Order No.  15  dt.  19/12/2019

            The case of the complainant in brief is that the complainant for the purpose of visiting his son’s place who resides at Amsterdam, Netherland purchased air ticket and also approached Mr. Bharat Patwary an agent of the o.p. nos.1 and 2 insurance company to obtain insurance policy which is a pre-requisite for visa application. Complainant provided the photo copy of passport and other documents through the whatsapp to the agent and subsequently the complainant received insurance policies on payment of premium of Rs.1,668/- being policy name Travel Prime Individual Silver Policy. During the journey period the complainant felt restlessness / flatulence while at Delhi which persisted on reaching at Amsterdam thereafter complainant contacted his house physician and as per his advice the complainant took the medicines namely Ofloxacin and Ornidazole 12 hourly for 2 days but his condition deteriorated for which he took admission in emergency hospital namely AMC (Academisch Medisch Centrum) and he was treated there and diagnosed for acute pancreatitis. Since the said hospital was not equipped to handle such nature of treatment he was referred to another hospital where the complainant took admission on 12/05/2018. Because of the certain illness of the complainant the he had to cut short his stay at Amsterdam and left Amsterdam on 13/05/2018 and reached Kolkata on 14/05/2018. The complainant submitted claim form along with all the documents but the insurance company repudiated the genuine claim of the complainant vide letter dated 23/07/2018. Insurance company expressed their ground of repudiation that claim records available spoke of history of chronic kidney disease, anemia, hypertension, prostatomegaly, fatty liver and duodenal ulcer which is pre existing to the policy and as per the exclusion clause 3(14) the claim of the complainant was repudiated. On the basis of the said fact the complainant filed this case praying for direction upon the o.ps for reimbursement of the medical bills incurred by the complainant to the tune of Rs.2,13,842.87 with interest @12% and further complainant prayed for compensation of Rs.2.0 Lakh and litigation cost of Rs.50,000/-.            

            O.p. Insurance company contested the case by filing w/v and denied all the material allegations of the complainant. It was stated that the complainant is having a mediclaim Policy  being no. OG-19-2401-9910-00000255. With regard to the paragraph no. 6 to 10 the o.p. stated that the complainant himself submitted medical examination documents by Dr. Hulsartsen Ganzenhoef during the claim process stating the facts that Dhrubabrata Chatterjee had come from India on 09/05/2018 on holiday with difficulty to move, recovered from chronic kidney disease and anemia. This condition is totally beyond the policy limits and it has been expressly admitted by the complainant. It has been categorically stated by the complainant that as per the terms and conditions of the policy clause no.3 exclusions applicable to Section I to II the company is not liable for and no indemnity is available in respect of this claims arising out of or howsoever connected to the following:-

3.14 All injuries that are existing at the time of commencement of this policy or in medical condition or complication arising directly or indirectly from it or disablement  that existed before commencement of the policy period (even if unknown to the insured) or for which case treatment or advice was sought, recommended by or received from a doctor. During the process of the claim, it was found that the complainant has suppressed material fact at  the time of getting the insurance policy and truth came up while the claim was submitted on the basis of the document of Zeikenhuis Amstelland Hospital (ZA Hospital) which clearly shows that patient had disclosed before the doctor that he recovered from chronic kidney disease and anemia. The complainant wants to bypass the actual findings and want to emasculate the insurance company of wealth which is totally unacceptable. The answering o.p. during the process of the claim made investigation through its authorized agent and asked for the documents stating the medical history of the complainant thereafter the injured insured himself submitted a discharge summary issued by Forties hospital dated 09/04/2015 wherefrom it is evident that the patient was admitted at the said hospital and it was found that the kidney was mildly impaired cortical function and the liver was found enlarge and he had been diagnosed by Dr. Jayanta Dutta, Department of Nephrology, Charnok Hospital. During the purchase of the policy the insured was asked through an online query of any kind of preexisting disease and it appears that the complainant had voluntary and deliberately did not disclose the aforesaid pre existing disease which o.p. has found during the process of the claim. Complainant himself has violated the principal of “Uberrima Fides”. In view of such fact the o.p. categorically stated that the claim made by the complainant was not entertained due to suppression of pre existing disease and thereby the claim of the complainant was repudiated. In view of the facts and circumstances stated above the o.p. prayed for dismissal of the case.

On the basis of the pleadings of the respective parties the following points are to be decided :-

1. Whether the complainant was insured with the insurance company at the relevant point of time?
2. Whether the complainant suppressed the material fact of illness for which the claim of the complainant was rejected?
3. Whether the complainant had pre existing disease at the time of obtaining policy?
4. Whether on the said ground the rejection of the claim of the complainant tantamount to deficiency in service or unfair trade practice of the o.p. Insurance company?
5. Whether complainant is entitled to get any relief as prayed for?

Decision with reasons :-

            All the points are taken up together for the sake of brevity and avoidance of repetition of facts.           

            Ld. Lawyer for the complainant drew our attention that in the policy document itself in the bottom portion of the said policy document with the heading of pre existing disease had remained blank and the special terms and conditions also remained blank. Since the complainant did not get the opportunity to fill up the form for applying policy, therefore, there was no scope of disclosure of any pre existing disease and accordingly, after payment of the premium the policy was issued. Subsequently the o.p. insurance company for the purpose of denying the claim of the complainant has taken this plea that the complainant suppressed pre existing disease and as per the terms and conditions of the policy clause no. 3.14 the claim of the complainant was denied. The complainant has also brought to our notice regarding the treatment availed by the complainant a t Amsterdam and documents have been filed to that effect. The complainant has also filed document (translated in English copy) of the medical observation of the doctor and the diagnosis provided to the complainant. The complainant also submitted documents to substantiate his claim that he incurred the expenses of Euro 2308.32 which is equivalent to Indian currency of Rs.2,13,842.87 @ INR 80.40 per Euro along with interest. Ld. Lawyer for the complainant also brought to our notice that due to such sudden illness of the complainant he had to cut short his stay at Amsterdam and returned to Kolkata. Having regard to the said fact it was emphatically argued by the Ld. Lawyer by the complainant that the o.p. insurance company in order to pay the expenses incurred by the complainant has deliberately taken the plea of pre existing disease of the complainant and as such, the Ld. Lawyer emphasized that it is a fit to allow the claim of the complainant by negating the plea raised by the o.p. insurance company that the complainant suppressed the pre existing disease at the time of obtaining the policy and the application of 3.14 of the policy is not attracted in this case. Ld. Lawyer for the complainant also brought to our notice regarding the questionnaire put by the complainant against the evidence filed by the o.p. insurance company so far as the question no. 8 is concerned the complainant categorically stated that is it not true that you have filed no documentary evidence along with your w/v and evidence before the Ld. Forum to prove that the insurance company indeed explain the entire terms and conditions of the policy to the complainant and also in question no.9 wherefrom the complainant filled up any proposal form for getting travel claim policy from the o.p.! In response to the answer of these questions the o.p. insurance company categorically stated that the terms and conditions of the policy were explained to the complainant and there is a period of giving through the insurance policy terms and conditions and  the complainant as a well educated person and had purchased policy reading those terms and conditions.  Terms and conditions of the travel policy itself provides that disease which is pre existing wherefrom it is declared or not at  the time of taking the policy is not covered.

            The Lawyer of the o.p. no.1 argued that the complainant is having a mediclaim Policy  being no. OG-19-2401-9910-00000255 was generated in favour of the complainant. With regard to the paragraph no. 6 to 10 the o.p. stated that the complainant himself submitted medical examination documents by Dr. Hulsartsen Ganzenhoef during the claim process stating the facts that Dhrubabrata Chatterjee had come from India on 09/05/2018 on holiday with difficult to move, recovered from chronic kidney disease and anemia. This condition totally beyond the policy limits and it has been expressly admitted by the complainant. It has been categorically stated by the complainant that as per the terms and conditions of the policy clause no.3 exclusions applicable to Section I to II the company is not liable for and no indemnity available in respect of claims arising out of or howsoever connected to the following:-

            3.14 all injuries that are existing at the time of commencement of this policy or in medical condition or complication arising directly or indirectly from it or disablement  that existed before commencement of the policy period (even if unknown to the insured) or for which case treatment or advice was sought, recommended by or received from a doctor. During the process of the claim it was found  that the complainant has suppressed material fact at  the time of getting the insurance policy and truth came up while the claim was submitted from the Zeikenhuis Amstelland Hospital (ZA Hospital) document which clearly shows that patient had disclosed before the doctor that he recovered from chronic kidney disease and anemia. The complainant wants to bypass the actual findings and want to emasculate the insurance company of wealth which is totally unacceptable. The o.p. during the process of the claim made investigation through its authorized agent and asked for the documents stating the medical history of the complainant thereafter the injured insured himself submitted a discharge summary issued by Forties hospital dated 09/04/2015 wherefrom it is evident that the patient was admitted at the said hospital and it was found that the kidney was mildly impaired cortical function and the liver was found enlarge and he had been diagnosed by Dr. Jayanta Dutta, Department of Nephrology, Charnok Hospital. During the purchase of the policy the insured was asked through an online query of any kind of preexisting disease and it appears that the complainant had voluntary and deliberately did not disclose the aforesaid pre existing disease which o.p. has found during the process of the claim. Complainant  himself has violated the principal of “Uberrima Fides”. In view of such fact the o.p. categorically stated that the claim made b the complainant was not entertained due to suppression of pre existing disease and thereby the claim of the complainant was repudiated. In view of the facts and circumstances stated above the o.p. prayed for dismissal of the case.

            Considering the submissions of the respective parties it is an undisputed fact that the complainant for the purpose of visiting his son’s place at Amsterdam availed the service of the o.p. and obtained a policy from o.p. no.1. The complainant categorically stated that no application form was provided to the complainant whereby the complainant had the option to declare in  the form regarding the suffering of any illness by the complainant and thereby the quest ion of disclosing any pre existing disease never arose and whenever the policy was issued and during the subsistence of the said policy the complainant became ill and thereby insurance company is liable to pay the claim of medical expenses incurred by the complainant. it appears from the materials on record that the complainant applied for the policy through online process and if he fails to disclose any pre existing disease the quantum of premium was actually claimed from the complainant was meager sum of Rs.1,668/- and after payment of the said amount the policy was issued and the same was generated in favour of the complainant. During the purchase of the policy the insured was asked through an online query of any kind of pre existing disease and the complainant had deliberately did not disclose the aforesaid pre existing disease which the o.p. has found during the process of the claim. It appears that the insured has availed basic principle of “Uberrima Fides”. which covers the sanguinity of every insurance contract. From the evidence as well as from the documents submitted by the complainant of his medical examination documents by Dr. Hulsartsen Ganzenhoef and during the claim process said facts which was disclosed during the examination at foreign soil that complainant had come from India on 09/05/2018 with difficult to move, recovered from chronic kidney disease and anemia. This condition is totally beyond the policy limits and it has been expressly admitted by the complainant as per clause 3 of the policy document, exclusions applicable to Section I to II, the company is liable for any and not indemnity is available in respect of the claims arising out of how so ever connected to the following:-

3.14 All injuries that are existing at the time of commencement of this policy or in medical condition or complication arising directly or indirectly from it or disablement  that existed before commencement of the policy period (even if unknown to the insured) or for which case treatment or advice was sought, recommended by or received from a doctor. During the process of the claim it was found that the complainant has suppressed material fact at  the time of getting the insurance policy and truth came up while the claim was submitted  on the basis of the document of Zeikenhuis Amstelland Hospital (ZA Hospital) which clearly shows that patient had disclosed before the doctor that he recovered from chronic kidney disease and anemia. The complainant wants to bypass the actual findings and want to emasculate the insurance company of wealth which is totally unacceptable. The answering o.p. during the process of the claim made investigation through its authorized agent and asked for the documents stating the medical history of the complainant thereafter the injured insured himself submitted a discharge summary issued by Forties hospital dated 09/04/2015 wherefrom it is evident that the patient was admitted at the said hospital and it was found that the kidney was mildly impaired cortical function and the liver was found enlarge and he had been diagnosed by Dr. Jayanta Dutta, Department of Nephrology, Charnok Hospital. During the purchase of the policy the insured was asked through an online query of any kind of preexisting disease and it appears that the complainant had voluntary and deliberately did not disclose the aforesaid pre existing disease which o.p. has found during the process of the claim. Complainant  himself has violated the principal of “Uberrima Fides”. In view of such fact the o.p. categorically stated that the claim made by the complainant was not entertained due to suppression of pre existing disease and thereby the claim of the complainant was repudiated. In view of the facts and circumstances stated above the o.p. prayed for dismissal of the case.

            It appears from the materials on record that  the patient disclosed to doctor of Z.A. Hospital that he recovered from chronic kidney disease and anemia. The complainant suppressed the said fact at that time of obtaining policy and the insurance company during the process of the claim of the complainant found that there was clear suppression of the pre existing disease and thereby the insurance company as per the clause 3.14 rightly repudiated the claim of the complainant. Accordingly, we hold that there is no deficiency in service or any unfair trade practice on the part of the insurance company and  the complainant will not be entitled to get any relief as prayed for.  Thus all the points are disposed of accordingly.

            Hence, it is ordered,

            that the case no.CC/4/2019 is dismissed on contest without cost against both the parties.