Punjab

Ludhiana

CC/15/35

Peetinder Singh kBhinder - Complainant(s)

Versus

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

A.P.Singh Adv.

31 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 35 of 13.01.2015

Date of Decision            :   31.08.2015

Reetinder Singh Bhinder son of Late Sh.Pritam singh r/o House No.36/41-B, Vikas Nagar, Pakhowal Road, Ludhiana.                                                                                                                                           ….. Complainant

Versus

 

1.M/s Max Bupa Health Insurance Company Limited, through its Managing Director/Directors.

2.Chief Executive Officer M/s Max Bupa Health Insurance Company Limited.

3.Chief Operation Officer M/s Max Bupa Health Insurance Company Limited.

  All c/o B-1/1-2, Mohan Co-Operative Industrial Estate, Mathura Road, New Delhi-110044.

4.Mr.Rajinder Paul Kaushal Agent M/s Max Bupa Health Insurance Company Limited, R/o C/o 863, I-Block, BRS Nagar, Ludhiana, Punjab-141012.

..…Opposite parties

 

                   (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

MS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :       Sh.A.P.Singh Advocate

For OP1 to OP3             :       Sh.Manoj Kumar, Advocate

OP4                               :       Ex-parte.

 

PER G.K DHIR, PRESIDENT

 

1.                          Sh.Reetinder Singh Bhinder filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as ‘Act’) against the OPs, by alleging that he got a Medical Insurance Policy bearing No.30108784201200(Customer ID : 0000130268) of OP1 through its agent i.e. OP4 at Ludhiana with coverage of sum assured of Rs.3,00,000/- for his wife Ms.Enamit Kaur Bhinder. That policy was for the period from 21.06.2012 to 20.06.2013. Wife of the complainant got treatment of “Total Knee Replacement U/:” from Fortis Hospital, Mohali(Punjab) during the period 30.5.2013 to 6.6.2013. Intimation in that respect was submitted to the OPs. An amount of Rs.2,20,451/- was spent on this treatment by the complainant from his own pocket during hospitalization and afterwards. A registered letter dated 25.4.2014 was sent by the complainant to OPs for getting the due amount of the medical treatment of his wife, but to no effect. Original documents consist of duly filed medical claim form, bills of treatment. They were sent to the OPs at address i.e.D-1, 2^nd Floor, Salcon Ras Vilas, District Centre, Saket, New Delhi-110017 as mentioned in the policy. However, the said letter alongwith documents were received back with endorsement of the postal authority that “Addressee left without address”. Complainant was able to ascertain the address of the OPs and again he sent registered letter dated 12.06.2014 alongwith original documents referred above. Medical claim has not been settled by the OPs till date, despite the fact that registered notice through  counsel  Sh .A. P. Singh, Advocate,    was sent on 22.09.2014. Deficiency in service on the part of OPs pleaded for getting directions against OPs to settle the claim of Rs.2,20,451/-. Rs.1,00,000/- on account of loss/damages, but Rs.5500/- as costs of litigation and Rs.25,000/- on account of mental tension, agony and physical suffering also claimed.

2.                          In joint written reply submitted by OP1 to OP3, it is pleaded interalia as if the complainant has not approached the Court with clean hands because of concealment of material facts; allegations in the complaint alleged to be false, frivolous and vexatious and there is no deficiency in service on the part of the Ops; complaint is alleged to be filed with ulterior motive of securing the pecuniary gains. Terms and conditions of the medi-claim policy were duly explained to the complainant and he filled proposal form dated 18.6.2012 after knowing contents thereof. Factum of purchase of policy for the period mentioned above admitted. Complainant was asked to fill up the policy proposal form for disclosing about all the pre-existing disease or pre-existing medical condition. Clause 6 of the policy proposal form is aimed at for asking question as to whether for the last 2 years, inured have consulted a doctor or a health care professional and as to whether within the last 7 years, the insured has been to a hospital for an operation and /or for investigation or insured taking any tablet, medicines or drugs on a regular basis as well as, as to whether for the last 3 months, he had any experience of any health problem or medical conditions, which the insured have been assessed or seen by the doctor. Reply to all the questions were given in negative by the complainant. Believing the information provided by the complainant to be true, Ops issued the policy in question. Admittedly, wife of the complainant remained hospitalized for knee replacement treatment on 30.5.2013. Pre-authorization request for availing cashless facility was sent to the Ops on 24.5.2013. The consultation paper sent alongwith the pre-authorization form stated as if the insured had injury in right leg 3 years back and he needs total right knee replacement. Even x-ray report disclosed that insured had suffered a fracture in right leg. However, the complainant did not mention about right leg fracture in the medical history clause of policy proposal form. Though, treating doctor certified that insured’s fracture is not responsible for her osteoarthritis, but the liability could not be ascertained at that juncture because osteoarthritis is a chronic disease, which does not develop over night. As complainant suppressed the facts qua the medical history of the insured and that is why the cashless facility was denied, despite submissions of claim for reimbursement and pre-authorization. Claim submitted by the complainant was sent for investigation. Investigator collected various medical documents. After going through the discharge summary of the insured, it was found that insured is a known case of epilepsy. The discharge summary also disclosed as if the insured suffered epilepsy attack a year back. Even the discharge summary disclosed that the insured is a known case of psoriasis vulgaris. The discharge summary disclosed as if the discharge is suffering from knee pain and unable to walk since 1 year. When the investigator went through the “preanesthesia checkup (PAC) record” dated 30.5.2013, then it was found as if the insured had been suffering from epilepsy since many years. Information of none these diseases were disclosed in the policy proposal form, despite being directly or specifically asked about the medical history. From the medical documents submitted and collected, Ops found that insured had right leg fracture in 2011, besides having diseases referred above.  In the proposal form, though a specific question has to be replied as to whether the insured suffering from epilepsy, but the complainant did not submit the answer in yes/no against that call. Complainant is alleged to have played fraud with the Ops by not disclosing the pre-existing diseases/treatment/medical history. If Ops would have got the knowledge about the pre-existing medical condition of the insured, then policy would not have been issued or would have been underwritten differently. So, claim of the complainant was rightly rejected by keeping in view of the terms and conditions of Clauses 4(a), 5(g) (3) (ii). Each and every other allegation of the complaint denied by claiming that complainant has no cause of action.

3.                OP4 is ex-parte in this case.

4.                Counsel for the complainant to prove the case of complainant tendered in evidence affidavit Ex.CA of complainant alongwith documents EX.C1 to Ex.C18 and then closed the evidence.

5.                On the other hand, counsel for the OP1 to OP3 tendered in evidence affidavit Ex.RA of Sh.Sumet Bajaj, Chief Manager of OP1 and even tendered documents Ex.R1 to Ex.R6 and thereafter, closed the evidence.

6.                          Written arguments submitted by the complainant and OP1 and OP2. It is not submitted by OP3. Oral arguments addressed and were heard. Records gone through minutely. 

7.                Undisputedly, Medical Insurance Policy qua insured Ms.Enamit Kaur Bhinder(wife of the complainant) was purchased for the period from 21.06.2012 to 20.6.2013 for sum assured of Rs.3,00,000/- and said insured got the treatment of replacement of knee from Fortis Hospital, Mohali by remaining admitted there from 30.05.2013 to 06.06.2013. Insurance Certificate Ex.C2 alongwith details of agent Ex.C3, premium receipt Ex.C5 has been produced by the complainant in support of his claim of purchase of the policy. Documents Ex.C7 to Ex.C9 are produced by the complainant to prove as if Rs.2,20,451/- in fact were spent on total knee replacement-U/L of Ms.Enamit Kaur Bhinder during her hospitalization from 30.5.2013 to 6.6.2013 in Fortis Hospital, Mohali. After spending such expenses on treatment of insured, claim was submitted through letter/claim form Ex.C10 and Ex.R4. Thereafter, investigation was     got conducted by OP1 and investigator submitted report Ex.R5. That report Ex.R5 corroborates the claim of the complainant qua the treatment of insured from Fortis Hospital, Mohali for the above said period. Through report Ex.R5 it was disclosed by the investigator as if the inured was having pain in right knee for the last one year, due to which, she was unable to walk as well as she was suffering from epilepsy for the last many years. Even the investigator reported as if the insured suffered attack of epilepsy one year earlier. Further in Ex.R5, the investigator recorded findings that insured slipped at kitchen two months before her operation and she was having injury on RT leg knee, for which, she was taking medicine from local doctor. It is vehemently contended by Sh.A.P.Singh, Advocate representing complainant that disease of epilepsy has nothing to do with treatment of knee replacement and as such, there is no concealment of material facts, particularly when in the proposal form, there is no column for asking question as to whether the insured earlier suffered from disease of epilepsy. It is also contended that in Ex.R2 as column for mentioning disease of epilepsy either left blank or is not there and as such there is no suppression of material fact. Moreover, it is contended that epilepsy disease is not related to knee replacement. Even if these contentions may be having        ex-facie some force, but in fact they have no legal force at all because of suppression of material facts.

8.                After going through the proposal form, submitted for insured, it is made out that questions were put as to whether within last two years, insured have consulted a doctor or healthcare professional or as to whether within last 7 years, insured have been to a hospital for an operation and/or an investigation or as to whether the insured has been taking medicines or drugs on a regular basis or as to whether within the last 3 months, the insured have experienced any health problems or medical conditions. In reply to all these questions, answer “No” was submitted in the proposal form. Signatures of complainant as proposer are there on this proposal form dated 16.6.2012. So, virtually negative history of medical treatment or of hospitalization was disclosed at the time of submission of proposal form. That proposal form is to form   basis for arriving at contract of insurance. In a contract of insurance, rights and obligations are strictly governed by the policy of insurance and no exception or relaxation can be made on the ground of equity is the proposition of law laid down in case of Deokar Exports Private Limited vs. New India Assurance Company Ltd-2009(2)CLT-15(S.C.). In view of this, in case, an insured while taking medi-claim insurance policy suppressed the fact of ailment, then he/she or his/her heirs not entitled to claim compensation is the proposition of law laid down in case of Satwant Kaur Sandhu vs. New India Assurance Company Limited-2009(4)RCR(Civil)-693(S.C.). So in case the answer given by the insured in the proposal form qua medical history was untrue to his knowledge then in view of  suppression  of   material   facts   qua    health    of   the  insured, the  insurance company will be justified in repudiating the claim is the proposition of law laid down by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.967 of 2008 titled as Life Insurance Corporation of India vs. Smt.Neelam Sharma, decided on 30.09.2014. Same is the proposition of law laid down in case of Life Insurance Corporation of India vs. Santosh Devi-2014(4)CLT-89(N.C.) and in case decided by Hon’ble National Consumer Disputes Redressal Commission, New Delhi bearing Revision No.1122 of 2011 titled as Life Insurance Corporation of India vs. Kuldeep Singh, decided on 3.6.2015. Rather, in case titled as Manager, SBI Life Insurance Company Limited and others vs. Santosh Nagnath Kedari-2014(4)CLT-404(Maharashtra State Consumer Disputes Redressal Commission, Mumbai), it has been laid down that merely because the insured was subjected to medical check-up before the issue of policy, he is not absolved from responsibility of truthfully disclosing correct facts about his health. So certainly suppression of material facts or disclosure of untrue or incorrect information qua material facts of health, will disentitle the insured/claimant from getting claim through. In this case also, the proposer/insured submitted false information deliberately qua medical history and as such, repudiation of claim certainly is justified.

9.                OPD Ticket dated 25.5.2013 issued by Fortis Hospital has been produced on record alongwith Ex.R1 to show that insured was having old healed fracture of upper end of shaft of tibia. Though this problem was having no concern with the complaint of knee pain as per that certificate of dated 25.5.2013, but in fact owing to that fracture earlier, complainant was         bound to have some medical treatment, but despite that she disclosed to have not got any medi science/treatment and as such, there is suppression of material facts in this respect. OP1 through letter dated 24.5.2013 sought opinion of treating doctor if there was any connection between OA Right Knee with the injury patient had 3 years back and in response to that above referred letter,opinion of 25.5.2013 was submitted by Dr.Harsimran Singh, Additional Director-Orthopaedics, Fortis Hospital, Mohali. So, Ops have not rejected the claim summarily, but the same have been repudiated after enquiry.

10.              Ex.R2, Request for Eligibility of Treatment shows that insured was diagnosed for treatment of Osteoarthritis Right Knee G-IV and that is why, surgery for total knee replacement was done. Osteoarthritis is a problem, which develops with the passage of time and not abruptly. In view of that certainly there was suppression of material facts qua not getting medical treatment prior to filling up the proposal form. Certificate dated 30.5.2013 issued by Dr.Manju Wadhwa of Fortis Hospital, Mohali also there on record to establish that insured had fractured Tibia right 3 years back which stood healed/united. Through this certificate, it was further recommended that insured has advanced OA Right knee, due to which, insured needs total knee replacement. Certificate dated 27.5.2013 of Ashirwad Hospital, Ludhiana there on record to show that insured suffered fracture of Tibia in August 2011, for which, she was operated for inserting nailing. Further that certificate discloses that insured remained on regular follow up treatment for that. That certificate further discloses that for the last 3 months, insured complained of knee pain for first time, due to which, she was put on medical treatment. Before that insured never complained of knee pain and nor had shown symptom of arthritis. So this certificate shows that complainant got treatment of earlier fracture in August 2011.

11.              Report of Department of Orthopedic/Discharge Summary of insured for treatment for period from 30.5.2013 to 6.6.2013 reveals that insured is a known case of Epilepsy and she suffered last attack one year back. Further this discharge summary reveals that insured is a known case of Psoriasis Vulgaris. That discharge summary further discloses that insured presented with the complaint of pain in right knee since 1 year associated with difficulty in walking. X-ray of right knee(replacement of which took place through treatment in question) revealed Osteoarthritis with past traumatic healed fracture tibia. This is mentioned in discharge summary under the head “Present Illness”. So, complaint of pain in right knee was felt by the complainant in 2012. As insured was having difficulty in walking as per record of discharge summary and as such, the above mentioned fact discloses that insured/proposer concealed the material facts qua sufferance of insured from diseases of epilepsy and Psoriasis Vulgaris. Despite these sufferings by insured, it is mentioned in the proposal form that complainant has not suffered any disease in the past. This discharge summary is annexed with report Ex.R5. If the facts concerning earlier disease of insured qua sufferance from epilepsy many years, would have come to the knowledge of the insurer, then the latter may have refused to provide medi-claim insurance policy for insured or insurer may have charged heavy premium amount. Statement of complainant even was recorded by surveyor and as such repudiation of claim is justified on ground of suppression of material facts. Whether or not mentioning of disease of epilepsy specifically made in the proposal form qua that duty was on insured/proposer to inform the insurer about earlier diseases, from which, insured was suffering. However, despite that in the proposal form, it is mentioned that insured has not consulted the doctor or a healthcare professional two years prior to filing of the proposal form and even it is mentioned that insured have not experienced any health problem or medical conditions for the last 3 months prior to the filing of the proposal form dated 16.6.2012. So certainly there is suppression of material facts.

12.              In case of Oriental Insurance Co.Ltd. through its Manager vs. Baby Simran Kaur-2014(2)CPR(NC)-504, it has been held that repudiation of medi claim for reimbursement on ground of suppression of factum of pre-existing congenital disease is not proper, particularly when no material produced    on record to show that insured had ever been hospitalized for that disease or was ever operated upon for the same in near proximity of obtaining insurance policy. Same is the proposition of law laid down in case of Tarlok Chand Khanna vs. United India Insurance Co.Ltd.-2012(1)CPJ(NC)-84 and in case of National Insurance Company Limited and another vs. Balwinder Singh-2012(1)CLT-34(State Commission) and in case of Ashok M.Ahuja vs. United India Insurance Co.Ltd. and others-2015(3)AIIMR(JS)-50(Maharashtra State Commission) and as such, it is vehemently contended by counsel for the complainant that repudiation of claim is not justified. After going through ratio of all these cases, it is made out that insurer failed to produce on record any material to prove the hospitalization of the insured in near proximity of time of obtaining the treatment in question in those cases. Contract of insurance is the contract based on faith. Insurer happens to have faith by relying on the assertion/statement in the proposal form. As the contract of insurance falls in the category of uberrima fides and as such repudiation of claim in view of Section 45 of the Insurance Act, 1938 is justified, as and when suppression of material facts is found. As insured deliberately suppressed the facts of previous diseases of Epilepsy and Psoriasis Vulgaris as well as of earlier treatment of fracture in August 2011 and as such we hold that repudiation of claim owing to suppression of material facts is justified. So, there is no deficiency in service on the part of the Ops.

13.              Therefore, as a sequel of the above discussion, the present complaint merits dismissal and same is hereby dismissed. Copy of this order be made available to the parties free of costs as per rules.

14.                        File be indexed and consigned to record room.

 

 

 (Babita)                                  (Sat Paul Garg)                            (G.K.Dhir)

 Member                                   Member                                       President

Announced in Open Forum

Dated:31.08.2015

Gurpreet Sharma.