).  The complainant submitted a request letter to the O.Ps for settlement of the said claim.(Annexure-7).  The O.Ps have also renewed the said policy but not yet paid the claimed amount.(Annexure-8).  The complainant finding no other way has taken shelter of this Hon’ble Forum.  He has prayed to direct the O.Ps to pay a sum of Rs.1,54,911/- towards hospitalization charges, Rs.1,00,000/- for harassment towards non-payment of such amount, Rs.50,000/- towards mental agony, Rs,.25,000/- towards unfair trade practice and Rs.50,000/- towards legal expenses.  Thus he has claimed a total sum of Rs.3,79,911/-.
2.  Vide their written brief dt.28.04.2016 the O.Ps have stated that a Policy No.150200/11001/1000419276 was issued to the complainant as per proposal form received for the purpose for the period from 07.09.2013 to 06.09.2014. (Copy of proposal form vide Annexure  O.P.2).  From the copy of medical examination report it was noted that the body mass index of the complainant’s father and mother was on higher side which was applied in the policy and was accepted by the complainant (Annexure O.P.3).  The said policy was also renewed for further one year for the period from 19.09.2014 to 18.08.2015.  The terms and conditions of the policy is annexed.(Annexure-  of O.P.4).  On 05.02.2014 the complainant filed a claim on behalf of his father for a sum of Rs.1,85,337/-/(Annexure- of O.P.5).  The complainant had not submitted certain documents which were required for settlement of the claim and the O.Ps vide their letter dt.27.02.2014 requested the complainant for supply of such documents. (Annexure- of O.P.6).  The complainant did not supply such documents for which he was reminded by the O.P vide letter dt.11.03.2014 and 18.03.2014.(Annexure-O.P.7).  On 11.04.2014 the complainant supplied some of such documents excluding all X-ray reports, pass port size photograph, treating doctors certificate for past history duration of Diabetes mellitus when diagnosed for 1st time and 1st consultation papers.(annexure-O.P.8).  O.P again requested the complainant to supply such documents on 21.04.2014 which the complainant failed to supply and the O.P intimated the complainant to close the claim of the complainant on 24.05.2014.(Annexure-O.P.9).  From the medical documents as supplied by the complainant it was found that the father of the complainant was suffering from diabetes mellitus since last 27/30 years.  Therefore, the O.P demanded the medical documents especially X-ray report and treating doctors certificate for past history duration of the DM when diagnosed for the first time and first consultation which the complainant did not provide.
3. We have gone through the case in details, perused the documents minutely as submitted by the complainant and as well as by O.Ps, we have heard the learned advocates from both the sides at length and have observed that the complainant had made a insurance policy with the O.P vide No. 150200/11001/1000419276 for himself, his father and his mother @ Rs.2,00,000/- each which was valid from 07.09.2013 to 06.09.2014.  The said policy was made basing on the proposal forms as submitted by the complainant.  On 02.01.2014 the father of the complainant met with an accident at his residence and suffered from fractures and multiple injuries.  He was hospitalized and a sum of Rs.1,54,911/- was spent for his treatment.  He lodged the claim with the O.Ps for Rs.1,85,337/-.  It was also learnt from the records submitted by the complainant and as well as by the O.Ps that father of the complainant was suffering from Type-2 diabetes Mellitus since last 27/30 years and such material facts were not disclosed at the time of making such policy with the O.Ps.  The O.Ps repeatedly asked the complainant to submit copy of treating doctors certificate for  past history duration of DM, when diagnosed for the 1^st time and first consultation which the complainant failed to submit for which the O.Ps closed the claim vide their letter dt.24.05.2014.  The complainant reiterated that at the time of taking the policy the health of all the members including father of the complainant were checked at the authorized clinic and they were found suitable for the policy but it is settled law that a contract of insurance is uberrimae fidei  meaning an agreement in utmost good faith and a person seeking insurance is duty bound to disclose all material facts relating to his health because the health itself is the risk involved in the policy of insurance.  From the copy of records produced by the  complainant and also by the O.Ps it is clear that the father of the complainant was suffering from diabetes since last 27/30 years which amounts to concealment material facts relating to pre-existing a disease i.e. diabetes.  The complainant also failed to prove that he was not suffering from diabetes since last 27/30 years.  The Hon’ble Supreme court in Mithoolal Nayak Vrs. LIC of India AIR 1962 SC 814 has held that an insurance policy is an agreement in utmost good faith between the insurer and insured and any breach of this agreement by suppressing material facts on the part of insured would result in repudiation of the claim by the insurer.   The Hon’ble Supreme court while dismissing the appeal of the wife of the deceased assured vide judgment given in Satwant Kaur Sandhu Vrs. New India Assurance Company Ltd.[(2009) 8 SCC 316] has held as under:-

“ A medi-claim policy  is a non-life insurance policy meant to assure the p9licy-holder in respect of certain expenses pertaining to injury, accidents or hospitalizations.  Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured.  Thus, when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within the knowledge.  It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not.  Of course obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known.  The obligation to disclose necessarily depends upon the knowledge one possesses.  His opinion of the materiality of that knowledge is of no moment”.(para-18)

The term ‘material fact’ is not defined in the Insurance Act,1938 and, therefore, it has been understood and explained by the courts in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk.  Any fact which goes to the roof of the contract of insurance and has a bearing on the risk involved would be “material”.  The Insurance Regulatory and Development Authority(Protection of Policy holders’ Interest) Regulations,2002 defines the word “material” to mean and include all “important”, essential and “relevant” information in the context of guiding the insurer to decide whether to undertake the risk or not(para22 and 24)

Thus, in contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a “material fact”.  If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form.  Any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance” (Para-25). 

The observations made by the Hon’ble Apex court as stated above is fully applicable to the current case since the insured did not disclose regarding his disease i.e. he was suffering from diabetes since long when he took the policy and hence the contract of insurance is vitiated by concealment of material information in a fraudulent manner.

                                                                                ORDER

                Basing on the facts and circumstances as stated above and to meet the ends of justice we have observed that the complainant failed to prove deficiency in service on the part of O.Ps, hence the case is dismissed.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 19^th day of June,2017 under the seal and signature of this Forum.

 

                                                                                                                                       (Sri B.N.Tripathy )

                                                                                                                                             Member.

                                                                                                                                     (   Sri D.C.Barik  )

                                                                                                                                             President.

                                                                                                                                               

                                                                                                                          (Smt. Sarmistha Nath) 

                                                                                                                Member(W).