District Consumer Disputes Redressal Commission, Hooghly
PETITIONER
VS.
OPPOSITE PARTY
Complaint Case No.CC/16/2021
(Date of Filing:-19.01.2021)
- Sri Manash Bhaduri, residing at
276/197, N.S. Road, 2nd floor, Sarkarpara, P.O. Seoraphully
Dist. Hooghly, Pin:-712223
- Bajaj Allianz General Insurance Company Ltd.
Represented by its Managing Director,
Regd. and H.O. at G. E. Plaza, Airport Road, P.O. Yerwada
Pune, Pin:- 411006
- Bajaj Allianz General Insurance Company Ltd.
Represented by its Managing Director
-
Behind Weik field IT Park, P.O. Viman Nagar,
Pune, Maharastra-411014
…..Opposite Parties
Before:-
Mr. Debasish Bandyopadhyay, President
Mr. Debasis Bhattacharya, Member
Mrs. Babita Chaudhuri, Member.
-
Final Order/Judgment
DEBASIS BHATTACHARYA:- PRESIDING MEMBER
Being aggrieved by and dissatisfied with the service extended by Bajaj Allianz General Insurance Company Ltd., in general (hereinafter referred to as OP) in the matter of lodging of a claim for reimbursement of medical expenses related to the medical treatment and surgery of his wife, refusal of corresponding cashless treatment on the ground of pre-existing disease and subsequent indifference towards the Complainant’s letter dtd.07.09.2020 stating inter alia his claim and grievance, the instant case has been filed by the complainant, u/s 35 of the Consumer Protection Act 2019.
In the instant case both the OPs belong to the same organization i.e. the same insurance company having their offices in Pune, Maharashtra
The fact of the case is as follows.
The complainant, primarily being a holder of a medical Insurance Policy, Group Health Plan of the OP Insurance Company, effective from 23.02.2017, renewed the same from time to time and the last renewal was for the period 23.02.2020 to 22.02.21.
The said policy covered the Complainant himself, his wife and son and the sum insured was Rs.10,00,000, with an annual premium of Rs.15,257/-.
However, reportedly, the wife of the Complainant had to be admitted to a hospital on 07.06.2020 for surgery of uterine fibroid, in pursuance of the advice of her concerned physician.
The Complainant claims to have submitted all relevant documents related to the treatment of his wife along with the policy documents to the OP Insurance Company at the time of admission, for cashless treatment.
However the OP Insurance Company by a communication dtd. 10.06.2020 expressed their inability to extend the facility of cashless treatment on the ground of pre-existing disease.
On 11.06.2020, the patient was discharged from the hospital with the relevant discharge summary and the medical bill was to the extent of Rs.78,371/-. The Complainant was compelled to pay the said bill from his own pocket to the hospital.
Subsequently the Complainant sent a letter to the OP Insurance Company on 07.09.2020 presenting his claim and ventilating his grievances but the OP Insurance Company was unresponsive. Here it appears that the claim was presented before the OP Insurance Company through a letter only.
Replies from both the OP were awaited as on the date of filing the instant petition.
The complainant claims to have suffered immense mental agony, anxiety harassment and financial loss due to willful negligence, inaction and deficiency of service of the OP Insurance Company.
Having been agitated over the attitude of the OP Insurance Company, the complainant submits a prayer before this Commission to impose direction upon the OP to reimburse the claim to the extent of Rs.1,13,711/- i.e the medical expenses comprising of the bill raised by the hospital and expenses incurred for different medical tests done at different diagnostic laboratories at pre-admission and post release stage, Rs.3,00,000/- as compensation for sufferings, mental agony, anxiety and harassment, Rs.20,000/- towards cost of the case and to pass any other order or orders as the Commission may deem fit and necessary to meet the ends of justice.
The Complainant along with the Complaint petition has annexed photocopies of certain corroborating documents viz. 1) the policy documents, 2) the communication of the OP Insurance Company denying the cashless facility, 3) letter sent to the OP Insurance Company by the Complainant expressing his grievances and 4) relevant medical documents and bills.
Evidence on affidavit filed by the Complainant is almost replica of the Complaint petition. However in the concluding part of the evidence on affidavit the Complainant, in retaliation to the OP’s allegation that there was non-disclosure of pre-existing medical ailments of his wife and that the claim was manufactured and fabricated with mala-fide intention and for wrongful gain, denies the fact that there was any such non-disclosure.
Here, the Complainant highlights another queer aspect of the issue. The petitioner while admitting the fact that his wife had to be hospitalized with ‘fibroid uterus with right ovarian cyst’ prior to inception of the policy, claims that after the discharge from Nehru Memorial Techno Global Hospital in that occasion on 12.02.17, one staff of the OP Insurance Company’s office called him and insisted and requested him to purchase the said policy. It is further claimed that at that juncture, in spite of disclosure of the ailment of his wife over telephone he was assured that he would not have to face any problem in case of future claims. Thus the policy was purchased online. The Complainant here puts stress on the issue that the said call and conversation was recorded by the office of the OP and the said call and conversation should have been verified by the OP.
In view of the above discussion and on examination of available records it transpires that the complainant is a consumer as far as the provisions laid down under Section 2(7) (ii) of the Consumer Protection Act 1986 are concerned.
The complainant is a resident within the district of Hooghly.
The claim preferred by the complainant does not exceed the limit of Rs.50,00,000/-Thus, this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.
The issues related to the questions whether there was any deficiency of service and whether the complainant is entitled to get any relief, being mutually inter-related, will be taken together for convenient disposal.
Defense case
The OPs belonging to the same organisation have contested the case by filing written version, evidence on affidavit and brief note of argument denying inter-alia all the material allegation leveled against them.
In the written version, initially the OP Insurance Company in a routine manner decorates the complaint petition with adjectives like ‘not maintainable’, ‘premature’ ‘luxurious’, ‘speculative’, ‘mala fide’ etc.
Besides, it is also claimed that the above petition is not within jurisdiction of the Commission.
However no specific reason or clarification is shown for application of these adjectives and the claim.
Firstly no non-maintainability petition has been filed by the OP. Secondly so far as the provisions of Section 34 of the Act are concerned this Commission has apparent jurisdiction to try this case.
However the OP Insurance Company in their representations points out that there was non-disclosure of material facts regarding the medical history of the wife of the Complainant. It is further clarified that the wife of the Complainant was diagnosed with ‘Fibroid Uterus with right ovarian cyst’ vide discharge summary of Nehru Memorial Techno Global Hospital dtd.12.02.2017and the same was not disclosed while purchasing the policy.
In this connection the OP Insurance Company brings attention of the Commission to the clause 11 under section B of the Insurance Policy contract to which both the parties are strictly bound.
The said clause states “The policy shall be void and all premium paid thereon shall be forfeited to the Company, in the event of misrepresentation, mis-description or non-disclosure of any material fact”.
The OP Insurance Company along with their evidence on affidavit has annexed the copies of discharge summary of Nehru Memorial Techno Global Hospital, exhaustive terms, conditions and limitations of the medical insurance policy and relevant medical documents and diagnostic reports of the wife of the Complainant pertaining to the period just prior to the inception of the policy and related to treatment undergone in Nehru Memorial Techno Global during that particular period.
As regards the claim of the complainant that some staff of the OP Insurance Company insisted him over phone to purchase the policy the OP insurance states that they follow no such online call procedure.
The OP insurance Company further brings to the light that in the proposal form, the Complaint’s reply was in negative to the query that whether he or any of the family members to be covered have/had any health complaints/met with any accident in the past and have been taking any treatment/hospitalization.
The authenticated excerpt from the proposal form is annexed in this regard.
In this connection the OP Insurance Company states in their brief notes of argument that a contract of insurance being fundamentally governed by the principle of uberrima fidei postulates that there must be complete good faith in the past of the insured.
Apart from the above, OP Insurance Company relies on the judicial pronouncement of the Hon’ble Apex Court in the case of life Insurance Company of India vs. Manish Gupta reported at 2019 SCC online SC 593, wherein, dealing with a similar set of facts the Hon’ble Apex Court held as under:-
“14. A contract of insurance involves utmost good faith. In Satwant Kaur Sandhu v. New India Assurance Company Ltd. this court has held thus:
Thus it needs little emphasis that when an information on a specific aspects asked for in the proposal form, as assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his 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 h 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”.
Reliance is also made in the appellate order of the Delhi SCDRC in the case of Rajiv Jain vs. National Insurance Company Ltd. in which it was pronounced as under.
“Relying upon the dicta of the prevailing law on this aspect, the insurance contract is dominated by the legal maxim ‘the utmost good faith’. The observance of utmost good faith by the parties is vital to a contract of insurance. Insurance is called an UBERRIMA FIDEI contract because the parties are required to conform to a higher degree of good faith than in the general law of contract. The non-disclosure of a material fact by the insured whether fraudulent or innocent has the same effect of avoiding the contract. A stringent duty is imposed on the insured to provide all the material facts that might influence the decision of the insurer”.
Decision with reason:- Materials on records are perused. A meticulous scanning of the backdrop of the case reveals that the complainant purchased one medical insurance policy through online procedure on 23.02.2017 and the same was renewed from time to time. Thus the policy was valid during the period 23.02.2020 to the midnight of 22.02.2021.
However the wife of the Complainant was admitted into a hospital under the name Zenith Super Speciality Hospital on 07.06.2020 and underwent a surgery on 08.06.2020.
However the request for cashless hospitalization was turned down on the ground that the preauthorization request mentioned the duration of fibroid uterus with right ovarian cyst since 12.02.2017 which was a pre existing one and was not disclosed in the proposal form.
Further request for reimbursement of medical expenses at post discharge stage was also not considered as it was detected on enquiry that on 12.02.2017 the Complainant’s wife was admitted into another hospital under the name Nehru Memorial Techno Global Hospital with a complaint of increased menstrual bleeding and the diagnosis was ‘Fibroid Uterus with right ovarian cyst’. In that hospital also she underwent surgery under the medical term myomectomy and right ovarian cystectomy.
She was discharged on 15.02.2017.
In the instant case the dates are noteworthy. The most conspicuous aspect of the case is that the policy was purchased just eight days after the discharge from Nehru Memorial Techno Global Hospital.
In spite of that, the Complainant in the proposal form did not disclose the reality and stayed negative while filling up the respective column.
Primarily, while submitting the Complaint petition before this Commission also the Complainant did not disclose the matter related to the first hospitalization of his wife, prior to the inception of the policy.
No hard evidence is submitted in support of the claim that on the date of discharge i.e. on 15.02.2017, from the said hospital, some office staff of the OP insisted him over phone to purchase the policy.
Even if it is taken for granted that there was any such insistence, the Complainant cannot shrug off the responsibility of disclosing the material facts while applying for the policy.
Thus, the events mentioned above in chronological order clearly indicate at blatant non-disclosure of material facts.
In view of the above the Commission is of the view that there was apparent absence of observance of ‘utmost good faith’ so far as the insured person is concerned. Thus deficiency of service on the part of the OP Insurance Company cannot be established.
Hence it is
ORDERED
that the complaint case no.16/2021 be and the same stands dismissed on contest. However there is no order as to costs.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post for information and necessary action.
The final order will be available in the website www.confonet.nic.in.
