Order dictated by:
Sh.S.S.Panessar,President.
1. Smt.Basanti Devi Sharma complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant has taken Health Insurance policy from the opposite party for herself and her granddaughter vide policy No. 30212006201401 covering risk period w.e.f 29.5.2014 to 28.5.2015. Copy of the cover note is attached. The complainant as such is consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant unfortunately fell ill and got admitted in Medanta Medicity, Gurgaon and was to be under medical treatment and the claim for her hospitalization and medical treatment was referred to the opposite party. The claim bill of Rs. 49,232/- was filed with the opposite party, which was repudiated by it through its repudiation letter dated 4.5.2015 on the frivolous ground that the complainant concealed the material fact and was having arthritis. It is pertinent to mention over here that no policy condition is communicated to the complainant and now repudiating the claim on such ground which is never a part of an agreement between the parties . Moreover the treatment taken thereof was nothing to do with the Arthritis and the complainant at the time of taking the said policy was never having any such disease at the relevant time. Opposite party had issued the said policy on cashless basis for the medical treatment but the complainant had to pay the amount out of her own pocket. Repudiation of the genuine claim of the complainant with ascertaining the correct facts is arbitrary act . The cause of action has arisen to the complainant to file the present complaint with the opposite party repudiated the genuine claim of the complainant vide letter dated 4.5.2015 and the complainant is well within the period of limitation for filing the instant complaint. The complainant has sought for the following reliefs vide instant complaint :-
- Opposite party be directed to pay the claim of Rs. 49,232/- alongwith interest @ 12% .a. fro the date of payment till realization ;
- Opposite party be directed to pay compensation to the tune of Rs. 40000/- besides cost of litigation.
Hence, this complaint.
2. Upon notice, opposite party appeared and contested the claim by filing written version taking certain preliminary objections therein inter alia that complainant has shown complete disregard towards the sanctity and dignity of the judicial process and has not only concealed the material facts from this Forum but is also guilty of making misrepresentations and distorting facts to suit his own ends. Thus, the complainant is guilty of Suppressioveri and suggestion falsi and the same has no right whatsoever to maintain the present complaint before this Forum ; that present complaint against the opposite party is liable to be dismissed as no cause of action has ever accrued in favour of the complainant ; that in order to prove its case, the opposite party would have to lead evidence and examine its witnesses and expert evidences. It is submitted that Hon’ble Supreme Court of India has stated that the Civil court is the appropriate forum to decide cases which are complicated in nature and in which oral and documentary evidences are required to be led; that answering opposite party deny and dispute each and every allegations, averments and submissions made in the complaint except which are specifically admitted herein ; that it is submitted that complainant wanted to port her policy to Max Bupa Health Insurance Co.Ltd. Hence, as per clause 5 of IRDA circular dated 9.9.2011 relating to Portability, the complainant was required to fill a portability form and a proposal form . The complainant bought a health insurance policy from the opposite party after filling a policy proposal form & portability form . The complainant was required to disclose her medical history as asked in clause 5 Medical History of the proposal form . However, the complainant did not disclose any medical history. The medical history is very important as it is on the basis of this information that an insurance company decides whether or not they would provide insurance to the proposer. Therefore, assuming that the proposer is a healthy person and hence risks involved in insuring her are within acceptable limits, a Family First Silver 5 lacs + 15 lacs policy having policy No. 30212006201300 was issued which was valid from 29.5.2013 to 28.5.2014. The sum assured was Rs. 5 lacs individual cover + Rs. 15 lacs as floater amount. A copy of the policy proposal form and portability form as filled by the complainant’s husband are being annexed ; that policy kit is printed in the form of a booklet. The entire policy booklet which included the welcome letter, insurance certificate , premium receipt, policy terms and conditions, a copy of proposal form as filled by complainant, etc. was provided to the complainant when the policy was issued . It is not possible that only insurance schedule would be issued without rest of the documents because all documents are printed in the form of a booklet. A copy of the policy booklet is being annexed ; that at no point of time did the complainant filed any complaint with the answering opposite party that he has not received the policy terms and conditions or premium receipt etc. This means that he had duly received the policy terms and conditions which are part of the policy booklet provided to all customers. If the complainant had not received the same, then she should have filed a complaint with the Insurance company. The complainant may be asked to produce evidence of any such complaint made by him to the opposite party regarding non receiving of policy terms and conditions ; that the said policy was renewed for the period 29.5.2014 to 28.5.2015 and 29.5.2015 to 28.5.2016. A copy of the policy certificate for the said periods issued under policy No. 30212006201401 & 30212006201502 are being annexed. On merits facts narrated in the complaint have been specifically denied. It is stated that complainant was suffering from Arthritis since before policy was ported. However, at the time of filling in the proposal form, no such intimation was given to the opposite party . As such complainant is guilty of suppression of material facts. The medical claim of the complainant has been rightly repudiated on the ground of suppression of pre-existing disease on the part of the complainant. Instant complaint has no merit. There is no deficiency of service on the part of the opposite party and a prayer for dismissal of the complaint with cost has been made.
3. In his bid to prove the case , Sh.Deepinder Singh,Adv. counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1, copy of policy documents Ex.C-2, copy of discharge summary Ex.C-3, copy of hospital bill Ex.C-4 and closed the evidence on behalf of the complainant.
4. To rebut the aforesaid evidence Sh.R.P.Singh,Adv.counsel for the complainant tendered into evidence affidavit of Sh.Sumeet Bajaj, Chief Manager Legal Ex.OP1 alongwith documents Ex.OP2 to Ex.OP14 and closed the evidence on behalf of the opposite party.
5. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted by the opposite party.
6. On the basis of the evidence , ld.counsel for the opposite party has vehemently contended that there is no dispute that the complainant was insured vide health insurance policy bearing No. 30212006201401, copy whereof is Ex.C-2 for the period from 29.5.2014 to 28.5.2015. During the subsistence of the policy period, complainant was hospitalized w.e.f 18.2.2015 to 20.2.2-015 at Medanta Medicity , Gurgaon and got treatment in the hospital. The discharge summary Ex.OP11 bears witness to the said fact. The complainant submitted insurance claim for an amount of Rs. 49,232/- on the basis of the treatment received by her. But , however, a perusal of the discharge summary Ex.C-3 would reveal that Basanti Devi was diagnosed NASH related Child & Cirrhosis RA (on medication) FLP normal . During investigation , the investigator collected prescription slips i.e. part of investigation report Ex.OP12 on page 4, it is specifically mentioned that the patient case is known case of renal arthritis five years and on page 5 of investigation report it is duly mentioned that the patient was on MTX four years. From these documents, it is crystal clear that the patient was suffering from renal arthritis from five years and RA on saga ( was on MTX for 4 years). All these documents were collected by the investigator as permitted by Basanti Devi vide letter duly signed by her given to the medical superintendent of Medanta Hospital filed in the investigation report. However, at the time of filling the proposal form, the complainant intentionally did not disclose those facts with an intention to get undue benefit, therefore, her claim was rightly repudiated vide letter of repudiation, copy whereof is Ex.OP14 on record. In view of the latest judgement passed by the Hon’ble National Commission on 3rd June, 2015 in LIC Vs. Kuldeep Singh wherein it has been laid down that non disclosure of material fact is a valid ground for rejection of the claim. The Hon’ble National Commission went on to hold further that “ The term material fact has not been defined in the Insurance Act, it is understood to mean any fact which would influence the judgment of a prudent insurer in fixing the premium for determining whether he would like to accept risk . Any fact which goes to the root of the contract of Insurance and has a bearing on the risk involved would be “Material. In Jaspreet singh Vs. ICICI Home Finance Co.Ltd., Jalandhar and ICICI Home Finance Co.Ltd. Mumbai , RP No. 113 of 2013,the Hon’ble National Commission has held that the person approaching the court and seeking relief must come to the court/forum with clean hands. But in the case in hand complainant being guilty of suppression of material facts, has not only got the Insurance policy in dispute by concealing material fact but she has also approached this Forum with unclean hands. Therefore, she is not entitled to the relief claimed for. Moreover, Hon’ble Supreme Court in the case Satwant Kaur Sandhu Vs. new India Assurance Company Limited 2009(8) SCC 316 went on to held that “When information on a specific aspect is asked for in the proposal form, the assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. Obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. Whether the information sought for is material for the purpose of the policy is a matter not to be determined by the proposer.
7. It has further been held that a mediclaim policy is a non-life insurance policy meant to assure the policy-holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, when an information on a specific aspect is asked for in the proposal form, an 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 or not.”
8. On the basis of the aforesaid contentions, ld.counsel for the opposite party has vehemently contended that complainant has failed to make out a case for grant of relief in the instant complaint and therefore,instant complaint being false and frivolous , is liable to be dismissed and the same may be dismissed accordingly.
9. But, however, from the appraisal of the facts and circumstances of the case, it becomes evident that complainant obtained insurance policy from the opposite party, copy whereof is Ex.C-2 on record which was valid w.e.f.29.5.2014 to 28.5.2015. It is also not denied that the complainant got treatment from Medanta Medicity, Gurgaon and remained hospitalized from 18.2.2015 to 20.2.2015, copy of discharge summary accounts for Ex.OP11. It is also on record that complainant incurred an expenditure of Rs. 49,232/- on her treatment and hospitalization, copy of bill/invoice account for Ex.C-4. It is also not denied that complainant applied for insurance claim with the opposite party. But however, her claim was declined vide repudiation letter Ex.OP14 which reads as under:-
“As per the verification done, it has been noted that patient is a k/c/o Rh Arthritis since past 5 years, which was not disclosed at the time of policy inception, hence claim merits repudiation.”
10. However, in our considered opinion, the insurance claim has been denied without any reasonable excuse. The complainant was treated during her hospitalization for pain in abdomen, nausea and constipation. Arthritis has no nexus with the disease for which the complainant was treated. Moreover, the opposite party has taken the plea that complainant has suppressed the material facts of previous disease suffered by her at the time of filling the proposal form and on that account she was not entitled to the medical claim preferred by her with the opposite party. But, however, opposite party has placed reliance upon discharge summary & alleged report of investigator which is also based on discharge summary, only to contend that the complainant was suffering from renal Arthritis for the last 5 years and RA on saga for the last 4 years. But, however, no treating doctor has been examined to prove the said fact nor any previous medical record of the complainant was pressed into service for reaching the conclusion that there was any such pre-existing disease which was suffered by the complainant prior to the issue of the Insurance policy in dispute. In this connection reliance can be placed on P.Vankat Naidu – Appellant Vs. Life Insurance Corporation of India & Anr.-Respondents 2011(3) CPC 350(Supreme Court) wherein it has been laid down that in our view, the finding recorded by the District Forum and the State Commission that the respondents had failed to prove that the deceased has suppressed information relating to his illness was based on correct appreciation of the oral and documentary evidence produced by the parties and the National Commission committed serious illegality by upsetting the said findings on a wholly unfounded assumption that the deceased has suppressed information relating to hospitalization and treatment. Hon’ble Supreme Court further went on to hold that Since respondents had come out with the case that the deceased did not disclose correct facts relating to her illness, it was for them to produce cogent evidence to prove the allegation. However, as found by the District Forum and the State Commission, the respondents did not produce any tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment. Therefore, National Commission was not justified in interfering with the concurrent finding recorded by the District Forum and the State Commission by making a wild guesswork that the deceased had suppressed the facts relating to his illness.”
11. Further reliance can be had on Life Insurance Corporation of India & Ors –Petitioners Vs. Kunari Devi-Respondent 2009(2) CPC 107 (NC), wherein it has been laid down that to be noted that in support of what is stated in this case sheet neither the doctor who recorded this case sheet was examined nor his affidavit filed as also noticed in its order by the State Commission. So, it was not proved that the life assured was suffering and taking treatment for T.B. even before revival of the policy.
12. Even otherwise also the alleged non disclosure of all the alleged previous disease has nothing to do with the disease for which the complainant underwent the treatment in the present case. In such type of cases, when the earlier disease had no nexus with the present disease suffered by the complainant, no inference can be drawn that the patient was guilty of suppressing the material facts. Reliance in this connection can be had on Santosh Kanwar-Petitioner Vs. Life Insurance Corporation of India-Respondents 2008(3) CPC 562 (NC), wherein it has been held that “The histopathology report indicates fat in the liver and mild pulmonary hemorrhage and oedema in the lung, again not directly related to schizophrenia. There is no history of these two ailments, in respect of the deceased, in the record produced by the LIC. We are,therefore,of the opinion that it was indeed a callousness on the part of the LIC to have put the widow of the deceased to a considerable inconvenience and mental agony by not settling the claim in time ; in fact, repudiating it on the ground which is totally untenable.”
13. Since the alleged history of the patient has no nexus with the disease for which she was treated in Medanta Hospital, therefore, the alleged treatment record could not have been made a ground to reject the claim of the complainant. As a matter of fact the complainant suffered pain in abdomen & for that purpose she was hospitalized on 18.2.2015. As per discharge summary the patient was admitted clinically evaluated and investigated accordingly. She underwent Endoscopy on 19.2.2015 which showed allied PHG mild duodenopathy, Rheumatolotgy consultation was taken for RA and advice followed. During hospital stay she was treated symptomatically and now is being discharged in stable condition.
14. On the basis of the aforesaid contentions, it has been proved on record that the complainant did incur an expenses of Rs. 49,232/- on her treatment and hospitalization for getting herself cured. Though it was a cashless insurance policy, yet complainant was made to bear the expenses from her own pocket and as per terms and conditions of the Insurance policy in dispute, opposite party was under legal obligation to indemnify the complainant.
15. Consequently, we allow the instant complaint and opposite party is directed to pay Rs. 49,232/- alongwith interest @ 6% p.a.from the date of filing of the complaint until full and final recovery. Cost of litigation are assessed at Rs. 2000/-.Compliance of this order be made within a period of 30 days from the date of receipt of copy of order ; failing which, complainant shall be entitled to get the order executed through the indulgence of this Forum. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
