IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of November, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No.01/2023 (Filed on 04/01/2023)
Complainant : Sajimsha S.A S/o Salahudeen,
Thadathilvila House,
Valavupacha P.O,
Chithara, Kottarakkara,
Now working as Special Grade Assistant,
Kerala State Financial Enterprises,
Kuruppanthara Branch,
Kottayam - 686 603.
(By Adv: S. Pradeep Kumar)
Vs.
Opposite parties : (1) Niva Bupa Health Insurance Company Ltd.,
Formerly known as Max Bupa Health
Insurance Company Ltd.,
7-B, Puthuran Plaza,
40/483 V, M.G Road, Kochi – 682035.
(2) Niva Bupa Health Insurance Company Ltd.,
(Formerly known as Max Bupa Health
Insurance Company Ltd.,
Corporate Office, Block B1/1-2,
Mohan Cooperative Industrial Estate,
Mathura Road,
New Delhi – 110 044.
(Both by Advs: Nithin Sunny Alex &
Saji Issac K.J)
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under Section 35 of the Consumer Protection Act 2019.
Case of the complainant is as follows:
Complainant has purchased a health insurance policy from the first opposite party by paying an amount of Rs.29,478/- as premium. The policy covers the complainant, his wife and minor daughter. Policy period was two years from the date of purchase and expiry date of policy was on 30/08/2020. On 4/03/2019 complainant was brought to KIMS Hospital, Thiruvananthapuram with severe fever and clinical diagnosis confirmed acute viral hepatitis and he was admitted on the same day and discharged on 12/03/2019. He was admitted in medical ICU for three days and treated with antibiotics. An amount of Rs.1,76,335/- was paid by the complainant as hospital bill. Immediately after the recovery complainant approached the opposite party for reimbursing the said amount and sent notice through email, but they refused to pay the amount on flimsy ground. On 6/09/2022 complainant sent a legal notice to opposite parties demanding the amount but on 21/09/2022 they sent reply stating that they were unable to trace out the policy details in the absence of policy number or ID number in notice. After getting reply notice on 15/10/2022 complainant again sent a clarification notice to opposite parties. In reply dated 21/11/2022 opposite parties repudiated the claim. The act of the opposite parties is deficiency in service and unfair trade practice. Hence this complaint is filed by the complainant for an order to direct the opposite parties to reimburse Rs 1,76,335/- with interest to the complainant and to pay Rs.50,000/- as compensation and Rs.10,000/- as the cost of this litigation.
Opposite parties appeared before this Commission and filed joint version contending as follows:
The complainant had availed a family first silver policy from the opposite parties. The policy was issued to the complainant on the basis of proposal form submitted by the complainant. The policy was issued to the complainant for the period from 31/08/2018 to 30/08/2020 individual base sum insured of Rs.1,00,000/- for each insured and floater sum insured of Rs.3 lakhs.
The complainant in the medical history section of the proposal answered as negative to the specific questions regarding the health of the complainant and also as to whether he was taking any medication or inhalation. The complainant was on medication for Bronchial Asthma and was on inhaler at the time of submitting the proposal form. Had the complainant disclosed the fact that he was having Bronchial Asthma at the time of submitting the proposal form the opposite parties would not have issued the policy to the complainant. The complainant had suppressed material facts which were vital in assessing the risk by the opposite parties.
According to the conditions of the policy if a claim is in any way found to be fraudulent or if any false statement or declaration is made or used in support of
such a claim or if any fraudulent means or device are used by the insured person or anyone acting on behalf of the insured person or any false or incorrect disclosure to information norms to obtain any benefit under this policy then the company may serve the right to re-underwrite or cancel the policy and all claims being processed shall be forfeited for all insured persons and all sums paid under this policy shall be repaid to company. There is no deficiency in service on the part of the opposite parties and the complainant is not entitled for any relief as claimed.
Complainant filed proof affidavit and marked Exhibits A1 to A8. Sudhakar Anand who is the Manager (Legal) of the opposite parties filed proof affidavit and marked Exhibits B1 to B5 from the side of the opposite parties
On evaluation of complaint, version and evidence on record we would like to consider the following points :
(1) Whether the complainant had succeeded to prove deficiency in service or unfair trade practice on the part of the opposite parties?
(2) If so what are the reliefs and costs?
For the sake of convenience we would like to consider Point Nos.1 and 2 together.
POINTS 1 & 2 :-
There is no dispute on the fact that the complainant had availed a family first silver policy from the opposite parties for the period from 31/08/2018 to 30/08/2020. On perusal of Exhibit A1 policy we can see that the complainant, his wife and daughter are the insured persons and the base sum insured was Rs.1,00,000/- for each persons and floater sum insured Rs.3 lakhs. Exhibit A2 is the discharge summary issued from the KIMS Hospital, Thiruvananthapuram. It is proved by Exhibit A2 that the complainant was treated at KIMS hospital from 4/05/2019 to 12/05/2019 as an in-patient for acute viral hepatitis. It is further proved by Exhibit A3 that the complainant had paid Rs.1,76,335/- to the hospital for his treatment expenses. The opposite parties vide Exhibit A8 informed the complainant that it was observed that as per submitted document the insured person had a history of Bronchial Asthma since childhood which was prior to inception of policy and the same was not disclosed at the time of taking insurance policy and the claim was denied in accordance with the policy terms and conditions.
The complaint was resisted by the opposite parties stating that the complainant had suppressed the medical condition pertaining to Bronchial Asthma since childhood which is prior to the inception of the policy. It was recorded in page number 3, 4 and 7 of Exhibit B4, hospital record of the complainant in KIMS hospital that the complainant was a known case of Bronchial Asthma since childhood. In Exhibit B5 which is submitted by the complainant to the opposite parties in answer to the query it was answered by Dr.Sujit M. Thomas that the complainant had past history of Bronchial Asthma 10 years. Therefore, based on this information, it appears that the complainant is currently using Asthalin MD1 puff as needed for the management of Bronchial Asthma symptoms, approximately 3 to 4 times a year.
On Perusal of Exhibit B1 proposal form we can see that the complainant had stated in the medical history section as negative to the specific questions regarding the health condition of the complainant in section A and also as to whether he was taking any medications or inhalation. He did not answer section B which were specific questions regarding the ailments.
In Manmohan Nanda vs United India Insurance Co. Ltd, Hon’ble Supreme Court has held as under :
“(i) There is a duty or obligation of disclosure by the insured regarding any material fact at the time of making the proposal. What constitutes a material fact would depend upon the nature of the insurance policy to be taken, the risk to be covered, as well as the queries that are raised in the proposal form.
(ii) What may be a material fact in a case would also depend upon the health and medical condition of the proposer.
(iii) If specific queries are made in a proposal form then it is expected that specific answers are given by the insured who is bound by the duty to disclose all material facts.
(iv) If any query or column in a proposal form is left blank then the insurance company must ask the insured to fill it up. If inspite of any column being left blank, the insurance company accepts the premium and issues a policy, it cannot at a later stage, when a claim is made under the policy, say that there was a suppression or nondisclosure of a material fact, and seek to repudiate the claim.
(v) The insurance company has the right to seek details regarding medical condition, if any, of the proposer by getting the proposer examined by one of its empanelled doctors. If, on the consideration of the medical report, the insurance company is satisfied about the medical condition of the proposer and that there is no risk of pre-existing illness, and on such satisfaction it has issued the policy, it cannot thereafter, contend that there was a possible pre-existing illness or sickness which has led to the claim being made by the insured and for that reason repudiate the claim.
(vi) The insurer must be able to assess the likely risks that may arise from the status of health and existing disease, if any, disclosed by the insured in the proposal form before issuing the insurance policy. Once the policy has been issued after assessing the medical condition of the insured, the insurer cannot repudiate the claim by citing an existing medical condition which was disclosed by the insured in the proposal form, which condition has led to a particular risk in respect of which the claim has been made by the insured.
(vii) In other words, a prudent insurer has to gauge the possible risk that the policy would have to cover and accordingly decide to either accept the proposal form and issue a policy or decline to do so. Such an exercise is depended on the queries made in the proposal form and the answer to the said queries given by the proposer.”
On Perusal of Clause 12.20.20 Exhibit B2 policy we can see that the policy shall be void and all premiums paid thereon shall be forfeited to the company in the event of misrepresentation, mis-description or non-disclosure of any material facts.
Had the complainant disclosed his medical condition of Bronchial Asthma the opposite parties must be able to assess the likelihood risks that may arise from the status of health condition of the complainant. Herein the case on hand, on a close evaluation of evidence adduced by the both parties we can see that the complainant had suppressed the fact relating to Bronchial Asthma which is in the exclusive knowledge of the complainant.
On evaluation of above discussed evidence we are of the opinion that the complainant had failed to prove any deficiency in service or unfair trade practice on the part of the opposite parties and the complaint is to be dismissed.
In the result the complaint is dismissed.
Pronounced in the Open Commission on this the 24th day of November, 2023
Sri.Manulal.V.S, President Sd/-
Smt.Bindhu.R, Member Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Exhibits from the side of the Complainant :
A1 - Policy Document
A2 - Copy of Discharge Summary dated 12/03/2019 issued
from KIMS Hospital, Thiruvananthapuram
A3 - Copy of Medical Bill dated 12/03/2019 issued
from KIMS Hospital, Thiruvananthapuram
A4 - Copy of lawyer notice dated 06/09/2022 issued by the
lawyer of the complainant to the opposite parties
A5 - Postal Receipts of A4 lawyer notice
A6 - Copy of reply notice dated 21/09/2022 issued by the
opposite parties
A7 - Copy of lawyer notice dated 15/10/2022 issued by the
lawyer of the complainant to the opposite parties
A8 - Copy of Repudiation Notice dated 21/11/2022 issued by
the opposite parties
Exhibits from the side of Opposite parties :
B1 - Copy of Proposal Form
B2 - Copy of Policy
B3 - Copy of Claim Form submitted by the complainant
B4 - Copy of relevant pages of hospital record of the
complainant from KIMS Hospital, Trivandrum
B5 - Copy of insurance query letters
By Order,
Sd/-
Assistant Registrar
