Delhi

North

CC/247/2024

STEPHAN RAJEEV JOSEPH LEVI & ORS - Complainant(s)

Versus

NIVA BUPA HEALTH INSURANCE COMPANY LIMITED - Opp.Party(s)

12 Apr 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.247/2024

In the matter of

Stephan Rajeev Joseph Levi

S/o Mr Berni Stephen Levi                          …      Complainant No. 1

David Anand Levi

S/o Mr Stephen Rajeev Joseph Levi            …      Complainant No. 2

Both resident of 15A, Baptist Mission Compound

Raj Niwas Marg

New Delhi- 110054                                    …      Complainants

Vs.

M/s Niva Bupa Health Insurance Company Limited

Registered office: C-98, 1^st Floor

Lajpat Nagar Part-1

New Delhi- 110024

Also at, Corporate Office:

14^th Floor, Capital Cyberscape

Sector 59, Gurugram

Haryana- 122102                                        …      Opposite Party

 

ORDER

12/04/2024

 (Divya Jyoti Jaipuriar)

1. We have heard the arguments of Shri Girish Chandra, Ld. Advocate on merits of the complaint. We have also perused the records placed by the Complainant in this complaint.
2. The main grievance of the Complainant is that the OP herein has repudiated the claim of the Complainants under clause 8.2 (b) and 8.12 of the policy terms and condition for the reason of non-disclosure of pre-existing medical condition of the insured/ patient. The OP has subsequently cancelled the policy as well.
3. The Complainant No. 1 herein is the policy holder of the Health Insurance Policy bearing no. 3306xxxxxx2300 issued by M/s Niva Bupa Health Insurance Company Limited (OP herein) w.e.f 25.03.2023. He is also insured under the policy along with his son namely David Anand Levi (Complainant no. 2 herein). The said policy was ported as per the portability guidelines of Insurance Regulatory &Development Authority of India (IRDAI) from M/s Star Health and Allied Insurance Company Limited (not a party). The policy was in continuation since 25.03.2018.
4. It is admitted position that neither to M/s Star Health and Allied Insurance Company Limited nor to the OP herein, the Complainant disclosed any pre-existing decease. The policy proposal issued by M/s Star Health and Allied Insurance Company Limited, which is on record, clearly indicates that “No PED” was declared for either of the insured Complainants. Even upon porting, the Complainants did not disclose any pre-existing medical condition to the OP herein, which is also apparent with the policy schedule issued by OP herein, which is part of the complaint.
5. It is an admitted position that the Complainant No. 2 was diagnosed with “Gilbert’s Syndrome” in the year 2015. When the Complainants lodged a claim for the treatment of Complainant No. 2, the same was repudiated by the OP herein on the ground that the Complainant No. 2 was having a pre-existing medical condition of “Gilbert’s Syndrome” which was not declared at the time of purchase of the policy. The Complainants have challenged this ground of repudiation primarily on two grounds:
   1. The Gilbert’s Syndrome is a mild disorder which does not require any medical treatment and the patient can live a normal and healthy life.
   2. When the policy was purchased in the year 2018 with M/s Star Health and Allied Insurance Company Limited, the health check-up was conducted only for Complainant No.1 and not for Complainant no. 2. As a result, there was no opportunity to discuss past medical history of Complainant No. 2, hence there was no opportunity to disclose the diagnosis of “Gilbert’s Syndrome.
6. On the first ground that the “Gilbert’s Syndrome” is a mild disorder and not a decease, Ld. Advocate for the Complainants has filed and relied on the extracts from the medical literature “Gilbert’s Syndrome” as most common form of “inherited disorder of bilirubin metabolism”. This condition is not associated with liver injury and need no treatment. The “Gilbert’s Syndrome” or “Congenital Hyperbilirubinemia” may not require any treatment, but it is indeed a genetic infirmity inherited by birth. Once it is a genetic infirmity, the same is necessarily required to be disclosed in the policy proposal form while applying for the policy.
7. It is not out of context to note here that while examining the discharge of Constable posted with Border Security Force, Hon’ble Delhi High Court in the matter of Rakesh Kumar Yadav vs Union of India [2009:DHC:5260-DB] was examining the issue related to the GIlbert’s Syndrom. In Rakesh Kuymar Yadav’s case (supra), Hon’ble Delhi High Court has held as under:

“7. What is Gilbert’s Syndrome?

8. In 1907 Gilbert submitted a report pertaining to patients of jaundice. Before Gilbert gave his report it was known that the bile enzyme breaks down fat and that bile is excreted by the liver. It was also known that liver filters impurities and toxins. Where the liver was unable to consistently process the yellowish brown pigment called bilirubin it remains present in the blood. Chronic cases of jaundice were found to be actually a Genetic/Congenital infirmity inherited by birth. Gilbert noted that such persons having an inherited abnormality which causes reduced production of an enzyme involved in processing bilirubin. This leads to high levels of unconjugated bilirubin in the blood stream. This infirmity was called Gilbert’s Syndrome by the experts in the field.

9. Further research was conducted which revealed that this infirmity did not result in known and definite pattern of resultant side effects on the human body. Conventionally understood a disease is something which produces or triggers other effects affecting the human body. For example, a simple cough is not treated as a disease as it has no effect on the body. Some people would call every de-stability of the body as a disease but prefer to label those as having no affect on the body as benign diseases. It was in this context of the debate that many a literature refers to Gilbert’s Syndrome as benign.

10. But, as tools of research were refined it came to be noted that those who inherit Gilbert Syndrome may sometimes, occasionally, commonly or frequently report fatigue, tiredness, panic attacks, poor memory, depression, irritability, loss of appetite, stomach pain and cramping, abdominal pain, swollen lymph nodes and weight loss. In other words, every person afflicted with Gilbert’s Syndrome may not show afore-noted symptoms with the same frequency. For somebody it may be a case of occasionally suffering from the resultant affect. For somebody it may be more than occasionally but less than commonly i.e. sometimes. For others it may be reported more than sometimes but less than frequently i.e. commonly reported and for some unfortunate ones it may be reported frequently.

…

12. Whether or not Gilbert Syndrome should be treated as a disease is a matter of debate amongst the experts in the field for the reason those who suffer from Gilbert Syndrome do not show a consistent pattern of resultant infirmity of the body. Further, Gilbert Syndrome does not inhibit normal functioning of a body. But, all scientists and experts in the field commonly agree that Gilbert Syndrome is the result of a genetic/congenital deformity inherited through parents. Thus, generically speaking Gilbert Syndrome has to be treated as a physical disability which may assume aggravated forms in those who come in the category of „Frequently Reported Cases‟ i.e. qua those on whom resultant effects as noted above frequent reoccur.

13. Now, there is enough data to show that those who suffer from Gilbert Syndrome resultantly get fatigue, tired, have stomach pain and cramping etc. etc. It is obvious that if these persons adopt a lifestyle which involves excessive physical activity, they would be rendered unable to perform their duties. Standard text on Gilbert Syndrome opines that: the fact is that there is a striking degree of similarity in the symptoms suffered by those with Gilbert’s Syndrome, and these symptoms can be incredibly disruptive to one’s life. Luckily, it is not life threatening. It is apparent that experts in the field are unanimous that Gilbert Syndrome disrupts one’s normal life, though it is not life threatening.”

8. In the above judgment, Hon’ble Delhi High Court has clearly opined that the Gilbert’s Syndrome may not be life threatening, but it does affect one’s normal life. Hence, the argument of the Complainants that the Gilbert’s Syndrome is just a mild disorder which does not affect normal life is not acceptable.
9. Hence, we are of the opinion that as the Complainants were aware about the existence of Gilbert’s Syndrome in Complainant No. 2 since 2015, they were duty bound to disclose the same at least to the first policy issuance company namely M/s Star Health and Allied Insurance Company Limited when the first policy was purchased in the year 2018. Admittedly the same was not done, which, in our opinion is a concealment of material information from the insurance company.
10. On the second ground that the Complainants did not have any opportunity to disclose about the Gilbert’s Syndrome of Complainant No. 2 to the M/s Star Health and Allied Insurance Company Limited, we again do not agree with the arguments of the Complainant. It is indeed a fact that prior to issuance of health insurance policy, M/s Star Health and Allied Insurance Company Limited got the pre-medical health check-up done only for Complainant No. 1. But the argument of the Complainants that there was no opportunity for them to disclose about pre-existing health condition of Complainant No. 2, is not correct. While purchasing the policy, the purchaser has to disclose certain information in the policy proposal form. The proposal form clearly requires disclosing about any pre-existing health conditions of all proposed insured person. The proposal form is the most important document, information in which is considered by the insurance company before issuance of the policy. The information to be furnished in the proposal form is sacrosanct and any concealment in the proposal form can be fatal for the insurance policy holder and beneficiaries of such policy.
11. In the context of non-disclosure in the proposal form, Hon’ble Supreme Court in the matter of Reliance Life Insurance Company Limited vs Rekhaben Nareshbhai Rathod [(2019) 6 SCC 175] has held that non-disclosure of existing individual life insurance policy by the insured is concealment of material fact and the Insurance Company is justified in repudiating the claim on such ground. In this context, Hon’ble Supreme Court has also referred to its earlier judgment in the matter of Satwant Kaur Sandhu vs New India Assurance [(2009) 8 SCC 316] in which it has been held that information sought in the proposal form is material for the purpose of entering into contract of insurance. In Reliance case (Supra), Hon’ble Supreme Court held as under:

“30. It is standard practice for the insurer to set out in the application a series of specific questions regarding the applicant's health history and other matters relevant to insurability. The object of the proposal form is to gather information about a potential client, allowing the insurer to get all information which is material to the insurer to know in order to assess the risk and fix the premium for each potential client. Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form the applicant declares that she/he warrants truth. The contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries. This allows the parties to serve their interests better and understand the true extent of the contractual agreement.

31.The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur [Satwant Kaur Sandhu v. New India Assurance Co. Ltd., (2009) 8 SCC 316 : (2009) 3 SCC (Civ) 366] “there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance”. Each representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.

32. In the present case, the insurer had sought information with respect to previous insurance policies obtained by the assured. The duty of full disclosure required that no information of substance or of interest to the insurer be omitted or concealed. Whether or not the insurer would have issued a life insurance cover despite the earlier cover of insurance is a decision which was required to be taken by the insurer after duly considering all relevant facts and circumstances. The disclosure of the earlier cover was material to an assessment of the risk which was being undertaken by the insurer. Prior to undertaking the risk, this information could potentially allow the insurer to question as to why the insured had in such a short span of time obtained two different life insurance policies. Such a fact is sufficient to put the insurer to enquiry.” (underlining by us)

12. In another judgment of Hon’ble Supreme Court in the matter of Oriental Insurance Company v. Mahendra Construction [2019 INSC 444: (2019) 18 SCC 209], Hon’ble Supreme Court has reiterated that the insured is under obligation to disclose all relevant information including previous insurance and claims, if any while applying for a new insurance policy. Such non- disclosure is concealment of material fact and is a valid ground for repudiation of the claim. In Mahendra Construction (supra), Hon’ble Supreme Court held as under:

“11 … Insurance is governed by the principle of utmost good faith, which imposes a duty of disclosure on the insured with regard to material facts.

•  

12 The burden cannot be cast upon the insurer to follow up on an inadequate disclosure by conducting a line of enquiry with the previous insurer in regard to the nature of the claims, if any, that were made under the earlier insurance policy. On the contrary, it was the plain duty of the respondent [insured] while making the proposal to make a clear and specific disclosure.

15. … This suppression goes to the very root of the contract of insurance which would validate the grounds on which the claim was repudiated by the insurer.”

13. It is clear from the judgment of Hon’ble Supreme Court in Reliance case (supra) and Mahindra Construction case (supra) that the when the insured purchased the policy in question, his non-disclosure of the existing health condition in the proposal form was clearly a case of suppression, untruth or inaccuracy in the statement of the insured and the same is a valid ground for repudiating the claim filed by the Complainants herein.
14. Therefore, we do not find any infirmity in the repudiation of the claim and cancellation of the health insurance policy by OP herein. Accordingly, we do not find any merit in this complaint. Resultantly, this complainant is dismissed at admission stage itself being devoid of merit. No costs.
15. Office is directed to supply the copy of this order to the parties as per rules. Office is also directed to return all original documents filed by the Complainant, if any, after keeping copies of the same in the record. Thereafter, file be consigned to the record room.

 

 

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

 

___________________________

Harpreet Kaur Charya, Member