Delhi

East Delhi

CC/967/2013

VINEET JAIN - Complainant(s)

Versus

APOLLO MUNICH - Opp.Party(s)

26 Apr 2018

ORDER

          DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT of Delhi

              CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092  

 

                                                                                                   Consumer complaint no.      967/2013

                                                                                                   Date of Institution              31/10/2013

                                                                                                   Order reserved on               26/04/2018        

                                                                                                   Date of Order                       02/05/2018                                                                                     

 

In matter of -

Mr Vineet Jain, 34 year, (deceased)    

s/o- Sh Nirmal Kumar Jain

 

Through –Legal Heirs as-

 

i-Mrs. Mansi Jain, w/o- Late Mr Vineet Jain

ii-Smt. Veena Jain, Mother of  Late Mr Vineet Jain

iii-Baby Saanvi Jain (minor), d/o- Late Mr Vineet Jain

 

R/o- A- 107, GF, Surya Nagar

Ghaziabad, UP 201011…………………………………….……..….Complainant

                              

                                      Vs

The Manager

Apollo Munich Health Insurance Co. Ltd.

204 Laxmi Deep Building

District Centre, Laxmi Nagar, Delhi 11092…….….…………..Opponent

 

Complainant’s Advocates……………..J C Gupta & Co.,  Advocates

Opponent’s Advocate……………………Gurmeet Bindra & Asso., Advocates  

 

Quorum                                              Sh Sukhdev  Singh        President

                                                              Dr P N Tiwari                 Member

                                                              Mrs Harpreet Kaur       Member                                                                                             

 

Order by Dr P N Tiwari  Member –

 

Brief Facts of the case                                                                                                 

Complainant took ‘Optima Restore Insurance Coverage mediclaim policy for himself, his wife and his minor daughter at the age of 34 years vide policy no. 110105/11121/6000013700 for a sum insured Rs 3 Lacs after paying premium Rs 8281.31/- having its tenure from 21/03/2012 to 11/02/2013 (Ex CW/Anne. A).

During the continuity of the said policy, complainant met road side accident on 07/10/2012 and sustained fracture in his left elbow and got admitted in Max Health Care Hospital at Patpargunj, Delhi on 18/10/2012 and was discharged on 21/10/2012. As cashless request was denied by the OP so treatment bill of Rs 1,26,540/- was paid by him. Thereafter he submitted all original treatment papers to Family Health Plan TPA (Ex CW/Anne. B). it had been stated that OP sent reply on 22/10/2012 that complainant had not disclosed correct facts about his health conditions when policy was taken (Ex CW/ Anne.C). Finally claim was repudiated by OP on 10/11/2012 under “Pulmonary Thrombo Embolism” as pre existing ailment as non disclosure of health condition in his policy proposal form.    

Complainant stated that there was no proximity of Pulmonary Thrombo Embolism with the accident of elbow and his genuine claim was rejected under flimsy ground. Complainant then filed his complaint before Insurance Ombudsman on 15/11/2012 vide case no. 438822 and again made complaint on 12/12/2012 vide complaint no. 453642 (Ex CW/Anne. D). Thereafter complainant received policy cancellation letter with refunded premium amount Rs 8282/ which was in cashed under protest (Ex CW/Anne. F). Complainant sent legal notice on 17/08/2013 for paying his claim amount of Rs 1,26,540/-(Ex CW/Anne. H). When no reply received complainant again sent a reminder legal notice for claim reimbursement on 03/09/2013 (Ex CW/Anne.I). When complainant did not receive any reply, filed this complaint on 31/10/2013 and claimed revoke of his policy from date of cancellation with payment of treatment bill Rs 1,18,258/- with 12 % interest from 07/10/2012. He also claimed compensation of Rs 5 lacs for physical harassment and mental agony and litigation cost Rs 50,000/-.

It  was  stated  that before  issuing  of notice by this Forum, complainant died on 10/11/2013 (Ex CW/Anne. K) So his legal heirs filed an application for impleadment of Legal heirs, which was allowed and they were brought on record.  

 

OP submitted written statement and denied all the facts as wrong and incorrect as alleged in complaint. It was stated that complainant had filed two complaints before the Ombudsman at Delhi and Rajasthan on 04/04/2013 and were yet to decide by the Ombudsman, hence there was no cause of action ever arisen against OP, still this complaint was filed on all misleading facts to gain monetary benefits through this Forum illegally. Such act of the complainant was contrary to the Order 10 of the CPC which was as under—

“No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or any court beyond the limits of India established or continued by the Central Govt. and having like jurisdiction or before the Supreme Court.”

 

It was stated that Optima Restore Floater Policy was issued on the basis of good faith from 21/02/2012 to 20/02/2013 for a sum of assured Rs 3 Lacs vide Ann.OPR3, but complainant did not disclose about his health facts (as material facts) about Pulmonary Thrombo-embolism in his policy proposal form no. 6100128824 Ann.OPR2 where complainant did not mention/tick “YES” to column no. ii of SN 6 of policy proposal form under the head “Medical and Life style information” and ticked “NO” and put his signatures on Declaration form on page 26 of proposal form on 21/02/2012 where he suffered Pulmonary Thromboembolism in Jan. 2012 and patient was on Tab. Warfarin written in prescription of Shanti Mukund Hospital on dated 08/10/2012 earlier and remained admitted in Fortis Escorts hospital from 17/01/2012 under diagnosis “ Pulmonary Embolism” (Ex OPW1/8 & 8A.

 

During proper investigation, OP got all the previous treatment documents of pre-existing ailment as PTE and thereafter claim was repudiated under the clause of Non disclosure of Material Facts. OP took reference of citation Maya Devi vs LIC of India in RP 2091/2007,NC, and PC Chacko & others vs Chairman LIC of India, AIR 2008 SC 424, where it was laid on the provision of the Section 45 of the Insurance Act said that “Proposal can be repudiated if fraudulent act discovered”. It was also laid down that “parties were bound by warranty clause mentioned in policy containing declaration of insured that in all the relevant facts were correctly declared by him”.

So non disclosure and incorrect statement of material facts were material to OP for repudiation of his claim.  OP  also  took  reference  of  “Mithoolal  Nayak  vs LIC of India, AIR 1962 SC 814,

Haji Ahmed Yar Khan vs Abdul Gani Khyan, AIR 1937 Nag 207, United India Insurance Co. Ltd vs Subhash Chandra in RP 469/2006, NC where it was laid down that policy is issued on Good Faith only and if non disclosure of material fact was found, repudiation would be justified and contract would be void ab-initio. Material facts were stated in LIC of India vs Smt Satwant Kaur Sandhu in RP 3138/2006, NC.

It was stated that complainant was suffering from Acute Pulmonaty thromboembolism due to Pulmonary Hypertension, Chronic Alcoholic Liver Disease since Jan. 2012 and policy was taken from 21/02/2012 where age was less than 35 years and policy seeker had clear knowledge of all his previous ailments and were taking medicines after remaining admitted in Hospital and complainant did not fill all such material facts correctly in the policy proposal form under clause 6 & 7. So complainant did not disclose in the policy proposal form at the time of signing the policy proposal form and thus violated the fundamental law of contract. So, the entire process was void ab-initio and there was no contract with OP. Hence this complaint be dismissed with cost.

 

The complainant filed his rejoinder to the written statement submitted by OP and denied all replies filed. It was stated that all his facts and contents were correct and true in his complaint and there was no proximity to the fracture of elbow with Pulmonary thromboembolism, so OP had taken flimsy ground to repudiate the genuine claim by adopting unfair trade practice for non paying his claim. Complainant also submitted his evidence by way of affidavit and affirmed himself on oath that all the evidence in complaint were correct and true to his knowledge and were on record. He also stated that his previous ailment stated by OP was incorrect and declined for cashless approval. OP had intentionally repudiated his genuine claim and terminated the policy.  Thus, his claim be given and policy be restored.

 

OP submitted evidences on affidavit through Mr. Sameer Bhatnagar, Vice President Legal, working with OP, affirmed on oath that policy was issued after complainant filled his policy proposal form (RW1/2) with policy terms and conditions (Ex RW1/3) which had been on record and policies were always issued based on information given by the policy seekers and on good faith. It was revealed that complainant had not disclosed about Pulmonary Thromboembolism which he suffered (in Jan 2012) prior to policy inception (in Feb 2012) and did not disclose about Pulmonay Thromboembolism which was due to Pulmonary Hypertensions so violated terms and condition of the said policy, so his cashless was rejected (Ex RWE1/4 &5) and then policy was also terminated. Thus rejection was justified based on terms and condition of the policy. It was submitted that the said policy was issued on the facts submitted by the complainant in his policy proposal form and he had intentionally hidden all the material facts before the present OP by not disclosing material facts pertaining to his ailments.

 

OP stated that before cancelling the policy, a notice was given to the complainant as per IRDA guidelines under Section 7 on dated 22/10/2012 (Ex RW1/6) and all the queries and letters written by complainant were timely replied (Ex RW1/10). It was also stated that after policy was terminated, the premium was refunded by OP through cheque dated 23/01/2013 and was en cashed by complainant vide certificate dated 05/09/2013 (Ex RW1/11 & 12). So their termination was justified present OP do not admit any liability towards any claim, compensation or revival of the said policy.        

 

OP filed written synopsis and taken on record. To justify repudiation and termination of policy, OP submitted citations where repudiation of claim and termination of policy by OP was justified based on the terms and condition of the policy. The citations were as under—

1. Prem Kumar Chabra vs LIC of India, RP 3405/2017, NC.
2. Kunwar Pal vs Sahara India Life Insurance, RP 3182/2012,NC
3. Balwinder Kaur (deceased) through LRs vs LIC of India, CA 7969/2010 SC
4. National Insurance Co. vs Sehtia Shoes, CA 1602/2008,SC,
5. M/s Hindustan Motors Ltd. vs Amardeep Singh Wirk, LPA 204/2009 & CM 6638/2009,AIR 2009, SC & etc.

Arguments were heard from both party’s counsels and after perusal of file, order was reserved. Before coming to the conclusion of this case, we framed three clarifications as under –

1. Whether claim rejection was justified by OP under policy terms and conditions?
2. Whether complainant is liable for claim and revival of policy.
3. Status of Claim in reference to citations submitted by OP.

In reference to above clarification we have also seen about the ailment “Pulmonary Thrombo Embolism in Pulmonary Hypertension and Proximity of embolism in Fracture cases as complainant’s main defence was that there was NO proximity of embolism in Fracture of elbow in accident case.

Pulmonary embolism (PE) - is a thrombotic disorder. In PE, a blockage occurs in the pulmonary artery preventing blood flow to the lungs. Pulmonary embolism (PE) is a thrombotic disorder. In PE, a blockage occurs in the pulmonary artery preventing blood flow to the lungs.The pulmonary artery is the blood vessel that carries blood to the lungs.

This blockage is called an embolism (or more than one emboli). The embolus can be made of a fat droplet, an air bubble, or most commonly, a blood clot (thrombus).

Usually, a blood clot forms in the deep veins of the body, named a deep-vein thrombosis (DVT). This blood clot travels in the bloodstream, lodging in the pulmonary artery and causing an embolism.The reduced blood flow to the lungs can cause debilitating symptoms including shortness of breath and can be life-threatening.

(Ref. – Text book of Practice of Medicine & Text book of Essentials of Practice of Medicines by Davidson).

In Fracture cases—

Whenever there is injury to the blood vessels due to trauma (fracture) results accumulation of arterial and venous blood and clot formation occurs very fast in those persons who are having thrombotic disorder. The whole clot or a part of clot gets easy entry in the broken veins and get lodged in heart or lungs results in heart attacks or severe breathing problem and becomes life threatening condition. This problem is only controlled by taking tab Warfarin lifelong.

Here in this case, complainant was taking tab. Warfarin which he had not disclosed in his policy proposal form.  So, thromboembolism has direct nexus with fracture (elbow) and stating wrong facts by complainant has been established.    

1- Whether claim rejection was justified by OP-

After careful examining the policy proposal form and medical tests reports on record and complainant’s status, we noticed few things as –

Policy proposal form was not filled by the complainant (by seeing the signatures on record) and merely filling “NO” in all the columns showed that complainant had not been  asked properly by the person whosoever form was filling, whereas complainant had put his signatures on all the documents and stated in his affidavit that all facts about his previous claims pertaining to the ailments (Pulmonary Hypertension) were told to OP. Hence complainant hidden his material facts intentionally before OP and rejection after proper investigation and filing previous treatment documents justified repudiation as non disclosure of material facts in the policy proposal form, thus he was not entitled for his claim.

2-Whether complainant is liable for claim and revival of policy  -

Non disclosure of Material Fact as pre existing Pulmonary Thromboembolism and continuous taking Warfarin tab established that complainant had intentionally hidden material facts before the insurer/OP at the time of taking policy by filing policy proposal form.  OP had rightly rejected the claim and terminated the policy besides refunded the premium amount which was en cashed by the complainant.  It is clear that no insurance co. will prefer medical tests below 45 years until any ailments are not disclosed by the policy seeker. So complainant is not entitled for revival of policy. 

3- Status of Claim in reference to citations submitted by OP?       

After going through the law laid down in the citations on record, the rejection was justified based on the terms and conditions of the policy pertaining to the non disclosure of the material facts of PTE as pre existing for which all the treatment documents were on record submitted by the OP before rejecting the claim.

 The law laid down in above submitted citations clearly speaks about strict adherence of policy terms and condition and any fraudulent act is found, claim rejection will be justified and termination is to be done by Insurer. So filed citations are applicable in this case.  

Hence, we come to the conclusion that complainant has failed to establish deficiency in the services of OP in denying passing of claim and terminating the policy besides refunding his premium amount which too was en cashed by the complainant. So his complaint is dismissed. There shall be no order to cost.  

Copy of this order be sent to the parties as Regulation 18 of the Consumer Protection Regulations 2005 (in short the CPR) and file be consigned to Record Room under Regulation 20(1) of the CPR.  

 

(Dr) P N Tiwari  Member                                                                         Mrs  Harpreet Kaur  Member                                                                                                                         

                                      

                                                      Sukhdev Singh  President