DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.169/2016
Sh. Sachin Solanki
Flat No.- 612,
Chandanwari Appartment
Plot No.- 8, Sector- 10,
Dwarka, New Delhi- 110075
….Complainant
Versus
The Max Bupa Health Insurance
Co. Ltd., (2015), (MSSH)
B-1/1-2, Mohan Cooperative Industrial Estate,
Mathura Road, New Delhi- 110044
Max Super Speciality Hospital (East Block)
(A unit of Devki Devi Foundation)
Regd. Office: 2, Press Enclave Road,
Saket, New Delhi- 110017
….Opposite Parties
Date of Institution : 07.06.2016
Date of Order : 17.10.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K. Tyagi
1. Complainant has requested to pass an award directing M/s Max Bupa Health Insurance Co. Ltd. and Max Super Speciality Hospital (hereinafter referred to as OP-1 & 2 respectively) (i) to reimburse the amount of Rs.86,348/- for the bills paid by the complainant alongwith interest @18% per annum (ii) to revive the insurance policy (iii) to pay Rs.50,000/- towards physical harassment etc. (iv) to pay Rs.50,000/- towards mental torture (v) to pay Rs.22,000/- towards litigation charges etc.
Brief facts of the complaint are as under:-
2. The complainant had taken a Health Insurance Policy initially on 23.02.2013 for self, wife, daughter and son from OP-1. The
said policy also provides cashless facility for treatment of insured persons. He also paid premium of Rs.19,522/-. The said policy No.30185612201501 was extended for the period 23.02.2015 to 22.02.2017 for insured amount of Rs.3 Lac and due premium was also paid. No claim was availed from 23.02.2015 to 18.09.2015. On 18.09.2015, the minor daughter of the complainant fell sick with the stiff posturing of limb during the interval of 4 hours. She was rushed to hospital of OP-2. The patient was discharged on 20.09.2015. During the hospitalisation of his daughter, cashless facility was not extended by OP-1. A total bill of Rs.58,612.28/- was paid by the complainant. The bill and discharge summary are annexed as Annexure – 3 & 4 (colly). On 22.09.2015, the complainant submitted the bills to OP-1. The OP-1 did not disburse the bill amount. Here the OP-2 did commit a mistake, inadvertently, he wrote 4 years instead of 4 hours. The OP-1, on this ground of not disclosing the said ailment, declined the authorisation of cashless etc. On discussion with OP-1, they demanded an affidavit of treating doctor stating the same mistake. Further letter was also required from OP-2 confirming that their records have also been rectified. The treating doctor refused to give affidavit, however, gave the certificate stating that the mistake took place inadvertently and was counter-signed by Medical Supdt. of the Hospital to this effect. The OP-1 did not accept the said certificate. Denial of authorisation is enclosed as Annexure-P-7. The daughter of the complainant fell sick again with same problem of seizures and remained in hospital from 08.10.2015 to 10.10.2015, an amount of Rs.2,77,361/- was incurred. The claim form alongwith all requisite documents were deposited with OP-1. The OP-1 applied the Permanent Exclusion of Epilepsy. As such, on the reason of non-disclosure of existing disease, the policy was declared void and forfeited the premium amount.
3. The complainant took up the matter again with OP-1 and thereafter made grievance before IRDA. The OP-1 reiterated the earlier stand. As intimated about the Permanent Exclusion and termination of the policy, it is also asserted that the daughter of the complainant had suffered this problem first time on 18.09.2015; hence, no concealment was made. Legal Notice was also got served upon but of no avail. As such, the OP-1& 2 are squarely short of obligation, hence, deficiency in service and negligence.
4. OP-1 did not file its reply in time. Hence he was proceeded ex-parte by this Commission. The OP-1 challenged this order before State Commission. The State Commission allowed to file reply with the cost of Rs.2,000/- vide its order dated 08.12.2017. As such, the OP was able to file its reply. Also raised some preliminary objections stating that the complainant is not entitled any relief in equity as he had not approached this Commission with clean hands. The medical records clearly established that the patient was suffering from this disease for the last 4 years. The claim is required to be dismissed in view of the settled preposition of law – that the contracts of Insurance are contracts of: Uberrima Fides”. The said law has been held in catena of judgments by Hon’ble Supreme Court. The Hon’ble Supreme Court in Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd. (2009) 8SCC316held that “material fact which goes to the root of contracts, need to be disclosed. An insured is under solemn obligation to make true and full disclosure so the National Commission in the case Mrs. Shriyni Valsan Pombally Vs. SBI R.P.N. 3947of 2013 held the similar view.
5. The policy holder signed the proposal form after having gone through the terms and conditions of the Policy. A copy of discharge summary is enclosed as Annexure R/2. Policy kit is also provided to give another chance to have understood the features and T&C of the policy. The terms & conditions under Clause 4A mention clearly about Exclusions asserting that “that we shall not be liable under this policy for any claim in connection with or in respective of totalling and benefits shall not be available for pre-existing diseases.
6. In view of above, the claim is rightly repudiated as contended by OP-1. The OP-1 referred a catena of judgments related to similar facts of cases. The OP also vehemently denied the contentions of the complainant unless admitted specifically so his reply goes on merit.
7. OP-2 vide its reply inter-alia preliminary objections maintaining that no averment of with regard to deficiency of service has been alleged in the complaint against them. It is well established law that deficiency in service cannot be alleged without attributing fault, imperfection, inadequacy etc. All the allegations in the complaint are of OP-1 i.e. Insurance Company. Op-2 is hospital, no allegations are found against them. OP-2 has been impleaded wrongly. OP-2 further stated that the Rakshita Solanki, daughter of complainant aged 16 years, presented with complaint of sudden onset of confused state, stiff posturing of limb etc. 4 hours back. There is no history of fever or trauma. However, it was written 4 years back inadvertently. The complainant being insured applied to TPA for cashless facility. To which, TPA required the initial assessment sheet and relevant investigation report etc. The treating doctor also issued certificate to this effect that there was no past history and same certificate was counter-signed by the MS of the Hospital. The OP-2 also evidenced through affidavit to this effect asserting that the patient was admitted with stiff posturing of limbs with uprolling of eye-balls 4 hours back. There is no history of fever or trauma.
8. The complainant and both the OPs filed written submissions and evidence in-affidavit. Written Arguments of both OPs are on record so is rejoinder. Oral arguments were heard and concluded.
9. This Commission has gone into entire gamut of issues. Due consideration was given to arguments. It is noticed that the claim of the complaint was repudiated on this sole ground that after examining the history sheet and initial assessment sheet, the daughter of the complainant was found suffering from Epilepsy for the last 4 years. It is material information which was kept back by the complainant from the OP-1. The information which is material and same goes to the root of the contract. The contract of the Insurance Policy is based on the principle of uberrima fides. Hence concealment of such information amounts to vitiating the policy in the very beginning.
10. This Commission also examined the material placed by complainant and OP-2. The affidavits for the evidence were also examined minutely. Both Ops have contended that the patient was presented with the symptoms as mentioned above 4 hours back. The OP-2, i.e. Hospital has also said so on affidavit. The treating doctors had also given certificate to this effect which is duly counter-signed by MS of the Hospital. In such circumstances there is hardly any scope for interpretation beyond the fact of 4 hours. It has been specifically mentioned that 4 years had been written inadvertently.
11. Considering all facts on record and catena of judgment of superior courts about the principle of uberrima fides, this Commission is of considered opinion that inadvertence of some doctors/officials should not be made sole ground of repudiation when all the record and evidences in affidavit support the contention of the complainant. Moreover, the OP-2 had categorically accepted this fact that there was inadvertence in preparation of assessment sheet and wrote 4 years instead of 4 hours back as was the fact also. Hence, OP-1 is directed to process the claim within 3 months from the receipt of this order failing which interest @6% per annum shall be levied till its realisation. No interest on the claim amount is being allowed.
File be consigned to the record room and order be uploaded on the website.
