CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

  UdyogSadan, C – 22 & 23, Institutional Area

          (Behind Qutub Hotel)

   New Delhi – 110016

    Case No.130/2019

1.    Gaurav Gandotra & Anr.            

S/o Shri Kuldip Gandotra

2.    Shri Kuldip Gandotra

S/o Late Shri MM Gandotra

Both Residents of :

C-9/9551, Vasant Kunj

New Delhi…..COMPLAINANT

Vs.

          Religare Health Insurance Company Ltd.

          Regd Office :

          5^th Floor, 19^th Chawala House

          Nehru Place

          New Delhi-110019.                                          …..RESPONDENTS

Date of Institution-28.02.2023

Date of Order-20.10.2023

         O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency of service on the part of OP in repudiating the claim of the complainant.

2. Facts stated in complaint are that complainant had taken a Health Mediclaim Policy bearing No.10180394 and Group Policy  No. 10110769 dated 16.12.2015 for himself and his father for a sum insured of Rs.5,00,000/- valid from 15.12.2015 to 14.12.2016.

3. In early January, 2016 the complainant fell ill and had persistent dry cough, breathlessness and running nose for more than a week. The complainant No. 1 visited Dr. Vivek Nangia at Fortis Hospital in OPD and was prescribed medicine and test on 08.01.2016. The complainant No. 1 did not get better and he was advised hospitalization vide prescription dated 08.01.2016, 11.01.2016 and 12.01.2016. The complainant was admitted in Fortis Hospital from 12.01.2016 to 16.01.2016. He was diagnosed and treated for LRTI, and viral induced wheezing.

4. The complainant paid a hospital bill of Rs.1,21,870/-. He lodged a claim with OP for Rs.1,40,997/- for pre-hospitalization as well as hospitalization expenses. The complainant also raised a bill Of Rs.1,03,337/- for post hospitalization expenses incurred from 17.01.2016 to 16.03.2017.

5. OP vide email dated 29.03.2016 asked for a recent photograph, photo ID and address proof. The complainant sent these documents vide letter dated 31.03.2016 even though, he avers that these documents were already sent on 01.02.2016. OP vide letter dated 11.03.2016 informed the complainant that they have raised queries for the treating doctor. OP vide email dated 03.08.2016 sent a copy of query letter dated to the complainant. This email contained the heading “final reminder” was addressed to Dr. Vivek Nangia.

6. The complainant vide email dated 09.08.2016 explained his medical history along with the documents. The complainant’s sent reminder letters for reimbursement of claim which are dated 30.08.2016, 12.09.2016 and 03.10.2016. The complainant vide letter dated 09.11.2016 forwarded a certificate issued by Dr. Nangia, the treating doctor. The complainant vide email dated 20.12.2016 informed the opposite party that the certificate of the treating doctor has been sent.

7. OP vide letter dated 02.10.2016 closed the claim stating that reply to “query to doctor” is still pending. It is submitted that the said letter closing the claim was sent by speed post to complainant on 11.11.2016 and duly received on 12.11.2016.

8. The complainant sent an email dated 07.01.2019 wherein he again forwarded the doctor’s certificate along with HBA1C report for reimbursement of claim. OP vide email dated 23.01.2019 informed the complainant that he case was reviewed but was rejected under non-disclosure of LRTI. OP vide email dated 29.01.2019 rejected the claim of the complainant on grounds of pre-existing vertigo, respiratory disorder and diabetes mellitus.

9. Complainant submits that there were different reasons for refusal of claim in the claim rejection letters dated 23.01.2019 and 29.01.2019. Complainant’s submits that he was not suffering from any of the disease mentioned in letter dated 29.01.2019. The complainant has enclosed a copy of the certificate of treating doctor, reports of HBA1C, prescription of Dr. Ajay Lall dated 01.06.2018, PFT report dated 19.03.2018 and Six Minute walk test report dated 22.05.2018 to establish that there was no pre-existing disease.

10. The complainant prays for the payment of claim amount of Rs.2,44,334/- with 12% interest, Rs.1,00,000/- for compensation and Rs.1,00,000/- for litigation expenses.

11. OP in its reply has submitted that complaint is not maintainable as there is no deficiency in service. OP states that complainant had obtained a health insurance policy, subject to terms and conditions. OP states that the complainant was hospitalized in Fortis Hospital Vasant Kunj from 12.1.2016 to 16.1.2016 with the diagnosis of LRTI, Viral Induced Wheezing.  OP alleges that documents filed by the complainant suggested that he was a known case of COPD and Diabetes. In order to analyse the claim, OP sent a query letter dated 11.3.2016 and 3.08.2016 to the treating doctor for clarification.  As there was no reply from the doctor’s side, the claim was denied vide letter dated 30.9.2016 on grounds of ‘query reply not received’. 

12. OP reopened the same claim under a new claim No.90827343-00.  On scrutiny of documents, OP found that prior to policy inception, the complainant was hospitalized and discharged twice. As per discharge summery dated 09.09.2014, the complainant was diagnosed with acute vertigo with complaints of dizziness, loss of consciousness, shortness of breath and slurring of speech. The complainant was hospitalized again and discharged on 21.11.2014. This was also prior to the inception of insurance policy. As per the said discharge summary, the complainant was diagnosed with Fungal Chest Infection with chief complaints of cough, breathlessness, fever, chest pain.  The blood sugar was also found to be high (Steroid induced).  Also, the complainant was prescribed with a medicine RX-GALVUSMET’ which is allegedly used for the treatment of Maturity onset diabetes, Type 2 diabetes mellitus.  OP imputes that the complainant had a pre-existence disease of respiratory disorders, acute vertigo and diabetes mellitus.

13. OP came to conclusion that the complainant is suffering from pre-existing diseases of acute vertigo, respiratory disorders and diabetics mellitus and hence the claim was rejected vide email and letter dated 29.01.2013 as per clause 5.2 of the policy terms and condition.  OP further states that insurance is a contract based on good faith.

14. The complainant in his rejoinder has reiterated the averments made in the complaint.  The complainant has once again restated that the treating doctor, Dr. Vivek Nangia had issued a certificate dated 9.11.2016.  The complainant has denied suffering from any pre-existing acute vertigo, respiratory disorders and diabetes mellitus.  It is stated that acute vertigo is only a condition and not a pre-existing disease. 

15. The complainant further submitted that as per claim rejection letter dated 23.01.2019, it was mentioned that the claim was rejected under non-disclosure of LRTI which was false as the hospitalisation was for LRTI and there is no question of non-disclosure. The complainant has underlined that he was not suffering from any other diseases mentioned in claim rejection letter dated 29.01.2019. However, the complainant has further denied that he was a known case of COPD and Diabetes.  The complaint is silent about hospitalisations before the inception of the policy.

16. The complainant has filed affidavit by way of evidence and has exhibited the following documents:

1. True copy of the said Policy Bond is exhibited  as Ex.P-1
2. Doctor prescriptions dated 08.01.2016 and 12.01.2016 is exhibited as Ex.P-2 (Colly).
3. Discharge summery dated 16.01.2016 is exhibited as Ex.P-3
4. Final Hospitalisation bill is exhibited as P-4.
5. Copy of letter dated 01.02.2016 alongwith claim form and postal receipt is exhibited as Ex.P-5 (Colly).
6. Copy of letter dated 16.3.2016 alongwith claim form and postal receipt is exhibited as Ex.P-7.
7. Query to Doctor letter dated 11.3.2016 is exhibited as Ex.P-8 (Colly).
8. True copy of letter to Dr. Vivek Nangia is exhibited as Ex.P-10.
9. True copy of letter dated 09.08.2016 alongwith document is exhibited as Ex.P-11 (Colly).
10. True copy of reminder letters dated 30.8.2016 and 12.09.2016 are exhibited as Ex.P-12 (Colly).
11. True copy of letter dated 09.11.2016 alongwith the certificate of the doctor and postal receipt is exhibited as Ex.P-13 (Colly).
12. True copy of letter dated 2.10.2016 alongwith tracking delivery report is exhibited as Ex.P-14.
13. True copy of letter dated 20.12.2016 is exhibited as Ex.P-15.
14. Copy of e-mails are annexed and exhibited as Ex.P-16 (Colly).
15. Copy of claim rejection email is annexed and exhibited as Ex.P-17.
16. Copy of letter alongwith the documents are exhibited as Ex.P-18 (Colly).

17. The OP has filed affidavit by way of evidence   and have exhibited the following documents:

1.  Copy of certificate of incorporation is marked as Ex.R1.
2. Certificate of Insurance is marked as Ex.R.2.
3. Copy of Policy Terms and Conditions is marked as Ex.R3.
4. Copy of claim form is marked as Ex.R.4
5. Copy of letter dated 03.08.2016 is marked as Ex.R.6.
6. Copy of claim rejection letter dated 30.09.2016 is marked as Ex.R-7.
7. Copy of discharge summary of the complaint is marked as Ex.R-8.
8. Copy of order dated 31.10.2019 of Insurance Ombudsman is marked as Ex.R-9.
9. Copy of claim rejection letter dt.29.01.2019 is marked as Ex.R.10.

18. The Commission has considered the material and documents on record. The Certificate of Insurance shows that complainants were insured from 05.12.2014 onwards with OP. It is also admitted that complainant was also hospitalized from 12.01.2016 to 16.01.2016 and a claim was filed with OP.

19. Emails and letters placed on record by the parties are as follows:

30.08.2016 and 12.09.2016-Complainant sent reminder letters to OP through speed post for reimbursement of claim.

20. Repudiation letter dated 02.10.2016 is as follows:-

• Query to doctor reply is still pending as submitted is not given by treating doctor.
• Query reply not recd. Hence close.

21. Repudiation letter dated 23.01.2019 is as follows:-

We would like to inform you that we have reviewed your case on the basis of provided reply to QTD and same will be reopened for reject under NON-DISCLOSURE OF LRTI.

22. Repudiation letter dated 29.01.2019 is as follows:-

Case rejected as pre-existing acute vertigo, respiratory disorders and diabetes mellitus at the time of policy inception.

23. The OP insurance company has sent query to the doctor asking for the past medical/ surgical history. OP has asked about earlier HRCT report dated 03.08.2015 which appeared to be indicative of COPD. OP has also enquired about urine routine investigation which shows glucose +++ and diabetic diet prescribed for the complainant.

24. The complainant has replied to the query vide letter dated  09.08.2016. The relevant portion is as follows:

It is pertinent to mention that PFT report of the undersigned is not suggestive of COPD and the purpose to conduct HRT test was only to re-examine Fungal Chest infection.The undersigned was never diagnosed or treated for COPD.

It is admitted that Resident Duty Doctor has inadvertently missed mentioning that the undersigned was earlier treated (Past History) for:

1. Left knee Arthroscopy with open repair of medical capsule under GA on 19^th August 2014 by Dr. Gurinder Bedi, Orthopaedics, Spine Surgery and Joint replacement surgery;
2. Fungal Chest  infection for which the undersigned was admitted in Fortis Flt.Lt. Rajan Dhall Hospital, Vasant Kunj, New Delhi -110070 from 7^th November 2015 it 21^st November 2014 treated by Dr. Vivek Nangia; and
3. PUO since April 2015 and the undersigned treatment was never diagnosed for any Tuberlusios but was put on ATT Medicines since 20^th August 2015 till May 2016 by Dr. Vivek Nangia.
4.  

I would like to state that the Blood Sugar Levels were fluctuating due to intake of Steroid (Dose of Wysolone) as prescribed by doctor 1 week prior of my hospitalisation from 12^th January 2016 to 16^th January 2016 in Fortis Flt. Lt. Rajan Dhall Hospital.

25. The complainant vide letter dated 09.11.2016 has forwarded a certificate issued by Dr. Vivek Nangia, the treating doctor.  The certificate is undisputed. The same is reproduced as:

This is to certify that Patient Gaurav Gandotra, 31/M, was admitted in this hospital with UHID 285859 and IPID 89256 on 12^th January 2016 to 16^th January 2016 with the diagnosis of ? LRTI? Viral Induced Wheezing.He was admitted through causality with complaint of fever, running nose, cough and breathlessness.He underwent PFT and other investigations.

This is to further state that PFT Report suggestive of moderate restrictive with small airway defect with no reversibility and is not suggestive of COPD.It is further stated that patient was never diagnosed or treated for COPD.It is admitted that Resident Duty Doctor has inadvertently missed mentioning that the patient was earlier treated for Left Knee Arthroscopy with open repair of medical capsule under GA on 19^th August 2014 by Dr. Gurinder Bedi, Orthopaedics, Spine Surgery and Joint Replacement Surgery; Fungal Chest Infection for which the patient was admitted in our Hospitalfrom 7^th November 2015 to 21^st November 2015; and ; PUO since April 2015 till May 2016 but patient was never diagnosed or treated for Tuberclosis but was put on ATT Medicines since 20^th August 2015 till May 2016.The blood Sugar Levels were fluctuating due to intake of Steroid (Dose of Wysolone) 1 week prior of his hospitalisation stay in our hospital.

This is to further certify that during the period of his hospitalization, we had not treated or given him any medication for COPD and diabetic or any other ailment in any manner.None of these have contributed to his present illness.

The following investigations/tests like ECG, Coronary Risk Profile, IgE, Thyroid Panel, and the line of treatment for the patient has been done in due course in terms of the rules and regulations of Fortis Flt. Ltd. Rajan Dhall Hospital for the well being and maintenance of the health of the patient.

26. The prescription dated 08.01.2016, 09.01.2016 and 11.01.2016 from Fortis Hospital, Vasant Kunj, has been placed on which shows that complainant was advised hospitalization for persistent wheezing/cough. The discharge summary for the said hospitalization shows:

Date of admission – 12.01.2016

Date of discharge- 16.01.2016

Diagnosis

LRTI ? Viral Induced Wheezing

Chief Complaints

Cough (Dry)* 1 week

Breathlessness * 1 week

Running nose * 1 week.

27. OP has stated that complainant was earlier hospitalized on 09.09.2014 and November, 2014 prior to policy inception. The discharge summary of earlier hospitalisation has been placed on record by OP.

28. Discharge summary dated 21.11..2014 is as follows:

Date of Admission  : 7.11.2014

Date of Discharge :21.11.2014

7 Fungal chest infection

CHIEF COMPLAINTS

Cough X 5 days

Breathlessness X 4 days

Fever X 1 day

29. Discharge summary dated 09.09.2014 is as follows:

Date of admission: 06.09.2014

Date of discharge: 09.09.2014

Acute vertigo

CHIEF COMLAINTS

Dizziness X 2 days

Loss of consciousness 1 episode today evening

Shortness of breath since today morning

Slurring of speech since today morning.

30. Clause 5.2 of the policy is as follows:

Disclosure to Information Norm

“If any untrue or incorrect statements are made or there has been a misrepresentation, misdescription or non-disclosure of any material particulars or any material information having been withheld, or if a claim is fraudulently made or any fraudulent means or devices are used by the You, the Insured Member or any one acting or his/their behalf, the Company shall have no liability to make payment of any claims and the premium paid shall be forfeited to Us.

31. LRTI is defined in website HexaHealth -
32.  

What is Lower Respiratory Tract Infection?

Lower Respiratory Tract Infection refers to infection of the body's airways. These infections develop below the larynx (voice box), including the trachea and the alveolar sacs in the lungs.

32. From the chronology of events, it can be seen that the policy of the complainant commenced in December, 2014. He lodged a claim for hospitalization from 12.01.2016 to 16.01.2016. The diagnosis was LRTI and viral induced Wheezing and complaints of cough, breathlessness and running nose. The complainant was admitted in November, 2014 with diagnosis of fungal chest infection and complaints of cough, breathlessness, fever, chest pain. The complainant was also admitted in September, 2014 with diagnosis of acute vertigo and complaints of dizziness, loss of consciousness, shortness of breath, slurring of speech.

33.  The policy was repudiated first on 02.10.2016 on the ground of ‘query to doctor’ reply still pending. It was repudiated again on reopening of claim on 23.01.2019 for non-disclosure of LRTI. The policy was repudiated again on 20.09.2019 on grounds of pre-existing acute vertigo, respiratory disorder and diabetes mellitus.

34. The three hospitalizations including the two hospitalizations before the inception of the policy, had complaints of cough, breathlessness, shortness of breath and similar complaints. All three hospitalizations were under Department of Pulmonology. The second hospitalization in November, 2014 prior to inception of the policy gives a diagnosis of fungal chest infection. The medical literature shows that a fungal infection is one of the causes of LRTI i.e. Lower Respiratory Tract Infection.

35. The complainant in his reply to the query placed before the doctor conveniently fails to disclose the hospitalization in September, 2014. This hospitalization has not even mentioned in doctor’s certificate, though, the treating doctor was same in all three hospitalizations.

36. Hon’ble Supreme Court in Branch Manager, Bajaj Allianz Life Insurance Company Ltd and Others Vs. Dalbir Kaur 2020 SCC Online SC 848 has observed:

9.A contract of insurance is one of utmost good faith. A proposer who seeks to obtain a policy of life insurance is duty bound to disclose all material facts bearing upon the issue as to whether the insurer would consider it appropriate to assume the risk which is proposed. It is with this principle in view that the proposal form requires a specific disclosure of pre-existing ailments, so as to enable the insurer to arrive at a considered decision based on the actuarial risk. In the present case, as we have indicated, the proposer failed to disclose the vomiting of blood which had taken place barely a month prior to the issuance of the policy of insurance and of the hospitalization which had been occasioned as a consequence. The investigation by the insurer indicated that the assured was suffering from a pre-existing ailment, consequent upon alcohol abuse and that the facts which were in the knowledge of the proposer had not been disclosed. This brings the ground for repudiation squarely within the principles which have been formulated by this Court in the decisions to which a reference has been made earlier. In Life Insurance Corporation of India vs Asha Goel, this Court held:

“12…The contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of risk which may take place between the proposal and its acceptance. If there is any misstatements or suppression of material facts, the policy can be called into question. For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person.” CA 3397/2020 6

10 This has been reiterated in the judgments in P C Chacko vs Chairman, Life Insurance Corporation of India and Satwant Kaur Sandhu vs New India Assurance Company Limited. In Satwant Kaur Sandhu vs New India Assurance Company Ltd., at the time of obtaining the Mediclaim policy, the insured suffered from chronic diabetes and renal failure, but failed to disclose the details of these illnesses in the policy proposal form. Upholding the repudiation of liability by the insurance company, this Court held:

“25. The upshot of the entire discussion is that in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a “material fact”. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form.

Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance.”

11 Recently, this Court in Reliance Life Insurance Co. Ltd. vs Rekhaben Nareshbhai Rathod5, has set aside the judgement of the NCDRC, whereby the NCDRC had held that the failure of the insured to disclose a previous insurance policy as required under the policy proposal form would not influence the decision of a prudent insurer to issue the policy in question and therefore the insurer was disentitled from repudiating its liability. This Court, while allowing the repudiation of the insurance claim, held:

“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 5 (2019) 6 SCC 175 CA 3397/2020 7 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 (supra) "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.”

The medical records which have been obtained during the course of the investigation clearly indicate that the deceased was suffering from a serious pre-existing medical condition which was not disclosed to the insurer. In fact, the deceased was hospitalized to undergo treatment for such condition in proximity to the date of his death, which was also not disclosed in spite of the specific queries relating to any ailment, hospitalization or treatment undergone by the proposer in Column 22 of the policy proposal form. We are, therefore, of the view that the judgment of the NCDRC in the present case does not lay down the correct principle of law and would have to be set aside. We order accordingly.

37. Doctor’s certificate also states that the hospitalization was suggestive of moderately restrictive airways. It is clear that complainant was suffering from respiratory disorders prior to the inception of the Policy. This was a material fact to be disclosed by the complainant at the time of taking the policy. In the light of discussion, held above and view taking by Hon’ble Supreme Court OP has rightly repudiated the claim under Clause 5.2 of the terms and conditions of the policy. Hence, the complaint is dismissed with no order to costs.