BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 21^st DAY OF MARCH 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to pay her a sum of Rs.3,90,000/- spent by her towards treatment together with cost.

2. The brief averments made in the complaint are as under:

The complainant had taken insurance policy from OP on 07^th October 2013 and paid a full premium amount of Rs.15,000/- through cheque dated 09^th October 2013.  The complainant had also submitted a proposal with correct details on 07^th October 2013 to Sri.Phani Kumar Ivaturi agent of Max Bupa.  However, there had been a delay from the OP to conduct the medical checkup and it delayed the starting date of the policy.  The policy came to be issued on 23^rd October 2013, 16 days after the complainant had paid the premium amount.  During routine gynecology examination on 17^th October 2013 a lump was detected in her left breast and she was advised to go for a mammogram based on which she was advised to go for Fine needle aspiration cystography for further investigation.  The said procedure was done at Air Force Command Hospital, Bangalore on 22^nd October 2013.  The results on 23^rd October 2013 confirmed that as the said complainant has malignant lump in her left breast and was advised immediate surgery.  This is the first time the complainant came to know that she has cancer.

Since there is a tie-up period of 3 months for her insurance policy and since her husband is a serving Indian Air Force personnel, which enables for free medical treatment.  The complainant underwent surgery at the Command Hospital, Bangalore.  Subsequent to the surgery, the complainant was to undergo chemotherapy for a total 16 times.  The complainant started chemotherapy at Columbia Asia Hospital, Yesvantpur due to the proximity and also since her husband was not available (away on posting) at Bangalore to accompany her to Command Hospital which is far from her resident.  The complainant started treatment at her own cost at Columbia Asia Hospital presuming that it will be covered by the insurance company once the lock in period is over.  Halfway through the treatment, the three months lock in period got over and she submitted her claim for reimbursement to OP.  The claim was summarily rejected by the OP on the ground of ‘pre-existing condition’.  Therefore, she had no option to continue her treatment at her own cost.  Till date the complainant has incurred a personal expenses of over Rs.2,00,000/- on her treatment and the same will continue for some more time.  The complainant was informed that the OP has terminated her policy in toto at their own cognizance, even though it was valid till October 22, 2014.  On enquiry she was told that she lied about cancer while filling up the proposal form which warrants cancellation.

The complainant has filled up the form and paid the premium amount on 07^th October 2013 on which day she never imagined that she will be diagnosed with cancer within a month.  If at all the complainant had a dreaded disease like cancer on 07^th October she would never have waited upto 23^rd for a confirmation by mammogram and biopsy just to avail the insurance policy, whereas she is entitled to free medical treatment at command hospital.  It is a well known fact that the cancer spreads to the other parts of body rapidly and any delay in medical intervention could prove fatal.  Hence, cancelling the valid policy on the ground that the complainant has lied about cancer in the form filled up on 07^th October 2014 is not only an injustice, but also an infliction of mental trauma.  The complainant has never lied about the cancer in the application form and OP is wrongly accusing her lying about her disease to cancel the policy.

While the complainant is undergoing untold miseries, mentally and physically due to her ongoing cancer treatment, this unfair allegation comes as a shock as to the resort to the most vicious argument to ensure that Max Bupa can get out of providing relief to a person suffering from any disease including dreaded disease like cancer.  The complainant submitted her first claim on 13^th February, 2014 and OP rejected the claim vide their letter dated nil.  Till date the complainant has spent a total sum of Rs.2,00,000/- towards chemotherapy.  The complainant would be undergoing Radiotherapy as advised by the Oncologist from 09^th Jun 2014 for which she will have to spent another sum of Rs.80,000/-.  The conduct of OP in rejecting her claim caused financial loss as well as mental trauma to the complainant and she feels cheated by the OP for cancelling her policy on the ground that she has lied about her ailment in the application form.

For the aforesaid reasons, the complainant prays for an order directing the OP to pay her a sum of Rs.2,00,000/- towards Chemotherapy charges incurred at Columbia Asia Hospital, Rs.90,000/- Radiation therapy charges availed at M.S Ramaiah Hospital and Rs.1,00,000/- towards hormone and future treatment for the next six months.

3. In response to the notice issued OPs entered their appearance through their advocate and filed their version contending in brief as under:

A policy of Life Insurance is a policy of utmost good faith.  Upon receiving a policy proposal form on 07.10.2013 from the complainant and after medical examination of the complainant and approval by the underwriters, a mediclaim policy was issued in favour of complainant on 23.10.2013 and same was valid till 22.10.2014.  The policy was issued based on the declarations provided by the insured in her proposal form dated 07.10.2013.  The liability of the OP is subject to terms and conditions of the policy issued and date of coverage given in the policy.  The OP received a claim for reimbursement of the medical expenses incurred by the complainant on 17.02.2014 requesting for reimbursement of the medical expenses incurred towards the treatment for breast cancer at Columbia Asia Hospital, Bangalore.  The insured has visited the Columbia Asia Hospital on 17.10.2013 and hospital authorities have conducted the MAMMOGRAM BILATERAL 4 VIEWS of both breasts and have given several findings.  This test was conducted at least a week before the policy was issued.  Moreover, this test was conducted even before the customary medical examination was done by the OP.  The medical examination of the complainant was got done by OP on 19.10.2013.  However, while answering the questions given in the medical examination questionnaire the complainant conveniently and maliciously did not disclose that she has any lump in her breast for which she underwent mammogram on 17.10.2013.  On 21.10.2013 the examination conducted by the Command Hospital discloses that the complainant was suffering from breast cancer.  This diagnosis was also made before the policy inception as the policy was issued on 23.10.2014.  Even after being diagnosed with cancer, the complainant did not disclose the fact to the OP before issuance of policy.  The proposal of the complainant was accepted based on the answers, statements and declarations made by the insured in the proposal form and the questionnaire sought at the time of issuance of mediclaim policy.

In view of the medical consultation papers and medical test papers submitted by the insured, the OP was constrained to decline the claim of the complainant as the insured was diagnosed with breast cancer before the policy inception.  As per the proposal form it is the mandatory duty of insurer to disclose all the material facts and “caution” obliged the complainant to make full and frank disclosure of all facts material to the assumption of risk in relation to the complainant to issue a policy.  The complainant has suppressed the material facts from the OP with regard to test conducted on 17.10.2013 and again on 21.10.2013, all before the policy was issued.  Therefore, she is not entitled to any benefit under the policy.  By not disclosing about the breast cancer the complainant has led to violation of clause 4 (a) of terms and conditions of insurance policy and hence claim of the complainant was repudiated.  The complainant need to examine herself and witnesses to establish her claim.  That the complainant as per clause-5 (f) of the terms and conditions had 15 days time from the date of receipt of policy to read all the terms and conditions and then decide if she is still wishes to keep the policy.  The complainant never raised any queries with regard to the policy coverage or its terms and conditions at that time.  Hence, it is clear that the complainant had accepted the coverage provided in the policy as per its terms and conditions.  That this complaint has been filed by the complainant on customary basis without any basis.

For the aforesaid reasons, the OPs pray for dismissal of the complaint.

4. After the version was filed the complainant filed her affidavit evidence in support of the allegations made in the complaint.  One Sri.Vikram Jain, working as Senior Manager with OP filed his affidavit evidence in support of the averments made in the version filed.  The complainant has filed her written arguments.  However, OP failed to file their written arguments and also failed to advance oral arguments.

5. The points that arise for our determination in this case are as under:

        6. Perused the allegations made in the complaint and the documents filed in support of the same.  Perused the averments made in the version, sworn testimony of both parties, written arguments submitted by the complainant and other materials placed on record.

7. Our answer to the above points are as under:

REASONS

8.  (Point No.1) It is not in dispute that the complainant obtained a medi-claim policy from OP by paying premium amount of Rs.15,630/- valid for the period between 23.10.2013 to 22.10.2014.  The complainant has produced the insurance certificate issued by OP as well as premium receipt.  Admittedly the complainant submitted the proposal form on 07^th October 2013 and has paid the entire premium amount through cheque No.109320 in favour of OP on 09^th October 2013.  The complainant has undergone the customary medical check up on 19^th October 2013 and policy has been issued in favour of the complainant on 23.10.2013 which has been received by the complainant on 24.10.2013.

9. According to the complainant during a routine gynecology examination on 17.10.2013 a lump was detected in her left breast and she was advised to undergo mammogram based on which she was advised to go for Fine needle aspiration cystography (FNAC) for further investigation.  The FNAC was done at Air Force Command Hospital on 22.10.2013 and 23.10.2013 it was confirmed that the complainant has malignant lump in her left breast and was advised immediate surgery.  According to complainant she came to know about malignant lump in her left breast only on 23^rd October 2013 for the first time and till that day she was not aware that she is having cancer of her left breast.

10. The complainant claims that after 3 months lock-in period she submitted her claim for reimbursement to OP and her claim was rejected on the ground of pre-existing condition.  The complainant as per the records produced by her has incurred expenses of more than Rs.2,00,000/- for treatment of cancer at Columbia Asia Hospital, Yeswantpur.  The complainant on the assumption that the expenses incurred for her treatment are covered by mediclaim policy issued by the OP started, chemotherapy at Columbia Asia Hospital, Yeswantpur by expending more than Rs.2,00,000/-, by the time she submitted her claim to the OP.  The OP has repudiated the claim submitted by the complainant on the ground that the complainant has suppressed the pre-existing disease i.e., cancer, at the time of obtaining the policy.  The complainant denies the allegation that she was suffering with cancer at the time of obtaining policy and she was not at all aware of the same at the time of submitting proposal on 07.10.2013.

11. Now it has to be seen as to whether OP is justified in repudiating the claim of the complainant on the ground that the complainant has suppressed any pre-existing disease at the time of obtaining the policy.  As already stated above, the complainant submitted the proposal form on 07^th October 2013 and has paid the entire premium amount on 09.10.2013.  The complainant has underwent the customary medical test on 19.10.2013 arranged by the OP.  In the mean while the complainant has undergone routine gynecology examination on 17.10.2013 at which time a lump has been detected in her left breast and she has been advised to go for a mammogram based on which she has been advised to go for Fine Needle Aspiration Cystography for further investigation.  It is pointed out by the OP that on 19.10.2013 when the complainant was subjected to medical test she did not disclose about detection of a lump in her left breast and also advise given by the doctors to go for mammogram and for Fine Needle Aspiration Cystography (FNAC) for further investigation.  Thus, it is contended that the complainant was very well aware that the doctors had suspected malignant lump in her left breast on 17.10.2013 which was confirmed on 21.10.2013 itself.  It is further contended that the complainant deliberately suppressed the detection of lump in her left breast during the course of her medical examination arranged by the OP on 19.10.2013.  It is further contended that had she disclosed about the same they could have waited for out come of the FNAC test which ultimately confirmed that the complainant had malignant lump in her left breast.  Therefore, it is contended by the OP that the complainant is not entitled to claim any benefit under the said policy in pursuance of clause-4 exclusions contained in the policy. 

12. The complainant did not produce the original policy document to verify the terms and conditions governing the said policy.  OP though referred the relevant clauses of the policy in their version as well as in the affidavit but did not produce the copy of the policy.  Despite direction OP failed to produce the copy of the policy and other relevant documents.  Therefore, we have no other option but to relay upon the relevant clauses of the policy document as quoted in the version as well as affidavit filed by the OP, which have been not controverted by the complainant.

13. No doubt a insurance policy stands on the trust between the insurer and the insured.  The insurer accepts the replies given by the insured to all the questionnaire in the proposal form as well as during the course of medical examination.  The complainant submitted the proposal form on 07.10.2013.  In pursuance of the receipt of proposal form the complainant was subjected to medical examination on 19.10.2014.  It is pertinent to note that two days prior to the medical examination arranged by OP, for the purpose of issuing the policy in question, the complainant underwent regular medical checkup at Columbia Hospital and the doctors at the said hospital have conducted MAMMOGRAM BILATERAL 4 VIEWS of both breasts and they have advised the complainant to undergo Fine Needle Aspiration Cystography for further investigation.  On 17.10.2013 itself a lump in the left breast of complainant was detected and the doctors suspected it to be a breast cancer.

14. Admittedly on 19.10.2013 the complainant did not disclose to the doctors, who conducted her examination on behalf of the insurer, regarding MAMMOGRAM BILATERAL 4 VIEWS test of both her breasts and regarding detection of a lump in the left breast, suspected to be cancer.  The complainant has with held this material information at the time of answering the questions regarding medical history on 19.10.2013.  She has categorically stated to questionnaire that she has not experienced any health problems on medical conditions within the last three months of the said medical examination.  There is no explanation from the complainant as to why she failed to inform the doctors regarding her undergoing MAMMOGRAM BILATERAL 4 VIEWS procedure on 17.10.2013 and suspected cancerous lump in her left breast detected on 17.10.2013.

15. As per the advice of the doctors at Columbia Asia Hospital the complainant has undergone FNAC test on 22^nd October 2013 and on 23.10.2013 she was confirmed to be having a malignant lump in her left breast and was advised immediate surgery.  Thus according to the own admission of the complainant on 23^rd October 2013 she came to know that she is having a malignant lump in her left breast.  On 23.10.2013 the policy in question has been issued in favour of the complainant and she has received the said policy on the next day.  The complainant as per the terms and conditions of the policy is required to inform the insurer as to the latest health condition which came to her knowledge subsequent to submitting the proposal form till receipt of the insurance policy.  In every insurance policy a clause under the head ‘caution’ is mentioned and it appears that such a caution was also mentioned in the proposal form submitted by the complainant and the same reads as under:

“Caution”

“You are obliged to make a full and frank disclosure of all facts material to the assumption of risk in relation to you and every person proposed to be insured that would influence our decision to issue a policy, or the terms on which it is issued.  You must not misrepresent any information to us.  This obligation continues until the policy is issued, and does not end with the submission of this proposal form.  If, therefore, there is any change in the information given herein or new information comes to light before the policy is issued, then you must inform us the same in writing without delay.  If there is insufficient space to provide additional information, whether as requested or otherwise, than please attach an extra sheet duly signed.  If the disclosure obligations are breached, then this may render any policy issued void.”

16. In pursuance of above mentioned clause in the proposal form, the complainant was required to inform the insurer regarding the confirmation of malignant lump in her left breast immediately after receipt of the policy.  The complainant for the reasons best known to her has failed to inform the OPs regarding the detection of malignant lump in her left breast, in terms of the terms and conditions of the proposal form.

17. Admittedly every insurance policy, including one on hand in question, contains a free look period.  According to the said free look period the complainant has 15 days from the date of receipt of the policy documents to review the terms and conditions of the policy.  The standard terms and conditions of free look provisions of policy reads as under:

“5. Standard Terms and Conditions

(f) Free Look Provision

You have a period of 15 days from the date of receipt of the policy document to review the terms and conditions of this policy.  If you have any objections to any of the terms and conditions, you have the option of cancelling the policy stating the reasons for cancellation and you shall be refunded the premium paid by you after adjusting the amounts spent on any medical check up, stamp duty charges and proportionate risk premium.  You can cancel your policy only if you have not made any claims under the policy.  All the Insured persons and your rights under this Policy shall immediately stand extinguished on the free look cancellation of the policy.  The free look provision is not applicable and available at the time of renewal of the policy.”

18. The complainant has also not taken the benefit of free look period informing the OPs as to the detection of malignant lump in her left breast asking for review of the policy.  From the material placed on record. it is apparent that the complainant was detected with a malignant lump in her left breast on the insurance policy was issued.  The conduct of the complainant in not informing the OPs regarding her latest health conditions amounts to suppression of pre-existing illness.  Clause-4 of the exclusion of the policy reads as under:

“4. Exclusions

We shall not be liable under this policy for any claim in connection with or in respect of the following:

1. Pre-Existing conditions

Benefits will not be available for Pre-existing Conditions until 48 months of continuous coverage have elapsed since the inception of the first policy with us.”

19. As per the provisions contained in the exclusions, OPs are not liable to reimburse the expenses incurred by the complainant for the treatment of cancer.  Thus looking from any angle, the complainant, in our opinion, is not entitled to any of the reliefs claimed.  We don’t agree with the OPs that the complainant has suppressed the said illness deliberately or with any oblique motive.  It appears to us that only because of her ignorance the complainant appears to have failed to inform the OPs regarding her latest health conditions.

20. In view of the discussions made above, we are of the opinion that the complaint is liable to be dismissed.

21. The order could not be passed within the stipulated time due to heavy pendency.

22. In the result, we proceed to pass the following:

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  Parties to bear their own costs.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 21^st day of March 2016)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 27.11.2014.

1.  Mrs.Rumno Mukherjee

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite parties dated 10.04.2015.

1. Sri.Vikram Jain.  

Document produced by the Opposite parties -  Nil

MEMBER                            MEMBER                    PRESIDENT

Vln*