Delhi

StateCommission

CC/1732/2017

SH. HANUMAN PRASAD MITTAL & ANR. - Complainant(s)

Versus

MAX BUPA HEALTH INSURANCE CO. LTD. - Opp.Party(s)

SIDDHARTH BAMBHA

29 Nov 2018

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 29.11.2018

Date of Decision : 09.01.2019

COMPLAINT NO.1732/2017

                                               

 

1. Shri Hanuman Prasad Mittal

        S/o. Late Shri R.L. Mittal                             …..Complainant No.1

 

2. Mrs. Suman Mittal (Deceased)

        W/o. Shri Hanuman Prasad Mittal

 

1. Shri Prakher Mittal                                               Complainant no.2 (i)
2. Shri Yuvraj Mittal                                                 Complainant no.2 (ii)

 

All are residents of Flat no.723,

Neelkanth Apartment,

Sector-13, Rohini,

New Delhi-110085.

 

VERSUS

 

Max Bupa Health Insurance Company Ltd.,

Registered Office at:

Max House, 1 Dr. Jha Marg, Okhla,

New Delhi-110020.                                                                                .....Opposite party

 

 

CORAM

 

Hon’ble Sh. O. P. Gupta, Member (Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?       

                                                                                                Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The complaint has been filed on the averments that in 2013 the complainants agreed to shift their existing medical insurance from United India Insurance Company to OP. The complainant took plan known as “Family first gold 5 lakhs + 15 lakhs”. It was represented that the said policy cove extended to the entire family of complainants. After filing up the proposal form, OP got conducted medical examination of both the complainants through their penal doctors. The policy was from 31.01.13 to 30.01.14. From 31.01.15 policy was splited in two parts one for complainant no.1 and complainant no.2 and other for their sons and family. The policy was renewed till 30.01.17  as per details mentioned in para-3 of the complaint.
2. On 20.07.16 complainant no.2 felt some hardness in her right breast and went for test of mammography left breast and ultrasound breasts at Dr. Jain’s Diagnostics Heart Clinic, Rohini, New Delhi, on reference by Dr. Raj Kohli, Gynaecologist (family Doctor). Copy of the report of the tests is Annexure-F. On the advice of Dr. Raj Kohli, complainant no.2 visited Dr. S. Veda Padma Priya, Consultant, Department of Surgical On 21.07.16 who advised her to undergo various tests like “PET MRI and tru cut biopsy and detailed investigations”. Complainant no.2 was admitted in the said hospital. After detailed investigation, she was diagnosed to be suffering from Carcinoma, given revisit schedule and was finally discharged on 22.07.16 with instructions. She had undergoing chemotherapy. The bills were rejected by the OP. The bills were for Rs.18,31,345.46 as per details mentioned in para 7 of the complaint. The ground of rejection of bills serial no.1 to 7 was that as per submitted documents and investigation done by OP, it found that patient was suffering from breast lump since 4-5 years, H/o. HTN since 1 ½ years, k/c/o thyroid 8 years, H/o. convulsion on 11.01.13, therefore it was a pre existing condition and non disclosure also. Hence claim was denied as per clause 4 of the policy.
3. Bills at serial no.8-15 were rejected /denied on he ground “policy already terminated in system hence denied”.
4. Bills at serial no.8-15 were for the period ending 02.12.16.
5. Bills at serial no.16-21 were rejected on grounds as mentioned for rejection of bills at serial no.1-7. Bills at serial no.22-24 were not entertained on the ground that policy does not exist.
6. The complainants were dismayed to receive a notice via email dated 06.09.16 from OP whereby OP sought to cancel the insurance policy after 30 days from the receipt thereof. The notice alleged that during process of the complainants claim it was noticed that there had been non disclosure of pre existing illnesses/ medical conditions at the time of applying for health insurance. Since there has been misrepresentation, mis-description and non-disclosure on the part of complainant, the policy shall be void and all premium paid shall be forfeited. The same was duly replied by complainant on 07.09.16 and mail dated 23.11.16 requesting for reconsideration of claims mentioning that she had been  examined on 04.11.15 for mammography  of both breast at Fortis Hospital, wherein everything was found  normal. If something had gone wrong with her health/ breast  it could at most be between the period from 04.11.15 to 21.07.16. Report dated 04.11.15 is Anenxure-O. The same was replied by OP vide email dated 29.11.16.
7. Discharge summary issued by Rajiv Gandhi Cancer Institute does not make any reference to the cancer being of any old origin. The latest certificate issued by Dr. Nitesh Rohtagi, Senior Consultant, Medical Oncology, Max Cancer Centre, Saket, New Delhi dated 23.12.16 stated that complainant was diagnosed with Carcinoma right breast as was diagnosed 5 months back with carcinoma breast at Rajiv Gandhi Cancer Institute and Research Centre on 21.07.16. This was a new diagnosis with no past history or predisposition to breast cancer. There is no connection of cancer either with hypertension or convulsion or thyroid. Copy of certificate dated 23.12.16 is Annexure-R.
8. On the advice of doctor, complainant no.2 was admitted in the Max Health Care for surgery of carcinoma right breast on 02.01.17 and surgery was successful and was discharged on 04.01.17. Thereafter the complainant sent email dated 13.07.17 to OP requesting for renewal of the policy on 13.07.17. OP denied to renew the policy as policy has been terminated due to non disclosure post insurance of policy. The medical records of complainant no.2 prove amply that her carcinoma was of recent origin, there was no misrepresentation, mis-description or non disclosure of  any sorts. The OP is guilty of deficiency of service.
9. The complainant earlier filed complaint no.1563/17 in which this Commission was of the view that complaint did not fall under pecuniary jurisdiction of this Commission. Thereby liberty was granted to the complainant to approach the Commission after making  suitable amendment vide order dated 12.09.17. Copy of order is Annexure-U. Hence this complaint for directing the OP to reimburse medical expenses of Rs.18,31,347.46 borne by complainants and further continue to reimburse medical expenditure incurred in terms of the policy.  They have claimed Rs.10 lakhs towards the mental agony and harassment suffered by them due to negligent and illegal acts of the OP to renew the policy.
10. OP filed WS raising preliminary objections that contact of insurance is utmost good faith, every material facts must be disclosed, otherwise there is a good ground of recession of the contract. Evidently, the complainant concealed material facts and had falsely stated the facts of complainants no.2’s health in the proposal form. Medical facts of complainants no.2’s  history hypertension convulsion/ seizure on 14.01.13, admission in Fortis Hospital from 15.01.13 to 16.01.13, history of thyroid disorder since 8 years, medication for same, history of thyroid disorder since 8 years, medication for the same, history of severe bursting pulsatile headache, hemicranial and consulting  a doctor for the same on 21.09.09 were not disclosed in the proposal form. Complainant no.2 suffered from episode of seizure disorder and was admitted in the Fortis Hospital from 15.01.13 to 16.01.13 where she underwent an MRI and was on conservative  treatment. On 24.01.13 (i.e. within 8 days), the complainants submitted a proposal form with the OP in which they did not make true and correct disclosure. The OP conducted a pre policy medical condition examination. If the complainant had made true and correct disclosure s in the proposal form as well as MER form, OP would not have issued the subject policy. Even if the OP had conducted medical examinations, it in no manner absolves the complainant to make correct and true disclosures in the proposal form and MER. Copy of pre policy medical condition examination form is Annexure-R/2.
11. The policy was already terminated on 18.10.16. Even if for the sake of argument the termination of the said policy is assumed to be incorrect, the policy expired by efflux of time on 18.02.17. Complainant did not approach the OP for renewal of policy during the policy of tenure or grace period of 30 days. Complainant for the first time on 13.07.17 i.e. after lapse of approximately 3 months 23 days, showed his willingness to renew his policy. In the previous complaint no.179/17  the complainant did not challenge termination of policy nor prayed for policy to be reinstated. Claims listed at serial no.22 to 24 which are beyond the period of policy have been added with sole motive to bring the complaint within jurisdiction of this Commission.
12. On merits the OP took almost same defence as in preliminary objections. Copy of investigation report, discharge summary from Fortis Hospital, copy of medical record from Jain Eye Hospital & Laser Centre, AG-152, Shalimar Bagh, Delhi-88 which indicates  hypothersium – 1 years and thyroid disorder – 8 years is Annexure-R/3. The OP placed on record statement dated 17.08.16 singed by complainant no.2 wherein she admitted that she had been suffering from hypothyroidism since 5-6 years  as Annexure-R/4. OP l wanted to bring on record  consultation notes of Apollo Hospital dated 21.09.09 which mentioned that patient was suffering from hypotherisum and  was on medication. The same records that complainant had been suffering from severe bursting pulsatlie headache, hermicranial. The same refers to MRI conducted in 2004. It corroborates that she was suffering from said ailment prior  to inception of policy.
13. At this stage I may highlight that Annexure-R/4 referred to by OP in a WS as statement made by complainant no.2 on 17.08.16 is at pages-91 to 96 of the bunch of WS. It does not contain that she was suffering from hypotherisum since 5-6 years.  
14. Complainants filed rejoinder controverting the case of the OP and reaffirmed their own case as set up in the complaint.
15.  Complainants filed affidavit of complainant no.1 in evidence. He reproduced the averments made in the complaint and exhibited the documents.
16. On the other hand the OP filed affidavit of Ms. Vartika Nathani, Asstt. Manager, Legal. The same is on the lines of WS.
17. Both the parties have filed written arguments. The OP filed written arguments twice  once on 11.05.18 and second time after hearing of oral arguments, on 10.12.18. The same is titled as written synopsis. Complainant also filed copies of certain judgements after hearing of the arguments.
18. I have gone through the material on record and heard the arguments. The counsel for OP vehemently submitted that complaint is liable to be dismissed for lack of pecuniary jurisdiction. She pointed out that she has already moved a separate application for that purpose which is pending. She drew my attention towards copy of order in previous complaint which is at page 800 of the bunch of complaint. That claim was for less then Rs.20 lakhs. Under the garb of liberty to amend the complaint, the complainant added prayer Clause-B, C and D in the present complaint. Complainant also added bills at item no.22 to 24 to enhance the value for the purpose of pecuniary jurisdiction.
19. I am unable to subscribe to the argument. Jurisdiction has to be determined on the basis of relief claimed in the complaint. What would be granted and what would not be granted, is a question to be decided on merits. But that can not be a determining factor for deciding pecuniary jurisdiction. The argument of counsel for OP is rejected.
20. On merits I feel that the sole question involved is as to what is pre existing disease, whether the complainant no.2 was suffering from cancer due to which she had to take treatment and claim the bills of treatment from OP. Later on she died due to the same disease, during pendency of the present case  and her LRs were brought on record.  If the answer is found in positive, complaint would  have to be dismissed. If not, the OP has no defence. The same would be relevant for deciding the plea of concealment also. If the complainant was not aware of said disease  i.e. cancer, at the time of taking the policy, she cannot be held guilty of concealment.
21. The counsel for the complainants submitted that OP got complainant no.2 medically examined before issuing the policy. The only purpose of said examination was to find out if complainant no.2 was suffering from any material disease so as to render her unfit for insurance. Once the doctor of OP did not find any such disease, now it does not lie in the mouth of OP to say that complainant was suffering from pre existing disease. The arguments seem to be logical.
22. The counsel for the complainants submitted that barely an year before discovery that complainant no.2 had kasinoma, she during general health check up had undergone a mammographyof both breast at Fortis Hospital, Shalimar Bagh, New Delhi. The goal of mammography was early detection of breast cancer through detection of characteristic masses and / or  micro classifications. In the medical report dated 04.11.15 of said general check up it has been noted that her condition is absolutely normal and  she had no illness/ ailment in her breast. Fortis  Hospital is Hospital of repute and said report demolishes the defence of the OP.
23. Counsel for the complainants continued to argue that discharge summary issued by Rajiv Gandhi Cancer Institute does not make any reference to cancer being of old origin. Again Rajiv Gandhi Cancer Institute is a leading institute for treatment of cancer. If it  did not find any old history of cave, the plea of OP that complainant was suffering from pre existing disease of cancer merits rejection.
24. Latest certificate issued by Dr. Nitesh Rohtagi, Senior Consultant, Medical Oncology Max Cancer Centre, Saket, given on 23.12.16 states that complainant no.2 was diagnosed with kasinoma right breast which was diagnosed 5 months back with kasinoma breast at Rajiv Gandhi Cancer Institute on 21.07.16. This is after last renewal of the policy from 31.01.16 to 30.01.17.
25. The above certificate dated 23.12.16 given by Max Cancer Institute opines that there is no connection of Cancer either with hypertension or kasinoma or thyroid. He supported clearance of claim of the complainant. Max Cancer Centre does not lack behind in the field of disease of cancer. It can be safely interfered from the said certificate that complaint was not knowing about the disease of cancer in Jan., 2016 at the time of last renewal of the policy.
26. According to counsel for the complainants, the Ops are trying to harp on the plea that complainants are guilty of concealment of seizer on 14.01.13, history of thyroid since 8 years on medication and her history of severe bursting pulsatlie headache, hermicrania. The same can not stand in view of the opinion given in certificate dated 23.12.16 Supra. Doctor being an expert, having special knowledge must be preferred over the suspiciion of OP.
27. All tests results in 2015 were negative and nothing was found. In that regard test report of mammography performed as Fortis Hospital have been placed on record.
28. In support of his submissions the counsel for complainants referred to decision by Rajasthan State Commission in Appeal No.1114/03 titled as oriental Insurance Company vs. Rajendra Swaroop Aggarwal decided on 07.03.06. In that case the order of the District Forum allowing the complaint was maintained. Detailed discussion was made about  nature and feature of Cancer, cause thereof. It was held that merely because complainant had a `challa’ in her mouth does not mean that she was suffering from cancer.
29. Rajasthan State Commission relying upon decision of Hon’ble Supreme Court in Modern Insulators Ltd. vs. Oriental Insurance Company,I(2000) CPJ 1 held that it is the duty of the Insurance Company to disclose all material facts since obligations of good faith  applies to both equally. It also relied upon decision of National Commission in National Insurance Company Ltd. vs. Bipul Kunda, II (2005) CPJ 12 in which it was held that for repudiating claim for an insured, it is for the insurer to show that a statement of fact, which was material for the policy, had been suppressed by the insured.
30. Viewed from that angle, the OP in the present case has failed to prove its plea that complainant had suppressed material facts  which she was aware at the time of renewal of policy.
31. Counsel for the complainant also relied upon decision of Punjab State Commission in FA No.317/14 titled as Max Bupa Health Insurance Ltd. vs. Anjana Goel decided on 19.01.15 in which it was held that the OP had not placed on record affidavit of the doctor who prepared the prescription slip nor had produce any evidence for proving that before obtaining the policy, the complainant was suffering from Ischemic Stroke. Similarly in this case the OP has not filed affidavit of any doctor  to show that complainant was  suffering from cancer.
32. In the above case Punjab State Commission relied upon decision of National Commission in Tarlok Chand Khanna vs. United India Insurance 2012(2) CLT 617 (NC) followed in M/s. ICICI Prudential Life Insurance Company vs. Veena Sharma (2014) 4 CLT 507. In those cases it was held that mere production of discharge card was not enough and OP was required to prove by credible evidence that complainant was suffering from pre existing disease and had intentionally failed to disclose the same.
33. The aforesaid order of Punjab State Commission was challenged by way of revision before National Commission. The National Commission agreed with Punjab State Commission. Reference was made to decision of Hon’ble Supreme Court in Civil Appeal no.7969 of 2010 decided on 10.09.10. In that case the claim had been repudiated on the ground that insured had given incorrect answer to the quarries in the proposal form.
34. Out of the further judgements filed by complainant, decision in Modern Insulators had already been discussed above. Judgement in Biman Krishna Boss (2001) 6 STC 477 deals with refusal to renew the policy. That is not relevant. The decision in National Insurance Company vs. Bipul Kundu  II (2005) CPJ 12 NC has already been discussed above. New India Insurance Company ltd. vs.  Akshoy Kumar (2007) 99 DRJ 547 deals with renewal of insurance policy.  To the same effect is a decision of Delhi High Court in Mukund Lal Duggal (2005) 82 DRJ 70. Both are not relevant. Decision in Anjana Goel by Punjab State commission had already been discussed above.
35. In Oriental Insurance Company vs. Brajender Swaroop Agarwal It was held that merely because disease of  cancer was diagnosed within 30 days from issuance of policy and since cancer was of third degree, it can not be said that the insured was a patient of cancer prior to the issuance of the policy. In Bipul Kunda Supra it was held that it is for the insurance to show that a statement of a fact, which was material for the policy, has been supressed by the insured and that statement was fraudulently made by him/ her with the knowledge of falsity of that statement.
36. Per contra the counsel for OP submitted that it is not for the proposer to determine whether the information sought for is material for the purpose of policy or not. In support of her arguments, she relied upon decision in Satwant Kaur Sandhu vs. New India Insurance Company (2009) 8 SCC 316. She also relied upon decision of National Commission in R.P. 3947/2013 titled as Ms. Shnyni Valsan Pombally vs. State Bank of India in which it was held that insured is obliged to tell all facts which ought to have been known by him, had he made reasonable inquires. She also referred to decision of Hon’ble Supreme Court in P.C. Chacko vs. Chairman Life Insurance Corporation Civil Appeal No.5322/07 and LIC vs. Asha Goel (2001) SCC 160. All the decisions relied upon by the counsel for OP are based on their own facts. None of them is relevant for the present case.
37. In written synopsis filed by the counsel for OP on 10.12.18 she referred to decision of the National Commission in LIC vs. Rama Maney Patra R.P. No.1061/11 decided on 03.08.15 to make out that it is not necessary that there must be nexus between accidental death and disease suppressed by insured. The decision of National Commission in LIC vs. Kusum Patre R.P. No.1585/11 decided on 19.03.12 is in different context. There the report of doctor of insured company conducted medical examination showed that the doctor was completely and grossly incompetent.
38. Maya Devi vs. LIC III(2011) CPJ 43 NC referred to show that one can not claim benefit of insurance if material facts are concealed, had not been supplied for perusal by this Commission. Decision of NC in R.P. No.2749/06 titled as Lal Chand vs. LIC decided on 13.12.11  also speaks of failure to disclose material fact.
39. Dewan Surinder vs. Oriental Insurance Company I (2009) CPJ NC lays down that breach of duty by assured to disclose all facts material can be availed by insurer only when it can show that non disclosure induced making of the contact. Decision in R.P. No.1272/14 titled as Bajaj Allianze General Insurance Company Ltd. vs. Vithal Bhai Shiv Bhai Patel decided on 05.11.15 lays down that obligation to disclose necessarily depend upon knowledge one possess. Copy of decision of this Commission in FA No.490/2010 titled as Brij Mohan Gupta vs. LIC. Copy there of had also not been made available for perusal by this Commission.
40. Reliance on General Assurance Society Ltd. vs. Chandu Mal Jain (1966) 3 SCR 500, Oriental Insurance Company Ltd vs. Soni Cheriyan AIR (1999) SC 3253 are altogether in different context.
41. The counsel for complainant rightly refuted reliance by OP on a certificate from Jain Eye Hospital & Laser Centre. The same is not legible, an eye doctor has nothing to do with disease of cancer. The said certificate ha not been proved satisfactorily by the OP. Thus the same can not be relied upon.
42. For the foregoing reasons I am of the opinion that complainant was not suffering from disease of cancer and atleast she was not aware about the same at the time of taking the policy. However I feel that she is entitled to reimbursement of bills mentioned at serial no.1 to 7 mentioned in heading A and 8 to 21 mentioned in heading B. Bills at serial no.22 to 24 which dated 28.02.17, 02.09.17 and 16.09.17 are subsequent to the lapse of policy. After deducting the amount of those bills the balance is of Rs.4,52,448/-. When the amount of Rs.3,35,163/- under heading A is added to it, it comes Rs.7,87,611/-.
43. The complainant is also entitled to compensation of Rs.2 lakhs for mental agony and harassment and Rs.1 lakh as litigation. The complainant no.1 has lost his wife and LRs of  complainant no.2 have lost their mother.
44. In all the OP is directed to pay Rs.10,87,611 to complainant within 45 days on the receipt of copy here of. In case of failure to do so, the OP will be liable to pay interest @10% per annum from date of claim till the date of payment.
45.   Copy of the order be sent both the parties free of cost.

           File be consigned to record room.

 

 

                                                                                           (O.P. GUPTA)                                                                                                                                                                                       MEMBER (JUDICIAL)