FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is a complaint case filed u/s.12 of the C.P. Act, 1986.
The complainants are mother and daughter of Late Ajoy Bose. Ajoy Bose was previously the complainant No. 1 who died on 10.11.2019. After the death of Ajoy Bose Rowina Nandini Mehrotra was substituted by her mother as complainant No.1. During his lifetime Ajoy Bose after several discussion with the OP1 and their Agent agreed to purchase a Health Insurance Policy named as Health Companion Policy in favour of self and his spouse from the OP Insurance Company and accordingly paid a premium of Rs.4,23,778/- by cheque for the policy bearing No. 30769566201800 issued for the period from 03.05.2018 to 02.05.2020. The OP 1 & 2 sent e mail dated 29.04.2018 to the complainants for various medical check up to be done on 01.05.2018 and on 03.05.2018 the OP 4 provided pre policy medical check up report for application no. 201800030960.
On 05.11.2018 the complainant No.2 was admitted to the Emergency Unit of Belle Vue Clinic for the problem of high fever and loose motion under the care of Dr.A.Neogy and S.K.Mondal. The complainant No.1 informed the OP 1 about the said admission. Afterwards, a cashless benefit of Rs.25,500/- was allowed by the OP3 for Diarrhoea and gastro enteritis of presumed infectious origin. But afterwards after undergoing so many tests, it was detected by the Hospital that the complainant was suffering from Malaria. On 12.11.2018 the complainant No.2 was discharged from the hospital at around 10 am. But after several communications made by OP3 the complainant came to know that the cashless benefit is withdrawn by the company for the reason of non disclosure of material fact of having permanent pace maker in 2013. The Hospital Bill of Rs.1,61,379/- was finally paid by the complainants and got discharged. On 13.11.2018 the OP 3 cancelled the entire policy bearing No. 30769566201800 for non disclosure of material fact. A hard copy was received by the complainants on 15.11.2018. The complainant No.1 immediately replied to the OP 3 that at the time of pre insurance medical check up they told to the OP4 that the OP2 is having a pace maker and they should use a magnet at the time of ECG Test. But they did not mention in their medical report. More over the complainants do not understand the relation between Malaria and pacemaker. Ultimately the OP3 cancelled the policy and clearly mentioned that they will not refund the premium. This is a clear case of unfair trade practice and snatching the hard earned money from the old persons through lucrative false and vexatious offers. Finding no other way the complainants have approached the Commission seeking justice and reliefs as detailed in the complaint petition.
The OP Nos 1,2 & 3 have contested the case by filing W/V contending inter alia that the case is baseless frivolous and devoid of any merit and ought to be dismissied in limini. The case do proceed ex parte against OP4.
The complainant No.2 and the father of the complainant No.1 were issued the subject Health Insurance Policy on the basis of proposal papers executed by them and the Medical Examination Report. The sum assured under the policy was Rs.50,00,000/- and date of commencement of the policy was 03.05.2018. On 05.11.2018 the OPs received a pre authorization request from Belle Vue Hospital. Initially an approval was given by the OP. But on investigation it was revealed that the complainant No.2 underwent Heart Surgery in 2013 and permanent pace maker was implanted. The same adverse medical condition was not disclosed at the time of taking the instant policy. Accordingly the pre authorization request was rejected. The policy was cancelled on 15.12.2018.In the proposal form “A” the complainants did not disclose any diagnostic test/investigation as per questionnaire under item No.5. The complainants disclosed the said fact of implant of pace maker in 2013 in the column of past history of the Emergency Assessment Form in Belle Vue Hospital at the time of admission. But the complainants did not disclose the fact of pace maker implantation at the time of medical examination prior to issuance of policy. The OPs submit that the risk is assessed on the basis of medical history and action is taken according to the severity and prognosis of the conditions upon full assessment of facts. It is submitted by the OP that Non disclosure and /or suppression and/or misrepresentation of information that is material to the underwriting decision leads to alteration in the contractual terms. Accordingly the claim was rejected and the subject policy is cancelled as per the terms and conditions of the policy and the OP had acted strictly as per the terms and conditions of the policy.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OPs are deficient in rendering proper service to the Complainant?
2) Whether the OPs have indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake convenience and brevity in discussion.
We have travelled over documents placed on record. The complainants and the OPs have filed their evidence supported by affidavit. Reply to the questionnaire set forth by the OPs have been filed by the complainants. BNAs have been submitted by both sides.
The fact of the case in brief is that complainant No.2 and the father of the complainant No.1 were issued the impugned policy bearing No. 30769566201800 for the period from 03.05.2018 to 02.05.2020 for a sum assured of Rs.50,00,000/- from the OP Insurance Company. The name of the OP Insurance Company has been changed from Max Bufa Health Insurance Company Ltd. to Niva Bupa Health Insurance Company Ltd. vide certificate dated 05.07.2021 issued by the Govt. of India Ministry of Corporate Affairs.
Now let us come to the subject matter of the case. The claim of hospitalization during the period from 05.11.2018 to 12.11.2018 to the tune of Rs. 1,61,379/ incurred by the Complainant No.2 was refused by the OP Insurance Company and finally they have cancelled the said policy citing the cancellation clause (Clause 3) vide letter dated 13.11.2018. In the meanwhile, they had cancelled the cashless benefit of Rs.25500/- vide letter dated 12.11.2018. showing the reason of adverse medical condition. However, The said cancellation clause is read as under.
“Without prejudice to the above, we may terminate this policy during the Policy Period by sending 30 days prior written notice to your Address shown in the schedule of Insurance Certificate without refund of Premium if :
- You or any Insured Person or any person acting on behalf of either has acted in a dishonest or fraudulent manner under or in relation to this Policy; and/or
- You or any Insured Person has not disclosed the material facts or misrepresented in relation to the Policy ; and/or
- You or any Insured Person has not cooperated with Us.
In the instant case the OP has referred the point No.II of the cancellation clause by mentioning that there is a concealment of material fact on the part of the complainant No.2. The complainant No.2 has not disclosed the fact that she has a history of permanent pace maker in 2013 in the proposal form. In view of the above they have cancelled the instant Health Insurance Policy without refunding the premium.
The complainant got admitted to the Belle Vue Hospital with fever and loose motion where after so many diagnostic tests it was detected Malaria. The OP Insurance company after receiving the Pre authorization certificate from the Hospital provisionally diagnosed the disease as Diarrhoea and gastro enteritis of presumed infectious origin and sanctioned a cashless amount of Rs.25500/- which was however withdrawn after investigation vide letter dated 12.11.2018.
First of all we fail to understand the logic of non reimbursement of the expenses incurred for the treatment of Malaria which has no material linkage with the alleged non disclosure of pace maker implantation in 2013 though there is sufficient reason to believe that the proposers Ajoy Bose (since deceased) and Smt Erna Bose had disclosed this particular aspect of health to the representatives of the Insurance company at the time of filling the proposal form.
While perusing the reply of the proposer Ajoy Bose against the questionnaire set forth by the Insurance Company under Question No.11 we find the following :
11. Did You disclose all the facts about the past medical history in your proposal form ?
Ans.. Yes I did mention it to the Branch Manager,Tanmoy Bagchi and the Max Bupa Agent, Debashish Gupta filling up the form. The Branch Manager said he would fill up the details separately as a note to Max Bupa main office. I trusted he would do his job and left it at that.
This is the clear reply and submission on oath on the part of the deceased father of the complainant No. 1 against the specific question of the OPs. Against the above reply we do not find any counter reply on affidavit from Sri Tanmoy Bagchi, the then Branch Manager and Sri Debashish Gupta, the Agent of the OPs. Nor there is any counter reply of the OP Insurance Company in the above vital aspect of the instant complaint case. Since the OPs have not provided any counter Affidavit against the submission of the deceased father of the complainant No. 1 alleging Mr.Tanmoy Bagchi, the then Branch Manager and Sri Debashish Gupta, the Agent of the OP Insurance Company as accused for the misconduct of not mentioning the implantation of pace maker in the complainant No.2 in the proposal form it can be very well considered as an admission on the part of the OPs. It also proves that the Proposal Form was filled up by the Agent of the OP Insurance Company in presence of the then Branch Manager who had assured the proposers to clear up the issue by a separate statement to their higher up which appears to have not been done.
Next, we are coming to the Medical Examiner’s Report done before issuance of the policy. By a letter dated 30.04.2018 the OP Insurance Company had fixed an appointment on 01.05.2018 with the complainant No.2 for her medical tests and advised her to stay in empty stomach. Along with other tests ECG was done by the OP 4, being the authorized Health Centre. The complainant 2 is a person who has been implanted pace maker in 2013. She is well aware of the need of precaution of her pace maker specially when ECG is to be done. It is therefore a simple prudence that the complainant No.2 will definitely make aware of the said facts to the doctors present over there at the time of undergoing ECG Test and definitely took precaution by using Magnet which she usually do it. The ECG Test Report done by Dr. Helendra Nath Dutta, MD(Cardio),the authorized doctor of OPs is found along with the complaint petition. So it is crystal clear that the fact of implantation of pace maker in the complainant No.2 is very much well within the knowledge of the OPs. The reason for not mentioning the same in the Proposal Form is best known to the OPs. We apprehend that the same was not mentioned deliberately with some ill motive for the interest of the OPs. It is absolutely unbelievable that a person aged 80 years will conceal the existence of pace maker in her body at the time of ECG only for the mere issue of obtaining a policy. To any person value of life is much more than that of a policy. So from the facts and circumstances of the given situation it can be very well inferred that it is a an deliberate attempt on the part of the OPs to prove the proposers liars specially those persons who have already attained the age of 80 years and an ill motivated plan to grab the money of the helpless aged and ailing persons who believed the personnel of the Insurance Company in right spirit. This type of incidents are having far reaching effect in the minds of the people who intend to obtain policies for their protection. People will definitely loose their trust and confidence on the Insurance Companies in the matter of taking Insurance Policies which ultimately affect the Insurance Industry as a whole. It was a simple case of reimbursement for treatment of Malaria which has hardly any relation with implantation of pace maker in 2013 and that too 05 years before the issuance of the policy and expenses were to the tune of Rs.1,61,379/- which also they would not like to reimburse rather found it fit to cancel the Policy itself with forfeiture of premium. This is a glaring example of deficiency in service and unfair trade practice on the part of the OPs No.1 to 3 which should be viewed very seriously.
In the light of the above observation, we are of the opinion that the complainants have established the case against the OPs.
All the points under determination are answered accordingly.
In the result, the Consumer Complaint succeeds..
Hence,
Ordered
That the complaint case be and the same is allowed on contest against the OP. Nos. 1 to 3 and dismissed exparte against the OP No.4 with the following directions.
- OP Nos. 1 to 3 are directed to refund jointly and severally the Policy Premium of Rs. 4,23,778/- with simple interest @6 % p.a. from 01.05.2018 till the date of payment.
- OP Nos. 1 to 3 are further directed to pay jointly and severally a sum of Rs.50,000/- to the complainants as cost of compensation for causing harassment and mental agony to the complainants.
- OP Nos. 1 to 3 are also directed to pay jointly and severally a sum of Rs.20,000/- to the complainants as cost of litigation.
The above orders are to be complied within a period of 30 days from the date of the order failing which the complainants are at liberty to put the orders into execution as per rules.
Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and Judgment be uploaded in the website of the Commission for perusal of the parties
