BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.89 of 2015

Date of Instt. 05.03.2015

Date of Decision : 09.03.2016

Kulbhushan son of Nand Lal R/o EK-228, Phagwara Gate, PS Division No.3, Jalandhar.

..........Complainant Versus

Max Bupa Health Insurance Co.Ltd., Kunal Towers, Mall Road, Ludhiana, through its Branch Manager.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act, 1986.

Before: Sh.Ashwani Kumar Mehta (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.DS Dhillon Adv., counsel for complainant.

Sh.AK Gandhi Adv., counsel for OP.

Order

Ashwani Kumar Mehta (President)

1. Complainant Kulbhushan have filed the present complaint against Max Bupa Health Insurance Co.Ltd opposite party (OP) under section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as 'Act') on the allegations of deficiency in service, unfair trade practice and negligence with a further prayer to direct the OP to pay Rs.3,05,699/- with interest alongwith compensation of Rs.50,000/- and Rs.22,000/- as litigation expenses.

2. The case of the complainant in brief is that complainant obtained medical insurance vide policy No.30282756201300 which was in operation from 23.12.2013 to 22.12.2014 for consideration of Rs.24,246/- for the purpose of his health insurance as well as health insurance of his family members i.e. Ritu Thukral(wife), Pankit Thukral (son) and Divya Thukral (daughter) and each of them was individually covered for sum of Rs.5 Lacs and floater sum insured was Rs.15 Lacs and as such totally for Rs.35 Lacs; that complainant had disclosed all true facts to the OP as per query of the agent of the OP and nothing was concealed from him and complainant also offered for his and his family medical examination but the OP assured the complainant that as complainant is less then 45 years of age, there was no need of medical test; that unfortunately Ritu Thukral wife of the complainant fell ill on 20.1.2014 and complainant took her to their family doctor and she was admitted in Patel Hospital, Jalandhar on 10.2.2014 where she took treatment through various test and at last doctor disclosed that Ritu Thukral is suffering only from fever and was discharged from hospital on 13.2.2014; that complainant was giving medicines to his wife as advised by the doctor but there was no change in the condition of his wife and then complainant took his wife to DMC Hospital, Ludhiana and was admitted on 19.4.2014; that again various tests were conducted and doctor disclosed that wife of the complainant is suffering from fever only and after 11 days, she was discharged and was advised to continue with medicines at home; that unfortunately health of Ritu Thukral deteriorated inspite of taking the medicines and she was again admitted in DMC Hospital, Ludhiana on 4.6.2014 and again number of tests were conducted and then doctor advised her to take to Hero Heart DMC, Ludhiana on 6.6.2014 and doctor came to conclusion that she was suffering from fever only and Ritu Thukral was discharged on 15.6.2014 from the hospital; that complainant contacted the OP for claim and also provide details of the expenses supported by bills as per requirement of OP and complainant also completed all the formalities and requirements for settlement of his claim and filed three claim forms i.e. Rs.74,282/- of Patel Hospital, Jalandhar, Rs.1,30,887/- of DMC Hospital, Ludhiana and Rs.1,00,540/- of Hero Heart DMC, Ludhiana i.e. total for Rs.3,05,699/- but inspite of fulfilling all the requirements desired by the OP and inspite of repeated visits of the complainant, the claim of the complainant was not passed and then OP vide a letter declined the claim of the complainant on the ground that Ritu Thukral was suffering from pre-existing disease at the time of inception of the insurance policy which was not disclosed in the proposal form though Ritu Thukral was suffering from CLD with Low Grade Fever since February 2012 whereupon complainant approached doctor at DMC, Ludhiana and came to know that inadvertently or due to typographical mistake, wrong date was typed as February 2012 and head of the Gastroenterology Department of DMC, Ludhiana gave a certificate in this regard in which it was mentioned that history of fever is for last two months and not from 2012; that claim of the complainant was repudiated on the basis of typographical mistake but even after providing certificate of DMC Hospital, Ludhiana, the OP is delaying the matter on one or other pretext and then finally refused to pay the claim and it amounts to deficiency in service, unfair trade practice and negligence on the part of OP. Hence, the complaint was filed.

3. After formal admission of the complaint, notice was issued to the OP and OP appeared through counsel and filed written statement contesting the complaint on the preliminary objections that complaint is false, vexatious and has been filed with a malafide intention to harass the OP by misusing the process of law and to avail undue advantage; that the complainant has not only concealed the material facts from the Forum but also misrepresented and has made false averments; that complainant filled a proposal form at the time of taking the insurance policy and complainant was required to disclose his and his family medical history in the proposal form but no medical history was disclosed for any person proposed to be insured and complainant was also provided terms and conditions of the insurance policy; that only those persons who are 45 years or above age and have disclosed any kind of medical history in the proposal form are required to undergo medical examination but as the complainant and other persons were below 45 years of age nor any medical history was disclosed, so medical test were not conducted and believing information provided by complainant to be true, OP decided to insure the complainant and his family; that the OP received a pre-authorization request for cashless facility from Patel Hospital, Jalandhar on 13.2.2014 for treatment of Ritu Thukral and the medical documents sent alongwith request stated that wife of the complainant had Chronic Liver disease and Hepatitis-C and as such request for cashless treatment was denied as there was possibility of disease being pre-existing at the time of issuance of policy; that the OP again received pre-authorization request for complainant's wife treatment for the same ailment on 8.6.2014 from DMC Hospital, Ludhiana and same was also denied due to same reasons; that on 23.9.2014, the OP received a claim form from the complainant for reimbursement of expenses for three hospitalization of the complainant's wife during 12.2.2014 to 13.2.2014, 19.4.2014 to 30.4.2015 and 6.6.2014 to 15.6.2014 for Rs.3,05,699/- and it was found that complainant's wife was hospitalized for five times in between February 2014 to June 2014 for treatment of Hepatitis-C and Chronic Liver Disease and considering that wife of the complainant was suffering from Chronic Liver Disease, an investigation was carried whether wife of the complainant had these diseases before the inception of the policy on 23.12.2013 as the first pre-authorization request was received on 13.02.2014 i.e. in less then 2 months after the issuance of policy and during investigation, it was found that wife of the complainant was suffering from low grade fever since February 2012 and during routine test, it was found that complainant's wife was suffering from HCV+ive and has CLD (Chronic Liver Disease) and record also shows that wife of the complainant had undergone blood transfusion 16 years back and also had Jaundice 16 years back but these information were not mentioned in the proposal form and claim of the complainant was repudiated as it was established that complainant's wife ailment was pre-existing and it finds support from medical literature available on Wikipedia; that USG abdomen report dated 27.1.2014 shows that Mrs.Ritu had early changes of cirrhosis of liver with Splenomegaly which means enlargement of spleen and it shows that disease of the complainant was more than six months old; that pre-existing diseases are not covered under the policy until the expiry of 48 months of continuous coverage with the insurance company but complainant had not disclosed true medical history of his wife and as such claim was rejected under clause 4-A; that the policy has not been cancelled nor the claim has been repudiated for non-disclosure and complainant's wife would be eligible for cover for her pre-existing disease after 48 months of continuous coverage have elapsed with the OP insurance company; that the claim of the complainant has been rightly denied by the OP as the same is barred by clause 4-A and 4-B of the insurance policy; that complainant has not come to the Forum with clean hands and is guilty of misrepresentation and suppression of material facts; that the insurance contract involves utmost good faith and policyholder is bound to reveal all the relevant material facts to avail the insurance policy and concealment of material facts regarding medical illness is valid ground for rejection of claim and complaint; that intricate and complicated question of facts and law are involved in this case and voluminous evidence is required to arrive at the correct conclusion and as such complainant should be relegated for remedy before Civil Court of competent jurisdiction. On merit, insurance policy in question is not denied though the complaint was contested on the same lines as were taken in the preliminary objections. Other allegations of the complaint were also denied with a prayer to dismiss the complaint with cost.

4. Both the parties were given sufficient opportunities to lead evidence in order to prove their respective cases.

5. In support of his complaint, complainant has tendered into evidence affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C9 and closed evidence.

6. On the other hand, learned counsel for the OP has tendered affidavit Ex.OPA alongwith copies of documents Ex.OP1 to Ex.OP13 and closed evidence.

7. We have carefully gone through the record and also heard the learned counsels for the parties.

8. The learned counsel for the complainant contended that terms and conditions of the policy Ex.C2 define emergency as well as emergency care and it shows that in case of swear illness which occurs suddenly and unexpectedly then treatment can be taken if immediate treatment is required in order to prevent death or serious long term impairment. He further contended that complainant took health policy from the OP for himself as well as his family w.e.f 23.12.2013 to 22.12.2014 and disclosed the relevant facts in the proposal form which is proved on the file as Ex.C3. He further contended that complainant even offered for medical examination of all insured of the insurance policy but same was not obtained by the OP and as such OP could not allege that complainant had concealed any material facts about his and his family health. He further contended that wife of the complainant fell ill on 20.1.2014 and the complainant took advise of doctor and then got admitted his wife in Patel Hospital on 10.2.2014 where she took treatment and was discharged on 13.2.2014. He further contended that wife of the complainant was taking treatment at home as advised by the doctor but could not recover and then she was admitted in DMC Hospital on 19.4.2014 and after taking treatment for 11 days, she was discharged from DMC Hospital. He further contended that wife of the complainant was taking regular medicines but her health deteriorated and then she was again admitted in DMC Hospital on 4.6.2014 but on the advise of doctor, she was referred to Hero Heart DMC Hospital on 6.6.2014 and was discharged on 15.6.2014. He further contended that wife of the complainant suffered only from fever but she was admitted in the hospital due to emergency and as such, complainant have not concealed any material facts regarding his and his family health in the proposal form. He further contended that complainant filed claim with the OP but the same was declined by the OP on the basis of some past history of disease given in the history record of the hospital which was not given by complainant and was mentioned due to inadvertence and same was later on rectified by the hospital and rectification certificate was filed with the OP insurance company but inspite of that, case of the complainant was not considered and was declined. He contended that the illegal repudiation of the claim of the complainant amounts to deficiency in service and illegal trade practice and this conduct of the OP have also caused harassment and mental agony to the complainant and as such complaint is required to be allowed and OP is required to be directed to pay the claim amount alongwith compensation and litigation expenses.

9. The learned counsel for the OP contended that policy was purchased on 23.12.2013 for one year but wife of the complainant fell ill on 20.1.2014 i.e. within 90 days of the inception of the policy. He further contended that as per clause 4-B of the insurance policy Ex.OP1, complainant is not entitled to the cost of treatment if the same is taken during first 90 days from the commencement of the policy, unless the treatment is needed due to accident or emergency but the case of the complainant is not that due to accident, Ritu Thukral was admitted in the hospital or it was result of any emergency. He further contended that the medical record placed on the file clearly shows that Ritu Thukral was suffering from pre-existing disease but this information was concealed in the proposal form and as per clause 4-A of the terms and conditions of the insurance policy, complainant is not entitled to reimbursement of the treatment in case of pre-existing disease until the expiry of 48 months of continuous coverage of the policy. He further contended that claim of the complainant was rightly repudiated by the OP as Ritu Thukral was admitted in the hospital within 90 days of the inception of the policy and she was also suffering from pre-existing diseases as per medical record placed on the file and as such the claim of the complainant was rightly repudiated by the OP insurance company and complaint is also liable to be dismissed.

10. After going through the record of the case, pleading of the parties, evidence and documents placed on the file by the parties, this Forum does not find force in the contention of the learned counsel for the complainant and is of the considered opinion that Ritu Thukral was suffering from pre-existing disease but this information was concealed in the proposal form. Admittedly, the insurance policy Ex.C2/Ex.OP1 in question was taken on 23.12.2013 for one year upto 22.12.2014. The information sheets attached with the proposal form shows that details about previous ailment or treatment have been simply marked as NIL as is clear from detailed policy Ex.OP1. Ritu Thukral fell ill and was admitted in Patel Hospital, Jalandhar. Thereafter, Patel Hospital sent a request letter to OP insurance company for cashless treatment to Ritu Thukral and the said request is proved on the file as Ex.OP2 dated 12.2.2014. In the said request letter, the diagnosis pointed out to be HCV, CLD etc. It means atleast on 10.2.2014 Mrs.Ritu Thukral was diagnosed as a case of HCV and CLD etc i.e. after about one and half month from the inception of the insurance policy. OP insurance company vide letter dated 13.2.2014 Ex.OP3 refused to issue a letter of authorization on the reason that the admission of the patient is within 90 days waiting period and cashless facility can not be provided due to information about the chronicity of the illness and possibility of pre-existing conditions can not be ruled out. HCV stand for 'Hepatitis-C Virus' and as per literature from Wikipedia proved on the file as Ex.OP10, Hepatitis-C is an infectious disease affecting primarily the liver and though infection is often asymptomatic but chronic infection can lead to scarring of the liver and ultimately to cirrhosis. Even OP insurance company proved a test report Ex.OP11 of patient Ritu Thukral dated 27.1.2014 and the report shows that early changes of cirrhosis in liver with Splenomegaly was found. It means liver disease was found as early as 27.1.2014 i.e. just after about one month from the inception of the insurance policy. Chronic liver disease as per Wikipedia, copy of which is proved on the file as Ex.OP12 shows that chronic liver disease is a disease process of the liver that involves a process of progressive destruction and regeneration of the liver parenchyma leading to fibrosis and cirrhosis. It further states that chronic liver disease refers to disease of the liver which had lasted over a period of six months. It shows that liver disease is generally designated as chronic if the disease lasted for more than six months. It means chronic liver disease was a pre-existing disease at the time of inception of the insurance policy but nothing is mentioned in the proposal form and it amounts to suppression of material facts and in this eventuality, claim of the complainant is bad under clause 4-A of the terms and conditions of the policy and as such the OP insurance company has rightly repudiated the claim of the complainant and complainant failed to prove any deficiency in service on the part of the OP. In case titled Subhash B.Jatania (Petitioner) Vs. National Insurance Co.Ltd (Respondent) 2015(1) CPR 807 (NC), complainant obtained a mediclaim policy and complainant was hospitalized from 6.11.2001 to 6.12.2001 and it was found that complainant was suffering from myasthenia gravis since month of February 2000 but the same was not disclosed by the complainant when proposal form was filled on 20.6.2001 and the insurance company came to the conclusion that complainant was suffering from pre-existing disease and committed mischief by not disclosing the same in the proposal form and repudiated the claim. The complaint was allowed by the District Forum but Hon'ble State Commission allowed the appeal. On revision, the Hon'ble National Commission observed that the order passed by Hon'ble State Commission can not be faulted and revision was dismissed. In case titled Satwant Kaur Sandhu Vs. New India Assurance Company Ltd, 2009(4) CPJ, 8, complainant took a mediclaim policy and later on filed a claim application under the insurance policy which was repudiated by the insurance company on the ground that at the time of taking policy, policyholder was suffering from Diabetic Nephropathy/Chronic Renal Failure, but did not disclose the fact of ailment while taking the policy which was within his knowledge and he was required to disclose the same under the terms of policy. Policyholder died after seven months of taking policy and wife claimed compensation which was repudiated by the insurance company and it was held that the policyholder suppressed material fact and as such insurance company was justified in repudiating the claim and there was no deficiency in service. The same proposition of law was held in case titled Diwan Surender Lal Vs. The Oriental Insurance Co.Ltd 2008(4) CPR 438 (NC).

11. In the light of above discussion, complainant failed to prove his case and also failed to prove any deficiency in service on the part of the opposite party and as such complaint is hereby dismissed. However, in the peculiar circumstances of the case, the parties are left to bear their own cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Ashwani Kumar Mehta

09.03.2016 Member Member President