IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the  31^st  Day of  October   2022

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

       Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                CC.224/2018

1. Albin Alfred                                                :         Complainants

        Palliezhathu veedu

        Sakthikulangara P.O

        Kollam, Pin-691581.

2. Alfred Daniel (Late)

        Palliezhathu veedu

        Sakthikulangara P.O

       Kollam, Pin-691581.

      [By Adv.Maruthadi.R.Sreeraj&

         Adv.S.Sunil Narayanan]

V/s

1. The Federal Bank Ltd.,                                 :         Opposite parties

        Neendakara Branch

      Represented by Manager

      Neendakara P.O, Kollam, Kerala.

     [ By Adv.B.S.Anup]

2. The Manager

         Max Bupa Health Insurance Company Limited

         Servicing Branch, 7-B, Puthuran Plaza

       40/483 V, MG Road, Kochi

        Kerala, Pin-682035.

3. The Managing Director

         Max Bupa Health Insurance Company Limited

         Corporate Office-B-1/1-2

         Mohan Co-operative Industrial Estate

         Mathura Road,

         New Delhi, Pin-110044.

        [By Adv.Saji Isaac. K.J]

FINAL    ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          This is a case based on a complaint filed u/s 12 of the Consumer Protection Act.

          The averments in the complaint in short are as follows:-

          The 1^st and 2^nd complainants are son and father respectively.  2^nd and 3^rd opposite parties are the insurers and 1^st complainant availed a medi-claim policy of  the 2^nd and 3^rd opposite parties through 1^st opposite party Federal Bank Ltd. with policy No.30689618201700 w.e.f  04.08.2017 to 03.08.2018 by paying Rs.31519/- as premium.  It was on the advise and canvassing of the 1^st opposite party that the complainant took the above policy from the  counter of the 2^nd and 3^rd opposite parties operated at the 1^st opposite party bank.

          1^st complainant is the policy holder and the medi claim policy was for the benefit of his father(2^nd complainant).  The  1^st complainant has taken the policy attracted by the benefit on the policy.  After medical examination of the 2^nd complainant the opposite parties issued the policy certificate along with a hand book and booklet containing the instructions, particulars, benefits and features of the policy.  Though the complainant availed the medi claim insurance policy from the opposite parties from 2017 onwards, the 1^st complainant submitted a claim for the treatment of his father with admission date on 08.06.2018 in KIMS Hospital, Trivandrum.  The date of discharge was on 12.06.2018 and the claim amount is Rs.35921/-,  Then another claim for Rs.89746/- with admission date on 22.06.2018 in Upasana Hospital, Kollam with the case of increase frequency of urination during night and chest pain was also submitted to the opposite parties.  The opposite parties denied both claims stating untenable conditions.  The 2^nd complainant was admitted in the hospital with the history of urinary incontinence for 2-3 days.  He was never suffering from Parkinson nor treated for Parkinson earlier, seizure or trauma hematoma.  The intension of the opposite parties is to repudiate the claim relying untenable reasons.  The act of opposite parties denying the claim is illegal and unfair.  The total expense incurred for the treatment and hospital expenses is Rs.1,25,667/-.  The opposite parties are bound to allow the claims.  The denial of the claims by the opposite parties is contrary to facts as there is no non disclosure of material facts at policy  inception.   Also the physical condition of the 2^nd complainant was examined by the medical team of the opposite parties before receiving the policy premium.

          The act of the opposite parties amounts to unfair trade practice and the complainants became a prey of the economic exploitation and the same has caused  incurable agony to the complainants.  The complainants are eligible for claim amount.  The opposite parties with the intention to exploit the complainants denied the claims.  The complainants are the victims of the unfair trade practice of the opposite parties and also the opposite parties committed utter deficiency of service to the complainants.  The 1^st complainant sent an email dated 30.07.2018 to the opposite parties for demanding claim amount.  But there was no reply. The complainant further prays  to order the opposite parties to pay the claim bill amount of  Rs.1,25,667/- to the complainants and also to order compensation of  Rs.50000/- from the opposite parties for the agony and hardships suffered by the complainants due to the unfair trade practice of opposite parties.  The opposite parties No.1 to 3 are jointly and severally liable for the mental agony to the complainant and hence all the 3 opposite parties are liable to compensate the complainant.   

          In response to the notice opposite party no.1 to 3 entered appearance.  The 1^st opposite party filed version.  The 2^nd and 3^rd opposite party filed joint version. 

          The contentions raised by the 1^st opposite party in his written version in short are as follows:-

          The complaint is not maintainable either in law or on facts.  The 1^st opposite party is not a necessary party in this complaint.  The alleged health insurance policy was between the complainants and Max Bupa Health Insurance company(Op 2&3).  Honoring or  disallowing the insurance claim is the sole discretion of the Insurance Company.  1^st opposite party would further admit that opposite party No.2&3 have issued insurance policy in favour of the complainants and the role of  opposite party bank is not mentioned anywhere in the policy.  Absolutely the bank has no role in awarding the claim amount or in repudiating the same to the complainants.  The 1^st opposite party is doing only banking business and the 1^st complainant is maintaining an account with Neendakara Branch of the 1^st opposite party bank.  As an agent of the 2^nd opposite party the 1^st opposite party bank had only facilitated the arrangement by introducing the 1^st complainant to the 2^nd opposite party.  The 1^st opposite party never canvassed or advised the 1^st complainant to take the insurance policy.  The 1^st opposite party has no role in acceptance or denial of the claim and the bank’s limited role is confined to the introduction of the complainant to the insurance company.  The 2^nd opposite party is doing their separate independent business and there is no specific counter or office at the premises of the 1^st  opposite party bank.  The 1^st opposite party has purchased policy from the opposite parties as per his own choice and from him no privilege has been received by the 1^st opposite party.  As the 1^st opposite party is not a necessary party to this proceedings and is not liable to pay any amount as claimed in the complaint.  The 1^st opposite party further prays to dismiss the complaint with exemplary costs and compensatory costs. 

          The 2^nd and 3^rd opposite parties filed joint version by raising the following contentions.  The complaint is not maintainable either in law or on facts.  However they would admit that the complainants had availed the Max Bupa Health Insurance Policy from the 2^nd and 3^rd opposite parties and the same had coverage up to 03.08.2018.  The policy was issued to the 1^st complainant for coverage of his father Alfred Daniel who is the 2^nd complainant and who is a known case of seizure disorder, Parkinson, post trauma hematoma evacuation prior to policy inception.   While submitting the proposal form the  1^st complainant acting on behalf of the 2^nd complainant  had willfully suppressed the above mentioned material information in order to obtain the policy.  The 2^nd complainant had undergone routine medical tests before issuance of the policy, however he did not disclose during medical examination and answered in negative for all health related questions.  The policy was issued to the complainants based on the proposal form submitted by the 1^st complainant.  The 1^st complainant had declared in the proposal form that the persons proposed to be insured are not currently suffering from any symptom(s) or complaint(s) persisting from more than five consecutive days for which he/she has not consulted a doctor.  The proposer had also declared in the proposal form that the 2^nd complainant had not undergone or been advised to undergo other than routine health check-up any diagnostic test/investigation including but not limited to thyroid profile, treadmill test, angiography, echocardiography, endoscopy, ultrasound, CT scan, MRI, biopsy and FNAC.  To the specific question in the proposal form as to whether the 2^nd complainant had undergone or been advised to undergo or plans to undergo any form of surgery or procedure, the 1^st complainant had answered in the negative.  The 1^st complainant further declared that the 2^nd complainant had  not been prescribed or taken any form of treatment or medication(including oral/inhalation/injection) for a period of more than seven days.  The 2^nd complainant during medical examination declared that “ I understand that the answers given by me to each of the questions in the MER shall be the basis of the contract for insurance with Max Bupa Health Insurance Company Limited.  The answers to the above questions are true and that I have not withheld any material information.  If any of the above answers are found to incorrect or false or incomplete my proposal is liable to be rejected.  Further my policy is liable to be terminated even after acceptance of my proposal if any of the above answers are found to be incorrect or false at any stage”.

          The 1^st complainant was aware that the information provided by him in the proposal form would form the basis of the insurance policy and that the information provided by him on behalf of all persons proposed to be insured are true and complete to the best of his knowledge.  The 1^st complainant being the proposer had suppressed material facts and had also made false declarations and hence the policy had become void ab initio.  The 1^st complainant had suppressed material information which was vital in assessing the undertaking of risk by the 2^nd and 3^rd opposite parties.  The non-disclosure of facts relating to pre-existing medical conditions of the insured pertaining to seizure disorder, parkinsons, post trauma hematoma evacuation are material facts that have direct bearing on the underwriting of risk by the 2^nd and 3^rd opposite parties.  According to the terms and conditions of the policy availed by the complainants, if a claim is in any way found to be fraudulent, or if any false statement or declaration is made or used in support such a claim or if any fraudulent means or devices are used by the insured person or anyone acting on behalf of the insured person or any false or incorrect disclosure to information norms to obtain any benefit under the policy, then the 2^nd and 3^rd opposite parties may reserve the right to re-underwrite or cancel the policy and all claims being processed shall be forfeited for all insured persons and all sums paid under the policy shall be repaid to the 2^nd and 3^rd opposite parties by the insured.  The policy shall be void and all premium paid hereon shall be forfeited to the 2^nd and 3^rd opposite parties in the event of misrepresentation, mis description or non disclosure of any material fact.  The terms and conditions of the policy availed by the complainant also provide for termination by the 2^nd and 3^rd opposite parties by giving 30 days prior written notice without refund of premium if the insured or any person acting on behalf of either had acted in a dishonest or fraudulent manner under or in relation to the policy and /or had not disclosed material facts or misrepresented in relation to the policy.  The policy availed by the complainants further had a free look provision whereby the complainant had an option to cancel the policy if he had objection to the terms and conditions of the policy within 15 days from the date of receipt of the policy.  The complainants had accepted the policy in full satisfaction and are hence bound by the terms and conditions of the policy.  The policy availed by the complainants also had a cancellation option whereby the complainant could terminate the policy by giving 30 days prior written notice to the 2^nd and 3^rd opposite parties.  The act of payment of premium and non exercise of the free look provision can only be deemed to be an acceptance of the policy terms and conditions. 

The averments that the complainants had incurred a total expense of Rs.1,25,667/- is also false and hence denied.  The 2^nd and 3^rd opposite parties are not under the terms and conditions of the policy liable to allow the claim of the complainants.  The further allegation that the denial of  claim is contrary to facts and that there was no non-disclosure of facts at the time of policy inception is also false and hence denied.  The further averment that the 2^nd complainant had been examined by a medical team of the 2^nd and 3^rd opposite parties before policy inception is also false and hence denied.  There was no need of medical examination since the 1^st complainant had declared in the proposal form that the 2^nd complainant was in good health.  The complainants have not been subject to any mental agony and are not liable for the claim amount.  The policy was issued to the complainants on the basis of the proposal form submitted by the 1^st complainant.  Had the 1^st complainant furnished correct details pertaining to pre-existing medical ailments of the 2^nd complainant, the opposite party No.2&3 would not have issued the policy to the complainants.  The complainants were legally bound to disclose the facts pertaining to his pre-existing medical conditions.  The 2^nd and 3^rd opposite parties are under the conditions of the policy entitled to reject the claim of the 2^nd complainant.  The complainants had not disclose true, complete and all correct facts in relation to the policy and had acted in a dishonest and fraudulent manner.  Even if the liability  is admitted the liability of the 2^nd and 3^rd opposite parties are limited and subject to the terms, conditions, limitations and exclusions of the policy.  The opposite parties further pray to dismissed the complaint with their costs.

          In view of  the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or any unfair trade practice on the part of  opposite party No.1 to 3?
2. Whether the complainant is entitled to get the relief sought for in the complaint?
3. Reliefs and costs.

Both parties have not adduced any oral evidence.  The complainants have got marked Ext.P1 to P8 documents  and the opposite parties got marked Ext.D1, D2 series, D3 series, D4 and D5 series.  Both parties have also filed notes of argument.  Though the case has been posted for hearing both parties have not turned up and advanced any oral argument.

Point No.1&2

     The following are the admitted facts in this case.  The complainants have obtained medi claim policy from the opposite party No.2&3 through 1^st opposite party bank by paying premium amount of Rs.31519/-.  The period of cover of the said policy is 04.08.2017 to 03.08.2018.  Though the 1^st complainant is the policy holder,  the medi claim policy was for the benefit of his father who is  the 2^nd complainant.  After conducting medical examination of the 2^nd complainant by the medical team deputed by the opposite parties the policy was  issued.  Along with the policy  a handbook containing the  instructions and particulars, features and interpretations and coverage of the policy was also issued.  It is also clear from the available evidence that the complainant had availed medi calim insurance policies from the opposite parties on behalf of the 2^nd opposite party from 2017 onwards.  The 2^nd complainant was admitted in the KIMS hospital with a history of  urinary incontinence for 2-3 days.  The 1^st complainant submitted a claim form for the treatment of his father who was admitted on 08.06.2018 in the KIMS hospital, Thiruvananthapuram.  The date of discharge was 12.06.2018.  The claim amount was  Rs.35921/-.  Another claim with admit date on 12.06.2018 in Upasana Hospital, Kollam with the case of increase frequency of urination during night and chest pain.  The 2^nd  complainant was discharged from the hospital on 25.06.2018 and the claim amount is Rs.89746/- which was also submitted before the opposite parties No.2&3.  But the opposite parties denied both the claims.  According to the complainant the opposite parties denied the claim on untenable grounds.  The 2^nd complainant was never suffering from Parkinson nor treated for Parkinson earlier, seizure or trauma hematoma.  Hence the act of opposite parties  in repudiating the claim is illegal and unfair.  According to the complainants they are entitled to get Rs.1,25,667/- as total claim amount.  According to the complainant Ext.P2 to P5 medical records would clearly establish the case that the 2^nd complainant has undergone treatment at the KIMS hospital and also at Upasana Hospital, Kollam and spend altogether Rs.1,25,667/- and he is entitled to get it re-imbursed.  Ext.P6 is the copy of the e-mail communicated dated 30.07.2018 issued to the opposite party by the 1^st complainant  claiming in the amount.   But the opposite party rejected the above 2 claims vide Ext.P7&P8 letters.  According to the complainant the above act of the opposite parties amounts to deficiency in service and unfair trade practice and therefore the complainant is entitled to get the above amount with interest and compensation to the tune of  Rs.50,000/-.

     According to the opposite parties No.2&3 the 2^nd complainant who is the insured is a known case of seizure disorder since 3 years, post traumatic hematoma evacuation done 38 years ago, subclinical hypothyroidism done 1.5 years back, craniotomy done 30 years back, atypical parkinsonism with dementia and dyspnea on exertion.  Now we shall consider whether there is any merit in the above contention of the opposite parties.  It is clear from the available materials that the policy of the complainants incepted for the first time on 04.08.2017.  But it is evident from Ext.P2 discharge summary issued from KIMS Hospital, Trivandrum under the head Past illness and treatment it is stated “post traumatic hematoma evacuation done 38 years back seizures 4 years last seizure 2 years back”.  Ext.P4 patient’s details from Upasana Hospital would further indicates that history of sub clinical hypothyroidism 1½  years, history of seizure disorder treated at  KIMS Hospital.  In view of the above evidence it is clear that as on the date of submission of the proposal form in 2017 for issuance of the policy, the 2^nd complainant was having seizure and he had positive knowledge of  the existence of the above diseases.  But the same were not mentioned  in the proposal form.  According to the 2^nd and 3^rd opposite parties while submitting the proposal form by the 1^st complainant on behalf of the 2^nd complainant had willfully suppressed the above material information inorder to  obtain the policy.  It is also clear from the available materials that the 1^st complainant has aware of the information provided by him in the proposal form which would form basis of the insurance policy.  The 1^st complainant had also declared in the proposal form that “ I hereby declare, on my behalf and on behalf of all persons proposed to be insured, that the above statements, answers and/or particulars given by me are true and complete in all respects to the best of my knowledge and that I am authorized to propose on behalf of these other persons, I understand that the information provided by me will form the basis of the insurance policy”.  In the circumstances it is clear that the 1^st complainant being the proposer had suppressed material facts which were within his knowledge and has also made false declarations and therefore the policy obtained by giving such false information  has become void ab initio,  since those are material facts that have direct bearing of the underwriting of risk by the insurer as argued on behalf of opposite party No.2&3.

     The learned counsel for the opposite party No.2&3 by relying on the dictum laid down by the Hon’ble Supreme Court in Manmohan Nanda Vs United India Insurance  Company has argued that  it is the duty or obligation of disclosure by the insured regarding any material fact at the time of making the proposal.  The insured is bound to disclose  all  material facts so as to enable the  insurer to assess the risks that may arise from the status of health and existing disease, if any, disclosed by the insured in the proposal form before issuing the insurance policy”.  In the light of the above decision the non  disclosure of materials facts amount to a grave factor which will affect the validity of the insurance policy itself as argued for the learned counsel for the 2^nd and 3^rd opposite party. 

It is also clear from wordings of Ext.P1, D1 and D2 series policy documents that if a claim is in any way found to be fraudulent or if any false statement or declaration is made or used in support such a claim, or if any fraudulent means or devices are used by the insured person or anyone acting on behalf of the insured person or any false or incorrect disclosure to information norms to obtain any benefit under the policy, the  insurer is  having a right to re-underwrite or cancel the policy and all claims being processed shall be forfeited for all insured persons and all sums paid under the policy shall be repaid to the insured.  In such event the policy shall become void and all premium paid to obtain the policy shall stand forfeited to the insurance company by giving 30 days prior notice without refund of premium.   In view of the materials discussed above it is clear that there is no merit in the allegation in the complaint and there is no deficiency in service or any unfair trade practice in repudiating the two claims lodged by the complainants and the complainants are not entitled to get the reliefs sought for.  The points answered accordingly.

     In the result complaint stands dismissed.  The parties are directed to suffer their respective costs.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the  31^st   day of  October   2022.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext P1        :        Max Bupa Health Insurance Policy Document.

Ext P2        :        Discharge summary dated 12^th June 2018 from Department of Neurology, KIMS Trivandrum.

Ext.P3        :        Bill summary dated 12.06.2018 from KIMS Trivandrum.

Ext.P4        :        Photo copy of patient’s details from Upasana Hospital dated

                           30.08.2018.

Ext.P5       :     Duplicate bill (inpatient bill summary) issued from Upasana Hospital.

Ext.P6       :     Photo copy of Application submitted by the 2^nd complainant to The

           Manager, Max Bupa for delay in claim for medical insurance policy.

Ext.P7      :    Copy of member reimbursement statement for claim No.345912 from

                      Max Bupa to the complainant.

Ext.P8      :     Copy of member reimbursement statement for claim No.345913 from Max Bupa to the complainant.

Witnesses Examined for the opposite party:-Nil

Documents marked for the opposite party:-

Ext.D1                  :         Health companion proposal form.

Ext.D2 series        :         Policy document dated 08.08.2017.

Ext.D3 series        :         Medical examination report.

Ext.D4                  :         Cancellation/repudiation letter dated29.06.2018.

Ext.D5 series        :         True Photocopy of Inpatient register and  Confidential

                                        Medical record of  Alfred Daniel.