Delhi

East Delhi

CC/570/2016

ANKUR GUPTA - Complainant(s)

Versus

MAX BUPA HEALTH INS - Opp.Party(s)

26 Sep 2018

ORDER

            DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT of Delhi

              CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092  

                                                                                           Consumer complaint no.        570/2016

                                                                                           Date of Institution               26/09/2018

                                                                                           Order reserved on              26/09/2018        

                                                                                           Date of Order                     01/10/2018                                                                                  

In matter of                                                                                 

Mr. Ankur Gupta, adult                                                               

s/o- Sh Balkishan Gupta

R/o- 251, AGCR Enclave,  

Vikas Marg, Delhi 110092……..……..……….……………...…………….Complainant

                             

                                      Vs

 

The Max Bupa Health insurance Co. Ltd.

Pusa Road Branch, 39, Samyak Tower,

3^rd Floor, Pusa Roade, New Delhi ...................………....…………..Opponent

 

Quorum        Sh Sukhdev  Singh        President

                     Dr P N Tiwari               Member

                     Mrs Harpreet Kaur      Member                                                                                             

 

Order by Dr P N Tiwari  Member -

Brief Facts of the case  - 

                                                                                            

Complainant had Happy Family Floater policy from OIC from 20/04/2013 till 19/04/2016 for self, his wife and two children. It was stated that his policy continued and never took claim (Ex CW1/Anne. C2). Thereafter, complainant opted health companion plan from present OP/ Max Bupa Health Insurance Co. for sum insured Rs 7.5 lacs from 20/04/2016 to 19/04/2017 vide policy no 30522871201600 (Ex CW1/Anne.C1) with all the terms and conditions.  

It was stated that Km Sania Gupta, aged 11 years suffered suddenly breathlessness, cough and cold so was admitted on 09/05/2016 and was discharged on 13/05/2016. As cashless was denied, so complainant paid hospital bill of Rs 46,685/. Complainant filed claim with OP vide claim no. 189434 which was repudiated and intimated through letter dated 23/06/2016 for non disclosure of ailment Bronchial Asthma which was present since birth (Ex CW1/Anne. C4) and OP also cancelled policy.

It was stated that complainant also submitted health letter from his family doctor stating that claimant never had such ailment and never took any treatment (Ex CW1/Ann. C5) so sent letter to OP for reconsideration of his claim, but no reply was received. Thereafter, email was sent to OP on 03/08/2016 and also filed complaint before Insurance Ombudsman which was too dismissed (Ex CW1/Anne 7 & 8). Complainant filed his complaint case claiming Rs 1,69,485/- with 18% for pendent lite and reviving his cancelled policy. Complainant also filed an application under Section 13(3B) of the Consumer Protection Act for getting interim relief as directing to OP for continuation of policy.

OP denied all the facts and alleged allegations stated in the complaint in their written statement though it was admitted that the said policy was issued by the OP for a sum insured Rs 7.5 lacs, but after the scrutiny of all the treatment papers taken from Max Super Specialty   Hospital, Delhi where treatment was done for Bronchial Asthma. After investigation and taking statement from the complainant / insured, it was revealed that his daughter was suffering from Bronchial Asthma since birth and his wife also have Bronchial Asthma. After taking his signature, claim was repudiated as per law laid down in Supreme Court’s judgment “Satwant Kaur Sandhu vs New india Assurance Co. Ltd. (2009) 8 SCC 316 which laid down that policy is issued on good faith and policy seeker has to disclose all the material facts in the policy proposal form (Ex OPW1/Anne. R1 & 2). OP had also annexed discharge Summary (Ex OPW1/Anne. R3) which clearly showed that “k/c/o Bronchial Asthma” and his daughter was admitted for controlling sudden attack of Bronchial Asthma. 

OP also submitted references of few judgments where repudiation was justified for non disclosure of material facts in policy proposal form as under-

1. Seemax Constructions Pvt Ltd vs SBI, AIR 1992,Delhi 197.
2. SP Chengalvarya Naidu vs Jagannath, AIR 1994 SC 853
3. Bam Dev vs United India insurance Co. Ltd. I (1994)CPJ 425.
4. PC Chacko & others vs Chairman LIC, CA 5322/2007, SC
5. New India Assurance Co. Ltd. vs Pradeep Kumar, I (1997) CPJ 94 Delhi.

Hence, repudiation was justified by OP and policy was rightly cancelled as claim was within 30 days of inception of policy based on policy terms and conditions. So, complaint may be dismissed.  

Complainant submitted his rejoinder and denied all the replies submitted by OP in their written statement. He relied on all the facts of his complaint as true and correct. He submitted evidences through his own affidavit and stated on oath that all his evidences were correct which were submitted with complaint as policy documents, terms and conditions, discharge summary and claim form. It was stated that OP had not submitted any evidence supporting to Bronchial Asthma as pre existing ailment. Complainant also supported his fact of family doctor’s certificate stating that claimant never suffered from Bronchial Asthma.

Complainant had also submitted certain references of judgments where it was laid down that OP had to submit evidence of pre existing ailment prior to the inception of policy under these citations as-

a)- NIAC Ltd vs Murari Lal Bhusri, NC 2011(3) CPJ 198.

b)- NIAC vs Bimla Devi Jhunjhunwala, NC 2011(4).

c)- Sushil Kumar Jain vs UIIAC, NC 2012(1)

d)- Dr T Suresh vs OIC, AIR 86 AP.

e)- Biman Krishna Bose vs UIIAC, 2001 (6)ScC 477.

Complainant also submitted few more references of State Commissions where repudiation was not justified by OP. He stated that OP had mentioned wrong fact in their rejection letter as claimant was suffering from Bronchial Asthma since birth. Also, OP had not submitted any such evidence pertaining to pre existing ailment.        

OP submitted evidences on affidavit through Md. Shital Patwa, AR with OP and reaffirmed on oath that their repudiation was justified on the basis of non disclosure of material facts “Bronchial Asthma” in policy proposal form which was a vital document for OP which was not disclosed by the complainant. It was well accepted fact that OP issued policy based on good faith and all the information disclosed by the policy seeker. Here complainant did not disclose ailment of Bronchial Asthma, whereas his wife too was suffering and this fact was stated by the complainant during investigation. Hence, repudiation of claim was justified by OP based on policy terms and conditions and cancellation of policy was also based on the policy terms and conditions. OP also stated that all evidences were on record and supported by their affidavit.  

OP and complainant had also filed their written arguments hence were taken on record.

 

Arguments were heard from both the party counsels. After perusal of file, order was reserved.

After perusal of all the documents on record including terms and conditions of the policy, it is clear that present policy from OP as Health Companion Family Floater Policy bearing no. 30522871201600 was issued after taking policy proposal form from the complainant/policy seeker for a sum insured Rs 7.5laces wef 20/04/2016 to 19/04/2017 and present OP had given portability benefits to complainant and other insured members details on page 4/32 column 3^rd where 30 days waiting period has been waived off and on page 5/32 pre existing  portability benefits were given to each insured members. OP had also mentioned that portability benefits terms if altered, would inform the complainant, but OP had waived off 30 days conditions for nonpayment of claim does not apply.

The second clarification would arise for cancellation of policy, which seems to be totally irrelevant because by providing portability benefits from OIC to present OP, means the continuity of mediclaim policy and no evidence of previous claim or indoor treatment records being submitted by the OP. Hence, cancellation cannot be sustained under the Insurance laws.

As far as taking consideration of family doctor’s certificate is concerned, the concerned family doctor is a pediatrician and specialist (MD) in allopathy. So, it cannot be presumed that doctor has given wrong certificate.

As far as pre inception policy medical checkup is required, all the members were less than 45 years, so mandatory medical checkup is not required. It was necessary to investigate for any Pre existing ailments, OP had properly investigated before labeling claim as ‘non disclosure’ by the insured. By scrutinizing the treatment papers of Max Hospital, it is seen that acute attack of breathlessness was managed conservatively and symptomatically. No detailed investigation was required as PFT, Blood Gas Analysis and post hospitalization long term preventive therapy consist of steroids systematic or orally for long time. So, by going through all the treatment documents, it cannot be said that claimant was an old case of Bronchial Asthma, whereas she was clinically diagnosed as a case of Mild Intermittent variety of POD (Pulmonary Obstructive Disease) as Acute Moderate Exacerbation of Bronchial Asthma. The present diagnosis in discharge summary was LRTI which does not mean that claimant was a case of Bronchial Asthma. The abbreviation ‘LRTI’ includes many seasonal and chronic ailments. So, repudiating claim under LRTI (Bronchial Asthma) and statement of her father/insured for the said diagnosis cannot be not justified for repudiation until proved with concrete evidence by OP. Also LRTI is not a Pre existing ailment, though complainant has not submitted his hospital bill on record and the same was neither filed by OP nor objected, so we accept the same. Hence, we come to the conclusion that this complaint has merits and so we pass the following order as under –

1. OP shall pay claim amount Rs 46,685/-with 6% interest from the date of filling of this complaint within 30 days after receiving order copy.
2. OP shall also pay compensation of Rs 10,000/-which shall include litigation charges also.  
3. There shall be no order to cost or any award or direction.

Copy of this order be sent to the parties as per the Section 18 (6) of the Consumer Protection Regulation, 2005 (in short the CPR) and file be consigned to Record Room under Section 20(1) of the CPR.

 

(Dr) P N Tiwari  Member                                                                         Mrs  Harpreet Kaur  Member                                                                                                                        

                                      

                                                  Shri  Sukhdev Singh  President