FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the complainant, in brief, is that the Complainant No. 2 purchased a health insurance policy from the OPs on 10/05/2011 and till then upto the year 2019 continued the policy. At the time of inception of the said policy the Complainant no.2 had no pre-existing disease. On 10/05/2018 the complainants had paid a premium of rs.1,12,505/- to the OPs being Policy renewed no. 30035281201807 for the period of 10/05/2018 to 09/05/2019 and having the base insured sum of Rs.26,00,000/- . In the end of 2012, the Complainant no.2 started suffering from liver disease and on 04/05/2018 had to be admitted at Belle Vue Clinic, due to severe pain in his abdomen along with fever and other symptoms and was discharged on 13/05/2018. The Complainant no.1 duly submitted the claim form vide claim no.336621 for reimbursement of a sum of Rs.4,48,009/- to the OPs on 29/05/2018 as the medical expenses incurred along with the complete details and supporting documents. But the OP rejected the claim of the complainant vid an e-mail dated 25/07/2018 mentioning the reason that patient is known case of chronic liver disease since 2008, not disclosed at policy inception. The Complainant no. 1 replied the said mail on 26/07/2018 informing the OPs that the insured did not have any chronic liver disease at the time of inception of the policy in the year 2011. Thereafter, several e-mails were exchanged by and between the parties. But the OPs stick to their opinion without sharing any evidence of the basis of rejection. Further in support of the complainant’s claim a certificate dated 29/10/2018 issued by treating doctor, Dr. Debkripa Banerjee , certifying that Chronic Levar Disease of the complainant no.2 started developing towards the end of calendar year 2012 and not in the year 2008 as alleged , was sent to the OPs vide e-mail. On reply the OP repeated the same language as stated in their letter dated 25/07/2018 vide e-mail dated 10/11/2018without sharing any evidence. The complainant had further sent a certificate dated 07/01/2019 issued by Dr. AnirbanNeogi under whom the patient was treated at Belle Vue Clinic, certifying that Complainant no.2 has developed Chronic Liver Disease since the year 2012 ad also certified that by mistake it was mentioned that Chronic Liver disease is since 2008 in day to day doctor’s note when he was admitted in Belle Vue Clinic on 06/05/2018. Replying the main the OP requested for some additional documents with regard to old/post treatment record related to aliment vide e-mail dated 28/01/2019. The complainant sent photocopies of all tests and/or investigations, and/ or doctor’s prescriptions from 2008 to 2018 vide Consignment No.383577517 on 13/09/2019. But the OP did not reimbursed the complainant’s claim till date. Therefore, the complainant lodged this complaint before this Commission.
OP contested the case by filing WV contending inter alia that the instant complaint is baseless, fabricated, misconceived, motivated, false, and is not maintainable.The case of the OP is that, the law of insurance is governed by the legal doctrine “Uberrima fides” which means all parties to an insurance contract must deal in good faith, making a full declaration of all material facts in the insurance proposal. In the instant case there are inherent misrepresentation and suppression of material facts. The Medically assured suppressed material facts regarding his pre-existing disease in the proposal stage to procure the Insurance Cover, thus have committed fraud upon the OP and mislead the OP to issue the Insurance Policy in their favour. Based on the statement in proposal form, the OPs have provided him with insurance cover. On the contrary, had the medically insured disclosed the pre-existing disease, then, the OPs would not have granted the insurance cover or would have called for a higher premium or issued a different policy. The policy holder has a history of Chronic Liver Disease since the year 2008 which is prior to application of policy and was under regular treatment for the same. On perusal of claim documents accompanied by hospital records submitted by the complainant and during investigation conducted by the OPs the pre-existing health condition of the complainant was revealed Further the act of the OPs in repudiation of the claim on the ground of non-disclosure of material fact is squarely within the ambit of legal provisions and the OPs vide letter dated 15/10/2019 cancelled the policy. In the meantime the complainant had approached the office of the Insurance Ombudsman at Kolkata for redressal of his grievance, however, the Insurance Ombudsman vide order dated 18/09/2020 dismissed the complaint of the complainant on the basis of non-disclosure of previous ailments. Therefore, the complaint petition deserves to be dismissed.
We have gone evidencethoroughly adduced by the complainant including documents on record. Although mentioned, no documents is annexed with the WV filed by the OP. We have gone through all material documents and gave careful consideration to the arguments advanced by the Ld. Lawyers for the parties.
On perusal of the record it is found that OPs intimated that MAX BUPA HEALTH INSURANCE COMPANYLTD is presently known as NIVA BUPA HEALTH INSURANCE COMPANY LTD. But no amendment prayer or amended petition is filed by the parties in this regard.
Admittedly the complainants are insured with the OPs since 10/05/2011 and have paid a sum of Rs.1,12,505/-as premium in favour of the OPs for continuation of the policy from 10/05/2018 to 09/05/2019. Fact also remains that complainant no.2 had to be admitted at Belle Vue Clinic on 04/05/2018 and discharged on 13/05/2018 and the claim form for reimbursement of a sum of Rs.4,48,009/- as the medical expenses incurred along with the complete details and supporting documents is submitted by the complainant no.1 to the OPs. Evidently the OPs rejected the claim vide e-mail dated 25/07/2018 on the ground that:
as per documents available and verification conducted it is observed that patient is known case of chronic liver disease since 2008 not disclosed at policy inception as there is non disclosure / misrepresentation of material facts hence claim is rejected as per policy terms and conditions.
Ld. Advocate for the complainant alleged that the complainant no.1 had no chronic liver disease at the time of policy inception in the year 2011 and the said disease started developing from 2012. Photocopy of the e-mail dated 26/07/2018 goes to show that the complainant no.1 informed the same to the OPs and requested for providing the details of rejection. In support of this contention the complainants adduced a certificate dated 29/10/2018 issued by the treating Doctor of the complainant no.2 Dr. Debkripa Banerjee stating that Complainant no.2 has started Chronic Liver Disease (CLD) towards the end of the calendar year 2012. Again on 08/01/2019 the complainant no.1 sent an e-mail to the OPs enclosing another certificate dated 07/01/2019 issued by Dr. AnirbanNeogi under whom treatment of the complainant no.2 was carried out at Belle Vue Clinic stating that the complainant no.2 has developed CLDsince 2012. It is also stated by the Dr. AnirbanNeogi that By mistake it was mentioned that chronic liver disease is since 2008 in the day to day doctor’s note at the time of ad mission.
Ld. Advocate for the OPs argued that the law of insurance is governed by the legal doctrine “Uberrima fides” which means that all parties to an insurance contract must deal in good faith, making a full declaration of all material facts in the insurance proposal and in the instant case there are inherent misrepresentation and suppression of material facts as the Medically assured suppressed material facts that he has a history of Chronic Liver Diseasesince the year 2008 and has been under medication for the same which is prior to application of policy, thus committed fraud upon the OPs and mislead the OPs to issue the Insurance Policy.In this regarda photograph is printed by the OPsin the WV as “A true and correct copy of previous medical treatment papers of the complainant / policy holder depicting his previous history are annexed hereto and marked as Annexure-R-3(Colly).” Said photograph dated 23/07/2018 goes to show that:“He is a known case of chronic liver disease since 2008.” There is no signature of the Doctor in the said photograph and no such material document is annexed with the WV. Photocopies of several e-mails issued by the OPs to the complainant reveal that OPs are stubborn in their decision:
“We would like to inform you that we have got your Claim number-336621 reviewed by our medical advisory team at length and as per the available facts and medical records, it has been observed that the patient is a known case of chronic liver disease since 2008 which falls prior to policy inception with Max Bupa. This has been noted from the documents received from the hospitals and as per details shared by you. We have noticed that that mentioned condition was not disclosed to us at the time of taking the policy.”
In this regard complainants annexed two certificates of Dr. Debkripa Banerjee and Dr. AnirbanNeogi, both are attached with the BelleVue Clinic wherein the complainant no.2 was admitted from 04/05/2018 to 13/05/2018 and treated under them. Photocopy of a certificatedated 29/10/2018 issued byDr. Debkripa Banerjee showing that: “MR Agarwal started developing Chronic Liver Disease (CLD) sometime towards the end of the calendar year 2012.”Dr. AnirbanNeogi certified on 07/01/2019 that: “MR RAJENDRA PRASAD AGARWAL (male/65 years ) resident of 10 A, BURDWAN ROAD, KOLKATA – 700027 has developed chronic liver disease since 2012. By mistake it was mentioned that chronic liver disease is since 2008 in the day to day doctor’s notewhen he was admitted at the Belle VueClinc on 6/5/18.”
In view of the above facts we cannot overlook the opinion of the two experienced Medical Practitioner. Moreover, It is mentioned in the Discharge Summary of the complainant no.2 issued by the Belle Vue Clinic that ‘Nothing significant’ in Past Medical History.The complainant submitted thatall photocopies of tests/investigations/doctors’ prescriptions from 2008 to 2018 have been sent to the OPs as per their requirements via courier on 13/02/2019. It is observed that OPs neither rely upon any expert opinion nor furnished any evidence of the basis of rejection the said claim.
Under such circumstances we are opined that OPs have miserably failed to perform their responsibilities. It is not our expectation that the complainants by any means suffer from loss of money and time for the utter negligence on the part of the OPs. Under the above circumstances, unfair trade practice and the gross negligence and deficiency in service on the part of the OPs is proved and the complainant is entitled to get relief/ reliefs.
Based on the above discussion we disposed of the consumer case against the OPs on contest in the following terms:
- OPs are jointly and severally directed to pay an amount of Rs.4,48,009/- to the complainant with simple interest@ 8%p.a. from the respective dates of payment is made, together with litigation cost of Rs.10,000/-.
- This amount to be paid by the OPs to the Complainant within 45 days from the date of this order, failing which, the amount shall attract interest @12% p.a. for the same period.
The instant Consumer Complaint is thus allowed on contest against the OPs.
Copy of the judgement be supplied to the parties as per rules. Judgement be uploaded on the website of this Commission forthwith for perusal of the parties.
