Order dictated by:

Sh.S.S.Panesar,President.

1. Rakesh Kumar complainant has filed the present complaint under section 12 & 13 of the Consumer Protection Act on the allegations that complainant obtained a Family Health Insurance Policy bearing No. 10082692  for the period from 26.2.2014 to 25.2.2015from the opposite parties by making premium of Rs. 17,933/- covering the  medical treatment expenses to the extent of Rs. 5,00,000/- . It is pertinent to mention here that prior to issuing the policy in question, the medical check up of the complainant was got conducted by the opposite party and the complainant was found fit . It was only after thorough health examination of the complainant, the policy in question was issued to the complainant. During the validity of the policy period, the complainant was troubled with acute symptoms of fever and stress. He  consulted his doctor, who after check up referred the complainant to Fortis Escorts Hospital. The complainant remained admitted in the said hospital from 4.10.2014 to 5.10.2014 and incurred an expenditure of Rs. 21,196/- on his treatment. After discharge from the hospital, complainant lodged claim with the opposite party and requested for reimbursement of medical expenses and provided all the necessary documents for the disbursement of the claim. But the opposite party vide letter dated 16.12.2014 repudiated the claim of the complainant on false and unreasonable grounds. The complainant has sought for the following reliefs vide instant complaint:-

1. Opposite party be directed to release the claim amount of Rs. 21,196/- alongwith interest @ 18% p.a. from the date of lodging of claim till payment ;
2. Compensation to the tune of Rs. 50000/- may also be granted to the complainant alongwith litigation expenses to the tune of Rs. 5000/- may also be awarded to the complainant.

Hence, this complaint.

2.       Upon notice opposite parties No.1 & 2 appeared and filed a joint written version taking certain preliminary objections therein inter-alia that complainant has concealed the true and material facts from this Court. In this case as per investigation  it revealed that the insured was suffering from HYN for 1 year and weakness and fever for last 3-4 years as well as anxiety neurosis. This fact was concealed by the insured at the time of obtaining of insurance policy, therefore, the insured was suffering from pre-existing disease and he is not entitled for any claim; that in this case the opposite party had received documents for pre-authorisation  on 5.10.2014, as such the opposite party raised query dated 5.10.20214 regarding papers of previous treatment of complainant including exact duration since when the patient suffering from HTN and details of regular medication, indoor treatment papers, treatment chart, temperature etc. But instead of receiving reply, opposite party received a letter on 6.10.2014 that the complainant had paid the expenses and left, hence he did not availed cashless facility, therefore, the cashless request of the complainant was cancelled ; that on 15.10.2014 opposite party received claim documents  from the complainant regarding reimbursement of his claim. Opposite party raised query to the complainant vide letter dated 20.10.2014 regarding indication of admission from the treating doctor  and why the case could not be treated on OPD, ICP’s and OPD consultation papers as well as query regarding diagnosis of HTN and anxiety disorders. But no proper reply was given by the complainant . Thereafter  vide letter dated 24.11.2014 claim of the complainant was rejected and intimation regarding same was sent to the complainant. When it was found that the complainant was suffering from HTN for one year, weakness and fever for last three years, therefore, on the basis of concealment of facts, the notice for cancellation of policy was issued on 16.12.2014, even no reply of the same was given. Therefore, on 8.1.2015 the policy was cancelled and due intimation was given to the complainant. On merits facts narrated in the complaint have specifically been denied and a prayer for dismissal of complaint was made.

3.       In his bid to prove the case  Sh.Nitin Madaan,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1 alongwith documents Ex.C-3 to Ex.C-22 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence Sh.R.P.Singh,Adv.counsel for opposite parties NO.1 & 2 tendered into evidence affidavit of Sh. Ramneek Sachar ,Ex.OP1,2/1 alongwith documents Ex.OP1,2/2 to Ex.OP1,2/16 and closed the evidence on behalf of opposite parties No.1 & 2.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of both the parties.

6.       On the basis of the evidence, ld.counsel for the complainant has vehemently contended that it is not disputed that the complainant opted for Insurance policy in question by paying premium amount of Rs. 17,933/- and pre policy medical tests and examination were duly got done from SRL Laboratory  which is on the approved panel of opposite party. The complainant was found fit for obtaining the policy but the opposite party has deliberately and with malafide intention, concealed and withheld the  said reports from placing in their evidence. Opposite party has rejected the genuine claim of Rs. 21,196/- filed by the complainant for reimbursement of medical expenses incurred by him on the basis of tampered and manipulated medical record. Reference has been made to Ex.C-9 (medical record) wherein material part i.er. duration of fever 3-4 months is overwritten by years and the word Fatigue is replaced by general weakness . There also months have been converted into years so as to suit the purpose of repudiating the genuine claim. In Ex.OP1,2/7, there is overwriting of general body weakness for 3-4 years whereas such blatant errors and careless attitude can not be expected from the doctors of such a reputed hospital. So the said documents, therefore, cannot be relied upon to prove the actual state of affairs . Opposite party has failed to prove its allegation that the complainant was having a history of pre-existing disease . It has not examined any witness, who prepared the record or any doctor who treated the complainant before filling the proposal form. Reliance in this connection had been placed  upon Kamla Devi Vs. LIC of India 2016(2) CPJ page 649 (NC) wherein it has been laid down that neither any affidavit of Dr. Sandeep Jain has been filed by opposite party to prove that  deceased was treated in hospital in 1999-2000 nor any hospital record has been placed to substantiate that deceased was treated for chronic renal failure in that period ………In the absence of any cogent evidence, it cannot be presumed that deceased has taken treatment from PGIMS, Rohtak pertaining to Chronic Renal Failure before filling proposal form and has suppressed material disease and obtained policy in a fraudulent manner. Opposite party has also failed to make out on record as to what material fact was withheld by the complainant at the time of obtaining the policy. On one hand it alleged hypertension and on the other hand it rejected the claim on the ground of mental illness whereas no such symptoms have been proved. Neither the complainant had any history of depression nor of hysterical fits etc. If for the sake of arguments we assume that complainant was having hypertension, even then it had no nexus with the complainant suffering from fever and weakness for the treatment of which the claim was lodged. Moreover, National Commission has held that blood pressure and even diabetes are such diseases that are not sometimes known to the patient as they do not manifest any serious symptoms in the patient. Reliance in this connection had been placed on LIC Vs. Kolla Santhi & Anr 2016(1) CLT page 520 (NC) wherein it has been laid down that  hypertension is a common ailment that can be controlled by medication . The present case is one of twisting the facts by the opposite party for repudiating the genuine claim and it has been vehemently contended that complainant has been able to prove his case beyond reasonable doubt. Claim of the complainant was repudiated without any reasonable excuse and it is,therefore, contended that the complaint may be allowed with cost accordingly.

7.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that complainant has not been able to prove his case through evidence on record. In the case in hand Insurance policy was issued to the complainant  w.e.f 26.2.2014 to 25.2.2015 for a sum of Rs. 5 lacs covering the family of the policy holder, copy whereof is Ex.OP1,2/2. The said policy was cancelled vide cancellation letter dated 8.1.2015, copy whereof is Ex.OP1,2/3 on the  basis of violation of terms and conditions clause 6.1 and 6.13. At the time of procuring the policy, the complainant filled the proposal form  and in the said form, he specifically gave  the answer in negative wherein detail regarding pre-existing disease was sought , copy of the proposal form is Ex.OP1,2/4. As per documents  provided by the complainant, it was found that the complainant was suffering from weakness since 3-4 years and was diagnosed as a case of fever with  APD with anxiety neurosis . The certificate issued by Fortis Hospital dated 31.10.2014 Ex.OP1,2/5 and the discharge summary Ex.OP1,2/6 bear witness to the said fact. When the complainant was admitted in hospital, pre-authorization form was submitted  by him which is  Ex.OP1,2/7. In the said form it was duly stated that the patient was complaining for fever and general body weakness for 3-4 years and his clinical finding recorded his  BP as 160/110. As per treatment record Ex.OP1,2/8,  it is also apparent that complainant was treated for general weakness & fever for 3-4 years. The opposite party issued E-mail dated 20.10.2014 Ex.OP1,2/9 to the complainant for providing information and in reply dated 20.10.2014 Ex.OP1,2/10 and Ex.OP1,2/11, bearing the signatures of the complainant  It is admitted in reply to question No.11 that the complainant suffered from  anxiety, neurosis, hypertension, fever. From this reply, it becomes evident that complainant was having the knowledge of his pre-existing disease but he intentionally concealed  the same at the time of filling the proposal form for getting the insurance policy issued. Much stress has been laid on the point that  since there is cutting & over writing on treatment record Ex.OP1,2/8, therefore the medical record is not genuine. But since the cutting/over-writing has been duly authenticated by the treating doctor by appending his signatures, therefore, the authenticity of the same cannot be doubted by any stretch of imagination. When  complainant has been  found guilty of concealing the material facts at the time of obtaining the insurance policy, medical claim has rightly been repudiated. Reliance in this connection can be had on LIC Vs. Kuldeep  Singh decided by Hon’ble National Commission in Revision Petition No.1122 of 2011 decided  on 3^rd June 2015,  wherein it has been laid down that the term material fact has not been defined in the Insurance Act, it is understood to mean any fact which would influence the judgment of a prudent insurer in fixing the premium for determining whether he would like to accept risk. Any fact which goes to the root of the contract of Insurance and has a bearing on the risk involved would be “material”. Further reliance can be had on Jaspreet  Singh Vs.ICICI Home Finance Co.Ltd. Jalandhar and ICICI Home Finance Co.Ltd.Mumbai RP No. 113 of 2013 decided by the Hon’ble NCDRC , wherein it has been held that  the person approaching the court and seeking relief must come to the court/forum with clean hands. However, the complainant has suppressed  material facts not only from the opposite party but also from this Forum and as such, the complaint is liable to be dismissed on this score alone.  In Satwant Kaur Sandhu Vs. New India Assurance  Company Limited 2009(8)SCC 316 , Hon’ble Supreme Court of India  it has been held  that when information on a specific aspect is asked for in the proposal form, the assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. Obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known whether the information sought for is material for the purpose of the policy is a matter not to be determined by the proposer.

          It has further been held that  a mediclaim policy is a non life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information is material or not.

8.       From the aforesaid discussion, it transpires that the information regarding the pre-existing disease has been deliberately withheld by the complainant at the time of obtaining the insurance policy in dispute from the opposite party. Opposite party has rightly repudiated the claim of the complainant on account of non disclosure of material facts regarding pre-existing disease . Since the diseases i.e. fever, weakness, anxiety, neurosis were not covered under the Insurance policy in dispute, therefore, his claim was rightly repudiated under clause 4.3(A )(I)  and  general terms and condition No. 6.1. As such no fault can be found in the repudiation letter and therefore, complaint filed by the complainant fails and the same is ordered to be dismissed accordingly. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated:  5.10.2016.