Date of filing: 26/08/2020
Judgment date: 11/04/2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant Sri Aloke Tulsyan under section 35 of the Consumer Protection Act, 2019 against the opposite parties (referred as OPs hereinafter) namely (1) Max Bupa Health Insurance Company Ltd. having its office in New Delhi (2) Mr. Navin Sahini (3) Max Bupa Health Insurance Company Ltd. having its office in Kolkata (4) Office of Insurance Ombudman (5) Insurance Regulatory Development Authority and (6) Asian Heart Institute and Research Centre, alleging unfair trade practice mainly on the part of the OP No. 1 to 3.
Case of the complainant in short is that complainant was an existing policy holder of Max Bupa Health Insurance of OP No. 1 since the year 2013. Said policy being no 30188047201906 was further renewed from 13.03.2020 to 12.03.2021. Complainant had suffered from some heart problem and on consultation with Dr. Anjan Siotia at B.M. Birla Heart Research Centre at Kolkata, as per his advice for heart surgery, complainant underwent off Pump Coronary Artery Bypass graft surgery on 20.05.2019 by Dr. Ramakanta Panda at Asian Heart Institute & Research Centre Pvt. Ltd. in Mumbai i.e. OP No. 6. Complainant was admitted from 19.05.2019 to till 27.05.2019. Thereafter complainant submitted the claim form with all the medical documents to OP 3 claiming Rs. 11,33,102/- but OP 1 & 3 rejected the claim on the ground of non-disclosure of diabetes mellitus since 12 years. So the claim was repudiated on the said ground of non-disclosure of pre-existing disease. At the time of obtaining Insurance Policy, complainant was 58 years old and as per the instruction of the OP No. 5, as it is mandatory in case of a person more than 45 years of age, to get him thoroughly examined, OP No. 1 & 3 had put thorough medical examination of the complainant and thus OP 1 & 3 cannot reject the claim of the complainant on the ground of non-disclosure of pre-existing disease. So the present complaint is filed praying for directing OP 1, 2 & 3 to pay the claim amount of Rs. 11,33,102/- along with prevailing Bank interest, to pay compensation of Rs. 50,000/- and to pay litigation cost of Rs. 30,000/-.
OP 1 to 3 have contested the case by filing written version contending inter-alia that the policy of Insurance is a contract between the insured and the insurer and the terms and conditions of the policy of insurance are binding upon the parties. Non observance of the terms and conditions vitiates the policy and absolve the insurance company of its liability to indemnify the loss of the complainant. It is specifically contended by OP 1 to 3 that the complainant deliberately did not disclose that he / patient was a known case of diabetes mellitus since 12 years and thus the claim of the complainant was repudiated for such non-disclosure of material fact. So OP 1 to 3 have prayed for dismissal of the complaint case.
Proforma OP No. 6 also sent the written version by post stating that complainant was admitted in the said hospital from 19.05.2019 to 27.05.2019 for Ischemic Heart disease (Blocked arteries of the heart) and he was treated by coronary Bypass surgery and recovered well from surgery. At the time of discharge patient was given ‘final bill’ and the payment of the same was received in full and final settlement. OP 6 is unnecessarily made a party and thus the case is bad for mis-joinder of parties.
OP No. 4 also by filing its version has specifically stated that OP 4 has been unnecessary made a party and it holds a quasi-judicial office and thus to delete its name.
OP 5 did not turn up on receipt of notice.
During the course of trial, OP 1 to 3 have mainly contested the case as the reliefs has been prayed for only against them. Complainant filed examination in chief on affidavit followed by filing of questionnaires by OP 1 to 3 and thereafter reply by the complainant. But in spite of repeated opportunities given, OP 1 to 3 failed to file examination in chief and thus the case was fixed for argument.
Both the parties filed their respective brief notes of arguments and have also advanced arguments.
Thus following points require determination:-
- Whether there has been unfair trade practice on the part of OP 1 to 3?
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion in order to avoid repetition.
At the very outset it may be pointed out that it is an admitted fact that complainant was the policy holder of Bupa Max Health Insurance Policy since 2013 and it was renewed time to time and was further renewed for the period from 13.03.2020 to 12.03.2021. There is also no denial that the complainant was admitted from 19.05.2019 to 27.05.2019 at Asian Heart Institute and Research Centre (proforma OP 6 herein) and had paid final medical bill of Rs. 11,33,102/- towards surgery / treatment.
Only dispute raised by the OP 1 to 3 is that complainant had suppressed the material fact of his pre-existing ailment of ‘diabetes Mellitus – 11” and thus the claim was repudiated as per terms of the policy. So the moot question to be considered in this case is whether the complainant had suppressed his such alleged pre-existing ailment. The best document to establish such fact is the proposal form submitted by the complainant during the inception of the policy. But the said proposal form has not been filed by the OP 1 to 3 for the reason best known to them. The proposal form would have disclosed whether there was any such query which could have led the complainant to disclose about his such alleged ailment. In order to seek specific information from the insured, the proposal from must have specific questions so as to obtain clarity as to the underlying risks in the policy. However Insurance certificate has been filed by the OP issued by its Chief Executive Officer wherefrom it appears that against heading / caption
“Pre-existing condition:
Mr. Aloke Tulsyan
NA
Mrs. Sarita Tulsyan
NA” is mentioned.
So as per the said specific clause regarding pre-existing conditions, it was either not available or not applicable as ‘NA’ is stated therein. In spite of the same, OP had issued the policy indicating that the OP 1 & 3 did not think that the health and medical condition of the complainant was such which did not warrant issuance of Health Insurance Policy. If that be so than at a later stage, OP could not say that there was a suppression or non-disclosure of material fact. Moreover said answer also implies that the complainant did not suffer from any such disease or he had no knowledge about him suffering from such disease including diabetes mellitus – II.
Hon’ble Supreme Court in case of Manmohan Nanda Vs United India Assurance Co. Ltd. & ANR, held that “Just as the insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of the policy that is going to be issued to him and must strictly conform to the statements in the proposal form or prospectus or those made through his agents. Thus the principle of utmost good faith imposes meaningful reciprocal duties owed by the insured to the insurer and vice versa”.
It is the specific claim of the complainant that at the time of taking of the Insurance Policy as he was aged 58 years, as per mandatory instructions of IRDA, he was made to go thorough medical examination and thereafter policy was issued by them in favour of complainant. Said specific claim of the complainant has not been denied by the OP 1 to 3. If that be so than again it indicates and implies that complainant did not suffer from any such illness of diabetes Mellitus – II at the time of making his proposal and OPs 1 to 3 being appraised about the medical condition of the complainant, issued the policy.
Apart from this, OPs 1 to 3 have not cited any authority to establish that every person having diabetes Mellitus – II would necessarily suffer from a cardiac disease or that the said alleged diabetes Mellitus – II was the sole reason of complainant suffering from heart ailment and undergoing surgery for the same.
In case of Manmohan Nanda Vs United India Assurance Co. Ltd., Hon’ble Apex Court also held that “we find considerable force in the argument on behalf of the appellant. This is because while diabetes Mellitus – II is a risk factor for a cardiac ailment in a person, it is not a hard and fast rule that every person having diabetes Mellitus – II would necessarily suffer from a cardiac disease. Conversely, a person who does not suffer from diabetes mellitus – II can also suffer from a cardiac ailment”.
The case of Satwant Kaur Sandhu Versus New India Assurance Co. Ltd. cited by OP in the written notes of argument, has also been referred and discussed by the Hon’ble Apex Court in the abovementioned case of Manmohan Nanda (Supra).
It will not be out of place to mention here that the OP 1 & 3 have admittedly received regular premium since 2013 but realised about such non-disclosure of alleged pre-existing ailment of Diabetes – Mellitus – II only when they were to indemnify the complainant regarding the expenses incurred by him towards his medical treatment. The very object of seeking a health insurance policy would be frustrated if indemnification in respect of a sudden illness which is not expected or imminent is not done by the insurance company on the ground for which they never bothered to seek any specific information.
So in view of the discussions as highlighted above and the legal proposition in case of Manmohan Nanda (Supra) we find that the complainant is entitled to the claim amount of Rs. 11,33,102/- along with interest on the said sum at the rate of 7% p.a. from the date of filing of this complaint.
Hence,
ORDERED
CC/169/2020 is allowed on contest against OP No. 1 to 3 and dismissed against OP 4 to 6. OP 1 to 3 are directed to pay Rs. 11,33,102/- to the complainant along with interest @ 7% p.a. on the said sum from the date of filing of the complaint i.e. 26.08.2020 within 45 days from this date. OP 1 to 3 are further directed to pay litigation cost of Rs. 10,000/- to the complainant within the aforesaid period of two months. In default of payment entire sum shall carry interest @ 7% p.a. till its realisation.
