Haryana

Karnal

CC/330/2019

Lovelesh Gupta - Complainant(s)

Versus

M/s Max Bupa Health Insurance Company Limited - Opp.Party(s)

Vinod Kumar Gupta

16 Dec 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 330 of 2019

                                                        Date of instt.13.06.2019

                                                        Date of Decision:16.12.2021

 

Lovelesh Gupta son of Shri Rajinder Parkash, resident of 12/357, Khatrian Street, Karnal, now resident of House no.117, Sector-14, Urban Estate, Karnal.

                                               …….Complainant.

                                              Versus

 

1.     M/s Max Bupa Health Insurance Company Limited, through its Managing Director, Registered office: Max House, 1, Dr. Jha Marg, Okhla, New Delhi-110020.

 

2.     M/s Max Bupa Health Insurance Company Limited, B-1/1-2 Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044, through its Chief Executive Officer.

 

3.     M/s Max Bupa Health Insurance Company Limited, through its vice President-Claims, B-1/1-2, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044.

 

                                                                      …..Opposite Parties.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

 

 Argued by: Shri Vinod Gupta, counsel for complainant.

                   Shri Lalit Chopra, counsel for opposite parties.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant got purchased medical insurance policy from the National Insurance Company Limited, which was got renewed every year, continuously since 2009 to 2014. Thereafter, complainant port his health policy from National Insurance Company to M/s Max Bupa Health Insurance Company i.e. OPs. After porting of policy, 1^st policy no.30345914201400 was issued, which was valid from 13.07.2014 to 12.07.2015, the sum assured was Rs.14,00,000/- and complainant paid a sum of Rs.29,279/- as premium. At the time of porting of the policy, complainant told about true, correct and fair particulars to the representative of OPs. Further, at the time of submitting the on-line form, complainant had specifically mentioned the word “YES” on the Information Summary Sheet, to the question, “within the last 7 years have you been to the Hospital for an operation and/or an investigation (e.g.”scan, x-ray, biopsy or blood test”). The complainant also told the representative of OPs that he had undergone an operation in 1988, besides the operation mentioned in the year 2009, but representative of OP clearly told the complainant that they require the information only for the last seven years.

2.             Further, the policy issued by the OPs for the year 2014-2015 was regularly issued/renewed, after every year and policy no.30345914201501, no.30345914201602, no.30345914201703 and no.30345914201804 were issued for a period from 13.07.2015 to 12.07.2016, 13.07.2016 to 12.07.2017, 13.07.2017 to 12.07.2018 and 13.07.2018 to 12.07.2019, for which, the complainant paid the premium of Rs.31233/-, Rs.32918/-, Rs.38254/- and Rs.40120/- respectively to the OPs. Complainant purchased the policy, through on-line from the OPs.

3.             Further, the complainant was suffering from acute pain and was admitted in Medanta Hospital, Gurugram on 27.09.2018 for which Doctors diagnosed stone in right Kidney and operation was conducted by Doctor Anil Mandhani, in Medanta Hospital, Gurugram. The complainant prior to admission, intimated the OPs regarding the operation and the hospital also sent e-mail for cashless claim for approval to the OPs and the complainant was directed to submit claim documents, after surgery. The complainant was discharged on 01.10.2018 from the hospital. Complainant spent a sum of Rs.1,22,027/-on his treatment. Although, complainant spent the sufficient amount on purchase of medicines, during admission in hospital, after operation, but the receipts of the same were lost by the complainant. Complainant submitted the claim with the OPs for reimbursement of the amount but OPs did not pay the claim and lingered the matter on one pretext or the other and lastly repudiated the claim of complainant on the false and frivolous ground. It is submitted that the complainant has not suppressed any material and true fact from the OPs and had told the representative of OPs regarding a surgery in 1988, as well as the factum of removal of Gall Bladder in the year 2009.  However, there is no nexus between the disease, for which, the complainant had to undergo operation from Medanta Hospital, Gurugram and that of the treatment/operations of complainant in the year 1988 and 2009. The complainant led a normal life from 1988, till 2009 and after the operation from 2009 till 2018. Even otherwise, in 1988, there was no history of stone and only a surgery for PUJ was performed. At the time of porting of the policy from National Insurance Company Ltd. to the OPs’ company, the complainant had verbally told all material facts to the representative of the OPs and the application form for purchase of policy was filled correctly, with all the available particulars with the complainant. In case, OPs were not satisfied with the submissions in the form for porting of the insurance policy, in that eventuality, the complainant would not have opted for porting of the policy from National Insurance Company Ltd. to the OPs’ company. The complainant, in the Information Summary Sheet, had clearly mentioned the word “YES” for the Hospitalization for an operation for the last 7 years, but anyhow, the policy since had been renewed every year, continuously without any hitch, from 2014-2015 to 2018-2019.  So, the issuance of repudiation letter dated 28.02.2019 is illegal, null and void and not binding on the rights of the complainant. Thereafter, complainant sent a legal notice dated 29.03.2019 to the OPs in this regard but it also did not yield any result. In this way there was deficiency in service on the part of the OPs. Hence, complainant filed the present complaint.

4.             On notice, OPs appeared and filed their written version, raising preliminary objections with regard to maintainability and cause of action. On merits, it is pleaded that Shri Lovelesh Gupta had approached the OPs in 2014 to port his health insurance policy from National Insurance Company Ltd. & resultantly applied for the insurance Policy through tele-sales and during the telephonic conversation, OPs asked specific questions to the complainant and on the basis of the information furnished by the complainant, a policy was issued in 2014 however, the same was renewed from time to time and lastly renewed bearing policy no.30345914201804, commencing from 13.07.2018 upto 12.07.2019 where the sum assured was Rs.1,00,000/- for an individual and Rs.10 lacs available as a family floater. The policy was issued to the complainant on the basis of tele-sales for issuance of insurance whereby personal information was submitted by the complainant on his own health. Before issuing the policy, specific questions were asked by the OPs by way of tele-sales, however, the complainant had replied in negative and question no.1 in positive. Complainant filed a claim form dated 26.09.2018, however, during processing of said claim, it was revealed that the complainant was suffering from the PUJ stone since 1988 and also operated for Gall Bladder in 2009 which was not disclosed during the policy inception/tele-sales and the same clearly indicates that the story has been evolved by the complainant just to get the insurance claim. Moreover, the answers given by the complainant to the specific questions regarding his medical history during tele-sales were totally wrong and false. It is established that there has been breach of one of the basic principles of the life insurance which is of “Utmost good faith” and OPs have rightly repudiated the claim of the insured. It is further pleaded that since the material information pertaining to his own health has been concealed by the complainant while submitting the information on tele-sales pertaining to pre-existing illness, hence, the policy of the complainant was cancelled as per terms and conditions of the policy. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             The parties then led their respective evidence.

6.             Complainant tendered into evidence his affidavit Ex.CW1/A, emails from Lovlesh Gupta Ex.C2 and Ex.C3, email from Shriam Max Bupa Ex.C4, payment details (statement of claim) Ex.C5, email dated 19.12.2018 from Lovelesh Gupta Ex.C6, portability form Ex.C7, payment details (Member reimbursement statement of claim) Ex.C8, email from Grievance Redressal to Lovelesh Gupta dated 28.02.2019 Ex.C9, email from Grievance Redressal to Lovelesh Gupta dated 03.01.2019 Ex.C10, email dated 01.11.2018 Ex.C11, reply on email Ex.C12, portability process email dated 03.07.2014 Ex.C13, policy Application Ex.C14, policy document (insurance certificate) Ex.C15, page is intentionally left blank Ex.C16, information summary sheet Ex.C17, email dated 08.07.2014 Ex.18, email dated 08.07.2014 from Shiram @ Max Bupa Ex.C19, email dated 15.07.2014 Ex.C20, temporary receipt (customer copy) Ex.C21, email dated 03.07.2014 Ex.C22, Insurance Regulatory & Development Authority (Portability form) Ex.C23, paper of policy dated 09.07.2013  Ex.C24, paper of policy dated 03.07.2021 Ex.C25, mediclaim policy Ex.C26, hospitalization benefit policies Ex.C27 to Ex.C32 and closed the evidence on 19.02.2021 by suffering separate statement.

7.             On the other hand, OPs tendered into evidence affidavit of MS. Chandrika Bhattacharya, Chief Manager Ex.OP1/A, copy of letter of authorization Ex.OP1, copy of letter dated 04.07.2018 Ex.OP2, Pre-authorization form (cashless) Ex.OP3, estimate form Ex.OP4, notice of cancellation of policy Ex.OP5, Investigating Report Ex.OP6, Member Reimbursement statement of claim Ex.OP7, Denial of Authorization Ex.OP8, reply to legal notice Ex.OP9 and closed the evidence by suffering separate statement.

8.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant purchased a medical insurance policy from the National Insurance Company Limited, which was got renewed every year, continuously since 2009 to 2014. Thereafter, complainant port his health policy from National Insurance Company to M/s Max Bupa Health Insurance Company i.e. OPs. After porting of policy, 1^st policy was issued, which was valid from 13.07.2014 to 12.07.2015, the sum assured was Rs.14,00,000/-. At the time of porting of the policy, complainant told about true, correct and fair particulars to the representative of OPs. Thereafter, the policy issued by the OPs for the year 2014-2015 was regularly issued/renewed since the year 2019. He further argued that on 27.09.2018 the complainant was suffering from acute pain and was admitted in Medanta Hospital, Gurugram for which Doctors diagnosed stone in right Kidney and operation was conducted by Doctor Anil Mandhani, in Medanta Hospital, Gurugram. The complainant prior to admission, intimated the OPs regarding the operation and the hospital also sent e-mail for cashless claim for approval to the OPs and the complainant was directed to submit claim documents, after surgery. The complainant was discharged on 01.10.2018 from the hospital. Complainant spent a sum of Rs.1,22,027/-on his treatment. Complainant submitted the claim with the OPs for reimbursement of the amount but OPs did not pay the claim and lingered the matter on one pretext or the other and lastly repudiated the claim of complainant on the false and frivolous ground. In case, OPs were not satisfied with the submissions in the form for porting of the insurance policy, in that eventuality, the complainant would not have opted for porting of the policy from National Insurance Company Ltd. to the OPs’ company.  He further argued that the act of OPs issuance of repudiation letter dated 28.02.2019 amounts to deficiency in service and unfair trade practice. Hence, prayed for allowing the complaint.

10.           Per contra, learned counsel for OPs while reiterating the contents of the written version, has vehemently argued that the policy was issued to the complainant on the basis of tele-sales for issuance of insurance whereby personal information was submitted by the complainant on his own health. Before issuing the policy, specific questions were asked by the OPs by way of tele-sales, however, the complainant had replied in negative and question no.1 in positive. Complainant filed a claim form dated 26.09.2018, however, during processing of said claim, it was revealed that the complainant was suffering from the PUJ stone since 1988 and also operated for Gall Bladder in 2009 which was not disclosed at the time of portal of policy. He further argued that since the material information pertaining to his own health has been concealed by the complainant while submitting the information on tele-sales pertaining to pre-existing illness, hence, the policy of the complainant was cancelled as per terms and conditions of the policy. There is no deficiency in service on the part of the OPs. Hence, prayed for dismissal of the complaint.  The learned counsel for OPs relied upon the authorities Dineshbhai Chandrana Vs. LIC and another in first appeal no.242/2006, decided on 27.07.2006 (NC); Life Insurance Corporation of India Vs. Manish Gupta 2019 (2) RCR (Civil) 906 (Supreme Court); Export Credit guarantee Corporation of India Ltd. Vs. M/s Garg Sons International 2013 (2) R.C.R. (Civil) 428 and United India Insurance Co. Ltd. Vs. M/s Harchand Rai Chandan Lal 2005(1) R.C.R. (civil) 217.

11.           We have duly considered the rival contentions of the parties.

12.           Admittedly, the complainant purchased Medico insurance policy from National Insurance Company which was got renewed every year, continuously since 2009 to 2014. Thereafter, complainant ports his health policy from National Insurance Company to M/s Max Bupa Health Insurance Company i.e. OPs and the same was also renewed from the year 2014 to 2019 continuously.  It is also admitted fact that during subsistence of the policy, the complainant fell ill and got submitted medical bills with the OPs for reimbursement of the claim and the OPs repudiated the claim of the complainant on the ground which is reproduced as under:-

“the patient had a history of operated for PUJ stone in 1988 and also operated for Gall Bladder in 2009 which falls prior to policy inception with Max Bupa. This has been noted from the documents received from the hospital and as per the detail sent by complainant. We have notice that the mentioned condition was not disclosed to us at the time of taking the policy.

The non disclosure of material facts stated above has affected our ability to judiciously assess the state of health at the time of issuing the policy. We, therefore, regret to inform you that as per the available facts and medical records, we are not in a position to honour the claim request:388193 and we will maintain our earlier decision the mentioned claim request due to non disclosure of material facts.

We would like to inform you that during processing of your claim it has been noticed that there has been a non-disclosure of pre-existing i.e. Right Pyeloplasty in 1988 for primary PUJ illness/medical condition at the time of applying for health insurance policy.

In the light of the facts and the information available with us, we regret to inform you that we are unable to continue with the policy coverage any further”.

 

13.           The main question for consideration before us whether the complainant had concealed the true and material facts at the time of portal of the policy in question.

14.           The case of the OPs is based upon the telephonic conversation between the parties at the time of portal of the insurance policy. As per the version of the OPs, complainant had a history of operated for PUJ stone in 1988 and also operated for Gall Bladder in 2009 which falls prior to policy inception with Max Bupa Health Insurance Company Limited.  The onus to prove it lies upon the OPs but OPs are miserably failed to prove its version by leading any cogent and convincing evidence. The OPs have not placed on record any alleged telephonic conversation. The case of the OPs is clearly based upon the oral evidence, no documentary evidence has been produced by the OPs to prove its version. Moreover, it is evident from the email Ex.C1 dated 04.07.2014 wherein it has been mentioned that there is no attachment please send once again and please provide me the claim declaration regarding the stone. It is also evident from the email dated 08.07.2014 wherein it is stated that  complainant was operated in June, 2009 as gall bladder was removed due to stone by Dr. Adarsh Chaudhary in City Hospital, Pusa Road Delhi and the claim was settled approximately 1,25,000/-This email sent by the complainant to the OPs.

14.           It is evident from the Information Summary Sheet Ex.C17 dated 13.07.2014 that the OPs had put medical questions to the complainant. The medical questions reproduced as under:-

Medical questions	Within the last 2 years have you consulted a doctor or healthcare profession?	Within the last 7 years have you been to Hospital for an operation and/or an investigation (eg. scan, x-ray, biopsy or Blood test)?	Do you take tablets, medicines, or drugs, on a regular basis?	Within the last 3 months have you experienced any health problems or medical conditions which you have been seen a doctor for?
Ms. Samriti Gupta	No	No	No	No
Mr.Abhishek Gupta	No	No	No	No
Ms.Ritu Gupta	No	No	No	No
Mr. Lovelesh Gupta	No	Yes	No	No

It has been clearly proved from the said information sheet that complainant has disclosed all the facts with regard to his medical history. So, it cannot be said that OPs were not aware about the disease to the complainant. The complainant has specifically stated that the representative of the OPs on very occasional as and when he received the call from the OPs about the medical history, he disclosed everything to the OPs. Hence, in view of the above discussion, facts and circumstances of the case, we are of the considered view that complainant has not concealed the true and material facts with regard to surgery in 1988, as well as the factum of removal of Gall Bladder in the year 2009, at the time of portal of the insurance policy. Hence, the act of the OPs amounts to deficiency in service and unfair trade practice while repudiating the claim of the complainant, which is otherwise proved genuine.

        The case laws mentioned in the written version by the OPs are not applicable to the facts of the present complaint.

16.           The complainant has spent Rs.1,22,027/- on his treatment which proved from the payment detail Ex.C5 and said bill has not been disputed by OPs. Hence, complainant is entitled to the above said amount of Rs.1,22,027/- alongwith compensation and litigation expenses.

17.           In view of our above discussion, we allow this complaint and direct the OPs to pay claim amount of Rs.1,22,027/- to the complainant alongwith interest @9% per annum from the date of repudiation of the claim till its realization. We further direct the OPs to pay a sum of Rs.20,000/- as compensation for harassment and mental agony suffered by her and also to pay a sum of Rs.11,000/- as litigation expenses to the complainant. This order shall be complied with within 45 days from the date of receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:16.12.2021

                                                                       

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

 

(Vineet Kaushik)       

                            Member