DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.67/2021
Tarunn Aggarwal
N-12, South Extension, Part-I,
New Delhi-110049
….Complainant
Versus
HDFC Ergo Health Insurance Ltd
Formaly/ Earlier Known as
(Apollo Munich Health Insurance Ltd)
Having office at:
1. Policy issuing Office:
415, SOM Datt Chamber-II,
9 Bhikaji Cama Place, New Delhi
2. Registered Office:
101, First Floor, Inizio,
Cardinal Gracious Road, Chakala,
Opposite P & G Plaza, Andheri (East), Mumbai-400069
also, At: Central Processing Centre,
2nd and 3rd Floor, ILABS Centre,
Plot No.404-405, Udyog Vihar Phase III
Gurugram 122016
….Opposite Party
Date of Institution : 20.02.2021
Date of Order : 08.10.2024
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Yubaraj Chatterjee for complainant.
Adv. Suman Tripathi for OP.
ORDER
Member: Ms. Kiran Kaushal
1. Facts of the case as pleaded by the complainant are that complainant purchased an Optima Restore Insurance Policy being a Mediclaim Family Floater Policy from Apollo Munich Health Care Insurance Limited. It is stated that Apollo Munich Health Care Insurance Limited has been merged into HDFC Ergo Health Insurance Limited, hereinafter referred to as OP.
2. The said policy was issued for the currency period of 24.05.2012 to 30.05.2019 and the Complainant was regular in paying the premium amount to OP. It is stated that complainant’s wife in the year 2017 was diagnosed with Chronic Kidney Disease (CKD) and after extensive treatment, dialysis, the doctors of the hospital advised for kidney transplantation. To facilitate the payment of kidney transplantation and other medical expenses, complainant invoked his Optima Restore Insurance Policy and filled an authorization form prior to the transplantation but no claim was approved by OP.
3. It is further stated that complainant’s wife after successful kidney transplantation was discharged from the hospital on 31.07.2018 after the complainant had paid the hospital bill of Rs.17,30,573/- in total. Complainant filed a claim form for claiming Rs.17,30,573/- with OP along with all the documentary proofs as required and as stipulated in the claim form. Despite submitting all the details along with original documents and bills, OP vide letter dated 14.09.2018 and email dated 27.09.2018 raised a query qua original documents and bills as given by the hospital. The complainant time and again stated that all originals were filed with OP. However, acting in bonafide manner, complainant vide letter dated 09.10.2018, again submitted the documents as required by the insurance company. To utter shock and dismay of complainant, OP again vide email dated 06.10.2018 and letter dated 08.10.2018 raised the same set of queries to the complainant.
4. It is stated that complainant ran from pillar to post to get the claim amount realized but OP never gave any satisfactory response to the correspondences and reminders sent by the complainant. However OP repudiated the claim of the complainant vide letter dated 23.10.2018, stating that the complainant’s wife had kidney disease since 2008 and the same was not disclosed . Therefore, owing to the said factum and suppression of material fact, OP served 30 days notice for termination of complainant’s policy. Complainant vide letter dated 08.12.2018 explained that present insurance policy is running since last six years without any complaint of late premium payments.
5. It was also explained that CKD was detected in 2017 and it cannot be the basis of terminating the policy or rejecting the claim amount. It is stated that OP again rejected the claim vide email dated 18.12.2018 referring to prescription dated 14.04.2017 wherein on investigation, it was found that the complainant’s wife was having a kidney disease for which she took treatment for some time and left. It is stated that complainant’s wife was treated completely and since than uptil 2017 complainant’s wife never had any health ailments and never went to any hospital for surgery.
6. Aggrieved by the circumstances above, complainant approached this Commission for direction to OP to reimburse the claim amount of Rs. 17,30,573/- towards medical expenses incurred by the complainant ; to pay Rs.5,00,000/- towards mental agony and harassment and to pay Rs.1,00,000/- towards litigations.
7. OP resisted the complaint and filed the written statement stating inter alia that complainant is not entitled to any relief in equity since he has not approached the Commission with clean hands and is guilty of concealing the facts. It is next stated that the document related to health and treatment as provided by the complainant for his wife clearly states that the complainant’s wife is a case of kidney disease since 2008 and the same was not disclosed at the time of filling up the proposal form. Based on the said non-disclosure of the material facts, the claim was repudiated by OP as per section VII J of the Insurance Policy.
8. It is stated that the complaint is liable to be dismissed, in view of the settled proposition of law that contacts of insurance are contracts of Uberrima Fides-Utmost good faith and every material fact must be disclosed otherwise there is a good ground for recession of the contract. Hon’ble Supreme Court in Satwant Kaur Sandu Vs New India Assurance Company Ltd (2009) 8 SCC 316 held that any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether the insurance company would accept the risk involved would be ‘material fact which the insured is obliged to disclose’.
9. It is next stated that on 18.07.2018 cashless claim was received from complainant’s wife from Sir Ganga Ram Hospital, New Delhi. Complainant’s wife was admitted on 07.07.2018 for Renal Transplant Surgery and Craniotony. Upon reviewing the documents, it was noted that she had CKD V diagnosed in April, 2017 since then she was on hemodialysis (twice) weekly. Post the cashless claim, OP raised a query to provide the ‘Exact duration of SDH/post RAR/CKD - V/HTN, first consultation paper, all previous treatment records pertaining to the same’. Upon receipt of the reply, it was noted that CKD was diagnosed in April, 2017 and in 2008, it was found that the patient was having kidney disease.
10. A query was again raised to the complainant to provide past treatment records and investigation reports of the spine problem/back pain however, no reply was received from the complainant. As the duration of pre-existing condition was confirmed the cashless claim of the complainant was rejected.
11. It is stated that the complainant had deliberately and with malafide intention not shared that his wife was suffering from kidney disease in the proposal form. In light of the facts stated above, it is prayed that compliant be rejected being baseless, incorrect and unwarranted.
12. Rejoinder to the WS of OP is filed wherein it is reiterated that in the year 2008 proper medication qua kidney disease was prescribed and after taking the medicine, complainant’s wife was healthy. As at the time of purchasing the insurance policy i.e year 2012 the treatment was not on going and the problem had already been cured, same was not mentioned in the proposal form. It is stated that complainant’s wife was treated and was fine till 2017, complainant’s wife had no health ailments and never went to the hospital for any surgery.
13. Evidence and written arguments have been filed on behalf of both the parties. Submissions made by the learned counsels are heard. Material placed on record is perused.
14. Admittedly, complainant’s claim was repudiated on the ground of non-disclosure of material fact which had its basis in the prescription dated 14.04.2017. Relevant portion of the prescription is reproduced as under-
In 2008, she had been checkup for bony pain in lower limbs for which she too analgesics and was checkup by dr. Gupta who on investigation was found her to be in KD. For which she took treatment for sometime and then left. But is on treatment since last 4 yrs. Latest creatinine: 5.17mg/dl, Urea: 61, Potassium: 3.4. Phos: 5.3, Calcium: 9.44, t.P:6.6, Albumin: 4.1, PTH: 299, Urine Albumin: 250mg%, Hb : 11.2
15. The above stated prescription very clearly shows that while recording the clinical history of the complainant, it was found after investigations that complainant was suffering from kidney disease in the year 2008. It is next noted that ‘the complainant took treatment for the same for some time and then left. But is on treatment since last four years’ which would mean that the complainant was on treatment since 14.04.2013. Inception of the policy is in the year 2012 therefore, it can be safely concluded that though the complainant was suffering from kidney disease in the year 2008 but was not suffering from the said disease during the inception of the policy. Complainant could not have disclosed what was not there during the inception of the policy.
16. Hon’ble State Commission in Oriental Insurance Company Ltd. V. Mainder Singh (Dr.) (2008) CPJ 511 held as under-
A person comes to know about the medical terminology of a particular disease when he lands in the hospital and undergoes treatment or operation. If a person had suffered heart attack or got treatment for a particular disease say 10-15 years before and has been leading healthy and normal life he is not supposed to disclose the factum of having undergone treatment or operation for particular disease 10-20 years before. It is only the disease which is existing at the time of obtaining the policy or in the near proximity of it for which the insured has undergone any treatment or operation which is pre-existing disease and not the disease for which the man had already obtained the treatment and cured himself and was leading healthy life of a healthy person.”
17. OP has not placed any substantial evidence on record to prove the fact that the kidney disease as mentioned in the clinical history of the prescription dated 14.04.2017 was continuing and the complainant was taking treatment for the same till the inception of the policy .
Hon’ble Delhi High Court in the matter of Sudhankar Tiwari V. New India Assurance Co.Ltd, 2020 SCC Online Del 2520 held that-
“In my view, the respondent's analysis falls short of the minimum required standard. The original position taken by the TPA has simply been reasserted by the respondent without even considering the information it had sought from the petitioner. In the counter affidavit filed by the respondent, the petitioner's averments regarding the nature of the diseases, and the medical records have not been disputed. It is clear from the record that the petitioner was afflicted with one form of cancer (oesophagal cancer) in 2017, he was successfully treated, found to be free of the disease in July 2018, but the cancer unfortunately recurred in another form (this time in the lymph nodes) in 2020. Further, the fact that cancer, even if successfully treated, can recur in another part of the body at a later date is well known. However, it is not a matter of such certainty or correlation as to justify treating the present ailment as one for which the petitioner had symptoms prior to enhancement, particularly when there was no evidence of the disease in the interregnum. Such an interpretation is inconsistent with the restrictive construction of exclusion clauses, and contrary to the very purpose for which medical insurance is taken or enhanced”.
18. OP’s reliance on Mrs. Shnyani Valsan Pombally Vs State Bank of India (Revision Petition No.3947 of 2013 and Shalini Shrivastav Vs Aviva Life Insurance Co. Ltd & Anr (First Appeal No.1295 of 2014) wherein it is held that the contract of insurance is based on the principle of utmost good faith holds good only in cases where the cogent evidence is filed with respect to concealment of material facts which is not the case in the instant matter.
19. In light of the above discussion, this Commission is of the opinion that OP has wrongly repudiated the claim of the complainant therefore, OP is directed to reimburse the claim amount of Rs. 17,30,573/- towards total medical expense within three months from the date of order, failing which OP shall pay the above stated amount with interest @4% p.a from the date of filing of the complaint till realization.
Parties be provided copy of the judgment as per rules. File be consigned to the record room. Order be uploaded on the website.
