Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.09/13.01.2017
Manoj Kumar Rajoura s/o Sh. Ram Swaroop
r/o H3/122, Bengali Colony, Mahavir Enclave
New Delhi-45 ...Complainant
Versus
M/s Max Bupa Health Insurance Co. Ltd.
through its Managing Director
Branch Office: 39, 3rd floor, Samyak Tower,
Pusa Road, WEA, Karol Bagh, New Delhi-05 ...Opposite Party
Date of filing: 13.01.2017
Date of Order: 19.05.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh
ORDER
1.1. Complainant bought mediclaim/family health insurance policy no. 30555202201600 from OP against payment of premium of Rs. 13,330/- in the name of complainant and for the insurance risk cover for complainant and his spouse Mrs. Urvashi Kumari Bansal. The policy was effective from 30.07.2016 to 29.07.2017. It is cashless mediclaim/ family health insurance policy. The policy was issued by OP’s branch at Karol Bagh, Delhi.
1.2 During the currency of insurance policy, it was 15.08.2016, when the complainant’s wife Mrs. Urvashi Kumari Banswal was admitted in Sir ganga Ram Hospital on complaint of alleged history of high grade fever, continuous with chills and rigors no-diurnal variations and relieved with taking antipyretics. She had also complained of pain in knee joints, ankle joint and elbow joint for three days. She has 2-3 episodes of vomiting for one day, which were non-projectile, non-billous non blood strained, containing food particles. She also had pain in abdomen, located in epigastrium, mild to moderate intensity, non radiating. No history of dysuria, cough, loose stools or bleeding from any site. She admitted for further evaluation and management. Many tests/examinations were conducted in the hospital on the prescription of doctor and she was dischargedon 17.08.2016 against discharge summary (LAMA).
1.3. Complainant’s spouse was diagnosed for acute febrile illness and pancytopenia, being seasonal viral fever with joint pain and it was not a pre-existing disease, for which certificate was also issued by Sir Ganga Ram Hospital. The complainant furnished requisite details inclusive of ID no. 112350, for cashless mediclaim vide email, however, on 23.08.2016 the OP refused to reimburse mediclaim on the pretext of non-disclosure of pre-existing illness/ medical condition at the time of seeking health insurance policy.
1.4. The complainant’s wife have been subjected to various test/ examinations (viz. Dengu, Antizen ELISA test, CBC, DLC, Bio-chemistry, Haematology, Urine and Blood test) during her stay/diagnosis in the hospital and complainant borne total expenses of Rs. 65,170/- in respect of those tests, doctor consultation, hospital, ICU, medical charges etc. apart from buying medicine from medical store, the bill of medicine was Rs. 547/- .
1.5. The plea of OP of denying medical claim and its repudiation/refusal on the ground of exclusion of pre-existing disease was not justified since complainant’s spouse Mrs. Urvashi Kumari Bansal was admitted in the hospital and she was given treatment not for pre-existing disease but for seasonal viral fever with joint pain. There is no suppression of any fact of disease for which she was treated, reliance is placed on Satish Chander Madan Vs Bajaj Alliance General Insurance Co. Ltd., 1(2016) CPJ 613 (NC) & New India Assurance Co. Ltd. vs B.Y. Srikant, IV (2015) CPJ 380 (NC). Because of repudiation of cashless mediclaim during stay in hospital and also refusal of OP for reimbursement has caused harassment, pain and mental agony to the complainant. There is also deficiency in services. The OP is liable to pay Rs. 95,717/- (being Rs. 65,717/- towards mediclaim, Rs. 20,000/- towards harassment, pain, agony and Rs.10,000/- towards litigation expenses) along with interest as applicable.
1.6. The complaint is accompanying with premium receipt, insurance policy/ certificate, discharge summary dated 17.08.2016 (LAMA), certificate dated 23.08.2016 by Sir Ganga Ram Hospital about admission of complainant’s wife in emergency, email/ reply exchanged and bills in original.
2.1. The complaint is opposed vehemently by OP that it is vexatious, misconceived, based on misrepresentation of facts and it is liable to be dismissed. The complainant is not entitled to any relief in equity, as he approached without clean hands and is guilty of concealing material facts. The complainant asserted that his wife was not suffering from any pre-existing disease, which is contrary to diagnosis as mentioned in the request for eligibility of the treatment and also on the discharge summary filed by the complainant. The patient was diagnosed of pulmonary koch’s on ATT with effect from 22.02.2016, which is prior to inception of the policy. It was not disclosed in the proposal form by the complainant for taking policy. Because of non-disclosure of past illness of insured by the complainant, his claim was repudiated.
2.2. It is settled law that contract of insurance is of utmost good faith and every material fact must be disclosed, otherwise there is a good ground for recession of contract reliance is placed on Mrs. Shnyni Valsan Pmbally vs State Bank of India (Revision Petition No. 3947 of 2013).
The OP further fortifies its contentions while relying upon Satwant Kaur Sandhu vs New India assurance Company Ltd. (2009) 8 SCC 316, in which it was held that any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk or which fact goes to the root of the contract of insurance and has a bearing on the risk involved would be “material fact which the insured is obliged to disclose”. It was further held that when information on specific aspect is asked for in the proposal form, an assured is under 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 for the purposes of the policy or not. The complainant has no right to choose or decide which information is material or immaterial for insurance company. The OP refers IRDA (Protection of Policyholder Interest) Regulation 2002 with reference to proposal form, which has been reproduced in the reply, it reads as :
“(d) “Proposal form” means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake the risk, and in the event of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted.”
Explanation: “Material” for the purpose of these regulations shall mean and include all important, essential and relevant information in the context of underwriting the risk to be covered by the insurer”.
2.3. The complaint is abuse of process of law since complaint is ill-founded and mala-fide vis-à-vis there is no deficiency of any service to complaint of. The OP has also filed copy of proposal form dated 29.07.2016 with reply to highlight that the complainant had suppressed the material information and pre-existing disease was not disclosed in the proposal form. Simultaneously, the OP refers caution clause (5) of General Selection: Section III of the proposal form as well as Clause 6 of Coverage Selection: Section I of the proposal form to demonstrate that complainant was duty bound to declare all the material information in the proposal form and also relevant information in between the timings of proposal form and issue of policy if new information comes to light, however, the complainant furnished answer ‘no’ to all the question put to him with respect to himself and his wife. The reply further reproduced certain other general section clause no. 7 and general plea of utmost good faith in the contract of insurance between the parties to emphasise that complainant had suppressed and concealed information of pre-existing disease of his wife, which he was supposed to mention in the proposal form. The complaint is liable to be dismissed.
2.4. The reply is accompanying with authority letter, proposal form, copy of insurance policy/cover, premium receipt, terms and conditions of policy, denial of authorization-letter.
3. At the stage of evidence, complainant Manoj Kumar Rajoura filed his detailed affidavit of evidence, which also refers all the documents filed with the complaint to prove his case against the OP. On the other side, OP filed affidavit of Shital Patwa, its constituted Attorney and this affidavit in detail is on the pattern of reply and all the document filed with the reply has been relied upon.
4. Both the parties have filed their respective written arguments, the written arguments are compilation of pleadings and evidence. The parties were also given opportunity to make oral submissions, accordingly Sh. Vijay Rajoura, Advocate for complainant and Ms. Simran Verma, Advocate for OP made the final submissions. The complainant has also relied upon Satish Chandan Madan vs Bajaj Allianz Gen. Ins. Co. Ltd. (I) 2016 CPJ 613 (NC), wherein it was held that hypertension is a common ailment, it cannot be controlled by meditation and it is not necessary that a person suffering from hypertension would always suffer a heart attack and treatment of heart problem cannot be termed as claim in respect of pre-existing disease. Further reliance is placed on New India Assurance Co. Ltd. vs B.Y. Srikanta IV 2015 CPJ 380(NC), wherein it was held that insurance company could not produce any evidence to show that Parkinson disease is a pre-existing disease and the same was not disclosed in the proposal form by the complainant and repudiation held was not justified. On the other side, OP reiterates the case law already mention in the reply, apart from the policy was cancelled for want of disclosure of material facts in consonance with clause 3 of the policy, complainant himself has already filed emails with the complaint.
5. (Findings) - The contentions of both the sides are considered analytically. In fact, it is a case based on documentary record of both the sides coupled with other oral narration by the parties. By taking stock of all the circumstances and evidence, the complaint is dismissed for the following reasons:-
(a) The proposal form of complainant proved by the OP is not disputed by the complainant.
(b) The certificate dated 23.08.2016 issued by Sir Ganga Ram Hospital of admission of complainant’s wife in emergency and proved by the complainant is also not disputed by the OP.
(c) The discharge summary (LAMA) showing date of admission on 15.08.2016 and date of discharge on 17.08.2016 is the period between validity of policy from 30.07.2016 to 29.07.2017. It is also not disputed by the parties.
(d) As per discharge summary, the patient was diagnosed of acute febrile illness with arthralgias, pulmonary koch’s on ATT w.e.f. 22.02.2016, pancytopenia under evaluation.
However, according to complainant his spouse was given treatment for acute febrile illness with arthralgias pancytopenia under evaluation during her admission in Sir Ganga Ram Hospital, for which medical expenses were incurred and claim was refused by the OP.
Pulmonary koch’s on ATT was not subject matter of treatment from 15.08.2016 to 17.08.2016 and it cannot be construed pre-existing disease for other treatment given in the hospital but complainant was refused reimbursement of the medical bills. However, the logics are misplaced on the following grounds:-
(i) the proposal form is general in nature and there is a specific column meant for medical history and the complainant has given answer ‘no’ for all queries of previous medical conditions or treatment in respect of him and in respect of his spouse Mrs. Urvashi Kumari Bansal despite she wass diagnosed of Pulmonary tuberculosis on ATT from February 2016,
(ii) it was not a condition precedent that the pre-existing disease is to be disclosed only in reference to medical claim for that disease, whereas pre-existing disease is to be disclosed as per norm and utmost good faith of insurance contract, to make insurer to exercise the discretion for entering into insurance contract or otherwise premium component,
(iii) the discharge summary clearly mentions diagnose of disease Pulmonary koch’s on ATT w.e.f. 22.02.2016, which is prior in time from the date of insurance with effect from 30.07.2016 and the proposal form is of 29.07.2016. The complainant has not disclosed about this pre-existing disease in the proposal form.
(e) The complainant relies upon Satish Chandra Madan case as well as New India Assurance Co. Ltd. case that hypertension is not a pre-existing disease or there was no evidence by the insurer about Parkinson disease, however, the present case is distinguishable from the nature of diagnosed as complainant’s wife was suffering from Pulmonary koch’s on ATT w.e.f. 22.02.2016,
(f) there is correspondence by way of email between the complainant and the OP, it has been filed by the complainant (page no. 19-21 of his paper-book) and OP has specifically not only repudiated the claim on the ground of non-disclosure of pre-existing illness medical condition being part of insurance contract but also declared that OP is unable to continue the policy coverage any further, which was also reiterated in the evidence by OP,
(g) since the complainant has not disclosed about pre-existing disease in the proposal form and the complainant is still perceiving and justifying that treatment was not sought for Pulmonary koch’s on ATT w.e.f. 22.02.2016 but for other ailment, consequently it would not construe as non-disclosure, the reasons are misplaced in view of terms of proposal form and the terms and conditions of insurance contract, which OP has rightly referred and
(h) the complainant failed to prove his complaint as well as to rebut the proof of case of OP.
6. The complaint fails. The complaint is dismissed.
7. Announced on this 19th May, 2023 [वैशाख 29 , साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
