Punjab

Ludhiana

CC/14/499

Naresh Ahuja - Complainant(s)

Versus

Max Bupa Health Ins.co.Ltd - Opp.Party(s)

26 Feb 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                                 Complaint No: 499 of 17.07.2014

                                                                                                                    Date of Decision: 26.02.2015

                                                                                                                   

Naresh Ahuja S/o Sh.Darshan Lal, H.No.45/7, Model Gram, Ludhiana.

……Complainant

Versus 

1. Max Bupa Health Insurance Co. Ltd., 3^rd Floor, Kunal Towers, The Mall, Ludhiana, through its Branch Manager.

2. Max Bupa Health Insurance Co. Ltd, D-1, 2^nd Floor, Salcon Ras Vilas, District Courts, Saket, New Delhi-110017, through its Authorized Manager/Representative)

…..Opposite parties 

 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:     Sh.R.L.Ahuja, President

                   Sh.Sat Paul Garg, Member

                   Smt.Babita, Member

 

Present:       Sh.C.S.Chopra, Advocate for complainant.

                   Sh.G.S.Kalyan, Advocate for OPs.

 

                   

                        ORDER

 

(SAT PAUL GARG, MEMBER)

 

1.               Present complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Sh.Naresh Ahuja S/o Sh.Darshan Lal, H.No.45/7, Model Gram, Ludhiana (herein-after in short to be referred as ‘complainant’) against Max Bupa Health Insurance Company Limited, Kunal Towers, The Mall, Ludhiana, through its Branch Manager and others (herein-after in short to be referred as ‘OPs’)- directing them to pay the claim amount of Rs.2,32,106.33p, to pay Rs.5000/- as fee of legal notice, to pay Rs.2,50,000/- as compensation for mental harassment, mental pain and mental torture including interest @ 24% from the date of filing of the claim, to pay Rs.10,000/- as litigation expenses, to pay Rs.2500/- as Misc. expenses, to pay Rs.24% interest on the amount of the claim from the day the complainant was discharged from the hospital till the disposal of the complaint.

2.                Brief facts of the complaint are that the Ops took over the policy of the complainant, which the complainant was renewing for the last many years from the United India Insurance Co. Ltd. under portability and issued the complainant policy no.30226774201300 for the period 21.6.13 to 20.6.14 and the OPs gave all the benefits to the complainant as the complainant was receiving his earlier policy and further the Ops took over the policy from United India Ins.Co. Ltd, with all the existing benefits. Thereafter the complainant was admitted to Ivy Hospital on 16.12.13 and was discharged on 25.12.13. The complainant applied for the cashless facility as assured by the OPs, at the beginning when the complainant changed over his policy, but the same was denied by the OPs. Thereafter the complainant submitted all the documents and original bills, original reports to the OP1, but the Ops never gave any reply to the complainant and thereafter when the complainant went to the office of the OP, the officials of the OPs always put off the matter on one or the other false pretext assuring the complainant that his claim is under process and he will be reimbursed his claim, but thereafter waiting for long, the complainant was not paid his claim and thereafter the complainant came to know from the advisor of the OPs, who got the policy for the complainant that his genuine claim was rejected. Complainant also issued legal notice, through his counsel Sh.C.S.Chopra to the OPs, through Regd./A.D on 15.2.14, which was duly received by the Ops, but the Ops never gave any remedy to the complainant. Claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint.

3.                On notice of the complaint, OPs appeared through their counsel and filed written statement taking preliminary objections that the complainant has not come to this Forum with clean hands; the complainant has misrepresented and concealed the material facts from this Forum; the complainant is guilty of Suppressio very and suggestion falsi and the present complaint is liable to be dismissed. Further stated that the Ops had explained entire features of the said health insurance plan to the complainant and the complainant out of his own free will and volition agreed to terms and conditions of the policy. The complainant was asked to fill the policy proposal form in which, the complainant was supposed to disclose all the pre-existing diseases or pre-existing medical conditions. Further stated that the complainant ported his policy to that of the answering OPs and the said policy commenced from 21.6.13. The complainant got hospitalized in DMC Hospital for fever of unknown origin and pre-authorization request for availing cashless facility was sent to the answering OP on 6.12.13, vide pre-authorization ID 35222. However, in the pre-authorization request form, it was mentioned that the complainant had been suffering from OSA since 5 years and Hypertension (HTN) since 7-8 years. This clearly means that the complainant was suffering from the said medical condition since before the inception of the policy, but did not disclose about it in the policy proposal form despite it being a material fact. This being a pre-existing medical condition that was not disclosed at the time of filling in the proposal form, the request for cashless facility was declined for non-disclosure of material facts under clause 4 (a) of the policy terms and conditions. Thereafter the complainant got admitted in IVY Hospital, Ludhiana on 16.12.13 and pre-authorization request for cashless facility was received on the same day, vide pre-auth ID 35867. However, the same was also rejected on the ground of non-disclosure of material facts in face of the previous rejection of pre-authorization request vide Pre auth ID 35222. Further stated that complainant has falsely alleged that he has filed a claim with the OPs and no repudiation letter was supplied to him. The truth of the matter is that after rejection of his two pre-authorization requests for hospitalization at DMC Hospital and IVY Hospital in face of non-disclosure of material facts, the complainant did not file any claim with the OPs. Therefore, the question of issuing a repudiation letter does not arise. The complainant has not filed any documentary proof of the alleged claim filed by him. On merits, admitting the some of the paras being matter of record an denying the contents of some of the paras prayed for the dismissal of the complaint.

4.                Ld. counsel for complainant has adduced the evidence by way of duly sworn affidavit of complainant Sh.Naresh Ahuja Ex.CW1/A, wherein the same facts have been reiterated as narrated in the complaint and also attached documents Ex.C1 to Ex.C9. On the other hand, Ld. counsel for Ops has adduced the evidence by way of duly sworn affidavit of Sh.Vikram Jain, Senior Manager Max Bupa Health Insurance Co. Ltd. B-1/1-2, Mohan Co-operative, Industrial Area, Mathura Road, New Delhi Ex.RA, wherein, the same facts have been reiterated, as narrated in the written statement and also attached documents Ex.R1 to Ex.R5.

5.                Case was fixed for arguments. Ld. counsel for complainant filed written arguments averring that there is no concealment of mis-representation of material facts on the part of the Ops and there is no ulterior motive to secure the pecuniary gains and further denied that before issuing the policy, the complainant was asked to fill in policy proposal form. Further denied that answering OP had explained entire features of the said health insurance plan to the complainant and the complainant out of his own free will and volition agreed to terms and conditions of the policy. Further it is wrong and denied that before issuing policy, the complainant was asked to fill the policy proposal form in which, the complainant was supposed to disclose all the pre-existing diseases or pre-existing medical conditions, whereas the OPs took over the policy under portability scheme and prior to the takeover by the OPs the policy was running for more than five years and the same was disclosed to the OPs and thereafter the OPs issued the policy to the complainant without any exclusion and giving all the existing benefits to the complainant. Clause no.6 is matter of record and not applicable to the complainant as the policy was taken over under portability scheme. The Ops obtained only the signatures of the complainant in proposal form and the form was filled in by the OPs himself and the policy was issued under the portability scheme. The complainant renewed the policies for the last 5 years and further averred that the complainant getting the policy renewed for the last 5 years, even then the OPs did not respond to the complainant regarding his legismate claim of Rs.2,32,106/-. Thus alleged deficiency in service and unfair trade practice. Ld. counsel for complainant also relied upon the judgement passed in case titled as Praveen Damani Vs Oriental Insurance Co. Ltd.-IV (2006) CPJ 189 (NC).

6.                Refuting the allegations leveled by the OPs, Ld. counsel for OPs filed written arguments averring that the complainant sent pre-authorization through hospital and as per pre-authorization request sent by the hospital, the complainant is suffering from Respiratory disease, hypertension since 7-8 years, OSA since 5 years. As per past medical history mentioned in Ex.R1, the complainant did not mention the above said pre-existing health conditions, so the claim was rightly declined by the OPs under clause 4-A of the admitted policy terms and conditions between the parties. The Ops have declined the claim of the complainant vide Ex.R4 on the ground of non discloser of material facts at the time of proposal of the policy. In this manner the complainant had not disclosed the pre-existing health condition at the time of policy. The claim was rightly declined as per the terms and conditions of the policy. After going through the pre-authorization request and proposal form, it is clear that the complainant has concealed the pre-existing health condition at the time of policy. In this case, policy alongwith terms and conditions is admitted. Ld. counsel for OPs also relied upon the judgements passed in cases titled as Deokar Exports Pvt. Ltd. Vs New India Assurance Company Ltd-2009 (2) CLT 15, LIC of India Vs Premlata Aggarwal- 2012 (2) CLT 182.

7.                We have gone through the pleadings of the complainant as well as defence taken by the OPs and gone through the written arguments submitted on behalf of both the parties and also perused the entire record as well as judgements placed on file.

8.                It is evident that the complainant availed the insurance policies from United India Insurance Co. Ltd. for the last many years thereafter after portability complainant get his policy shifted to Max Bupa Health Insurance Co. Ltd. i.e. OPs, who issued policy no.30226774201300 for the period 21.6.13 to 20.6.14 and he was treated for the last more than 4 years. The complainant was got admitted in IVY Hospital, Ludhiana on 16.12.13 and pre-authorization request for cashless facility was sent to OPs thereafter the complainant submitted all the documents, but this claim was repudiated by the OPs on account of pre-existing disease under the exclusion clause 4 (a) of the policy terms and conditions, which is as follows:-

“4. Exclusions: We shall not be liable under this policy for any claim in connection with or in respect of the following:

a. Pre-Existing Conditions

Benefits will not be available for Pre-existing Conditions until 48 months of continuous coverage have elapsed since the inception of the first policy with us”

                   It is also deposed by the complainant that he has filed the claim in complete form with the OPs and OPs had assured that claim will be justly processed and amount reimbursed to the complainant. OPs alleged that the complainant was suffering from diabetes, while reports under the head Sections shows that Tumor tissue with soft tissue resection margin (O), Resection margins (A-C and E), Tumor proper (D), SMG (F and G), Level la and Ib lymph nodes (H-L), Level II to VI lymph nodes (M-S). Further under the Head Impression mentioned as follow:-

“Invasive squamous cell carcinoma, well differentiated with negative resection margins and regional lymph nodes negative for any metastatic tumor deposits (0/24)

            Pathological Stage:- pTI pN0 pMx.”

 

                   In this way, the claim of the complainant is very much valid, as he was treated for the cure from the disease Carcinoma i.e. Cancer.

9.                Sequel to the above discussion, the present complaint is allowed and OPs are directed to settle and pay the claim of the complainant, as per the terms and conditions of the policy and if some documents of the claim are still required, the same may be submitted within 15 days on receipt of copy of the order. Further Ops are directed to pay Rs.2500/-(Two thousand five hundred only) as compensation and litigation expenses compositely assessed to the complainant. Order be complied within 30 days of receipt of the copy of the order, which be made available to the parties, free of costs. File be consigned to record room.

 

                   (Babita)                          (S.P.Garg)                      (R.L.Ahuja)

                   Member                           Member                         President

Announced in Open Forum.

Dated:26.02.2015 

Hardeep Singh