ORDER
SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint against opposite parties for getting an order directing to pay Rs.3,00,000/- to the Complainant towards treatment expenses incurred Rs.1,00,000/- as compensation for mental trauma, 75,000/- as compensation for adopting the misleading advertisement constituting unfair trade practice and the cost of this proceedings.
Briefly stated the facts of the case are the complainant on seeing the advertisement made by the OPs in the social medias decided to avail health insurances from the OP No.1 and the same was renewed from time to time vide policy 17/02/2018 to 16/02/2019. The insurance premium amounts for availing and renewing the above said insurance policy were paid by the complainant to the OP No.1 through the OP No.2. The complainant has paid an amount of Rs.14,244/- to OP No.1 for availing above said health insurance policy. The complainant decided to avail the above Health Insurance policy from the OP No.1 believing the advertisement given by the OPs that they will provide highest quality of health care. The total amount payable to the insured as per the above said policy including hospitalization and medical expenses is up to Rs.3,00,000/-. In the month of January 2019 the complainant developed low grade fever with cough and shortness of breath followed by single hemoptysis. Immediately the complainant was taken to Koyili Hosptial, Kannur and underwent emergency treatment. The doctors referred the complainant to Aster Mims Hosptial, Kozhikode in view of desaturation. Accordingly the complainant was admitted in Aster Mims Hosptial, Kozhikode on 11/01/2019 and underwent treatment for pulmonary hemorrhage and respiratory failure. The lab results showed evidence of hemolysis with thrombocytopenia and metabolic acodosis and CXR showed bilateral dense infiltrates with collapse which are secondary to pulmonary hemorrhage. The complainant continued treatment on supportive management, ion tropic supports and high PEEP repeated autoimmune panel along with other supportive measures. The complainant was discharged on 31/01/2019 with advice to continue alternative day dialysis on OP follow up basis and continue medicines for two weeks. The complainant had to spend more than nine lakh rupees for her treatment. The complainant has submitted a claim form before the OP No.1 through the OP No.2 as per the Above Health Insurance Policy claiming the treatment expenses incurred by her in connection with the above illness along with all documents including hospital bills and medical bills for Rs.8,25,000/- vide claim No.9087256 claiming a total amount of Rs.3,00,000/-. But the claim was denied by the OP No.1 as peer claim Denial letter dated 13/03/2019 stating that there is non-disclosure of Crescentic Glomerulonephritis before policy inception and sating that there is pre-existing ailments. The complainant submits that the claim was submitted claiming treatment expenses incurred for pulmonary hemorrhage and respiratory failure and not crescentic Glomerulonephritis. Then the OP No.1 unilaterally cancelled the above policy No 12121713 vide e-mail dated 05/11/2019 to which the complainant send a reply on 19/11/2019 stating the above facts. Complainant submits that there is no ‘non disclosure of material facts/pre-existing ailments at the time of proposal’ as alleged n the e-mail. Hence there is deficiency in rendering the service to the complainant by the OPs. The OPs are liable to compensate the complainant for the same in addition to the payment of the sum of Rs.3,00,000/- towards the medical treatment expenses incurred by complainant as per the above Health Insurance policy. Hence the complaint.
OPs, after being served, entered appearance can filed the written version denying the allegations made in the complaint. Justifying the repudiation of the claim, it is pleaded that OP No.1 Insurance company has issued policy to the complainant with effect from 17/02/2018 till 16/02/2019 for a sum insured of Rs.3,00,000/-. Further the said policy was renewed till 16/02/2020. Further the complainant was undergone treatment from Aster Mims Calicut as impatient for a period from 11/01/2019 till 31/01/2019. Another facts is that after discharging from hospital complainant submitted claim form to OP No.1 and OP No.1 company rejected the claim of the complainant stating the reason “Non-disclosure of material facts/pre-existing ailment at the time of proposal. It was specified under Past Medical History, “Mrs. Geethabayi Prasannan was initially evaluated in the institution on December 2014 with features of crescentic glomerulonephitis (pauci immune GN) with negative ANCA. She was treated with immunosuppressive medication (steroid + mycophenolate) for a period of 2 years after which the immunosuppressive medications were withdrawn, which will show that the ailment was pre-existing. It is also submitted that in the proposal form, the complainant had to the opportunity to disclose her history of crescentic Glomerulonephritis prior to policy inception but she didn’t do so for the reasons best known to her. The fact that the complainant didn’t disclose the material fact renders the policy liable to be cancelled in accordance to clause 7.13 read with clause 7.1 of the policy terms and conditions. The OP No.1 company accordingly gave a notice of cancellation vide letter dated 05/09/2019 and the policy was completely cancelled along with the forfeiture of premium vide letter dated 07/02/2020. It is submitted that under the above circumstances this OP has no other way but to repudiate the clam made by the complainant. It is also submitted that the repudiation of the claim does not amount to deficiency of service. There was no denial of claim by the OP No.1 arbitrarily, as alleged in the complaint. There is no deficiency in service on the side of the OP No.2 in settling the claim of the compliant. The complainant not entitled to any amount being the compensation for adopting the misleading advertisement. Hence, prayed for the dismissal of complaint.
OP No.2 also filed separate version stating that the complaint of the complainant is not maintainable against the 2nd OP as there is no privity of contract between the complainant since the allegations are about insurance policy. Further submits that the 2nd OP after tie up with M/w Religare Health Insurance Co. Ltd. (1st OP) was only acting as corporate Agent of the said insurance company. The complainant after getting all the information, propose signed by the complainant had made the insurance premium payment in favour of the OP No.1 insurance company through 2nd OP after the complainant was fully satisfied and after issuance of the policy in his favour along with various terms and conditions annexures, thereafter the roll of the 2nd OP ceases and as such herein the complainant has unlawfully arrayed the 2nd OP in the present matter for which this OP is not liable to any extend and the relationship of the complainant with the OP No.1 is direct and if the complainant has any grievance, or dispute that is with the OPNo.1 not with the 2nd OP. The complaint of the complainant as no cause of action against the 2nd OP therefore the present complaint is liable to be dismissed.
At the evidence complainant filed a petition to cause produce all the medical papers and bills submitted by complainant for getting policy benefit, to OP1, by OP1. As per the direction OP submitted all the medical bills and other papers and documents submitted by the complainant along with the claim form.
Complainant has filed chief-affidavit of complainant and also a petition to appoint an Advocate commissioner to take deposition of her. The prayer was allowed and as per the direction Advocate commissioner after giving due notices to the counsels of parties taken the evidence of complainant. She has been cross-examined for OPs. Marked Ext.A1 to A4 and medical bills and records as Ext.X1 series.
After that the learned counsels of complainant and OP NO.1 filed their argument notes.
The undisputed facts in this case are that, OP NO.1 Insurance company has issued policy to the complainant with effect from 17/02/2018 till 16/02/2019 for a sum insured of Rs.3,00,000/-. Further the said policy was renewed till 16/02/2020. Further the complainant was undergone treatment from Aster Mims Calicut as impatient for a period from 11/01/2019 till 31/01/2019. Another fact is that after discharging from hospital complainant submitted claim form to OP No.1 and OP No.1 company rejected the claim of the complainant stating the reason “Non-disclosure of material facts/pre-existing ailment at the time of proposal.
OP Company submitted that as per the discharge summary of Aster Mims dated 31/01/2019. It was specified under Past Medical History, “Mrs. Geethabayi Prasannan was initially evaluated in the institution on December 2014 with features of crscentic glomerulonephitis (pauci immune GN) with negative ANCA. She was treated with immunosuppressive medication (steroid + mycophenolate) for a period of 2 years after which the immunosuppressive medications were withdrawn, which will show that the ailment was pre-existing. It is also submitted that in the proposal form, the complainant had to the opportunity to disclose her history of crescentic Glomerulonephritis prior to policy inception but she didn’t do so for the reason best known to her. Learned counsel of OP submitted that it is admitted that the complainant deposed in cross-examination that he had no dispute regarding the terms and conditions of the policy and she is eligible for the claim only as per the terms and condition. Further Pw1 deposed that in answer ot the 1st question, the complainant deposed that she is now treating with dialysis which is started from 2022. She realized that she had kidney problem in the year 2014. And further deposed that on confirming the same treatment for kidney was taking from 2014 onwards. It is also submitted that the complainant further deposed that “on the date of the policy on 17/02/2018 and even before availing policy the complainant was under treatment for kidney problem. And, further deposed that I am aware at the time of availing policy itself that I am under treatment for kidney decease.”
The learned counsel of OP submitted that the Insurance Regulatory and Development Authority of India (IRDAI)(Protection of Policy Holder’s Interest) Regulations, 2017 under Clause 19(4) enumerating the “General Principles” casts an absolute duty to disclose all material facts to the Insurer in order to assess the risk as per it’s capacity. “The plicy holder shall furnish all information that is sought from him by the insurer, either directly or through the distribution channels which the insurer considers as having a bearing on the risk to enable the insurer to assess properly the risk covered under a proposal for insurance”. The learned counsel referred a number of decisions of Apex court to support their argument and states that OP had denied the claim of complainant as per the terms and conditions of the policy and there is no deficiency in service on the part in repudiating the complainant’s claim.
On the other hand the learned counsel of complainant argued that The above claim No.90872563 was submitted claiming treatment expenses incurred of pulmonary hemorrhage and respiratory failure and not Crescentic Glomerulonephritis. At the time of taking the policy there was no such illness to the complainant to be suppressed and even the symptoms of Crescentic Glomerulonephritis can be detected only in the final stage and cannot be detected in the initial stage as per medical science. Hence there is no ‘Non Disclosure of Material Facts/Pre-Existing ailments at the time of proposal’ as alleged in the e-mail and the said allegation is made only to escape from the liability of paying the compensation as per claim No.90872563 under the policy. Hence the claim denial letter dated 13/03/2019 is unsustainable.
Hence there is no ‘Non disclosure of Material facts/Pre-existing ailments at the time of proposal as alleged by OP No.1.
It is fundamental principle of Insurance law that the contract of Insurance is a contract of utmost good faith on the part of the insured. When information on a specific aspect is asked for in the proposal form, the insured is under a solemn obligation to make a true and full disclosure of the information the subject which is within his knowledge.
It is not disputed that the insured while taking the policy had not disclosed that she was suffering from crescentic glomerutonephritis. The only point which falls for determination before us is whether there wan non-disclosure of pre-existing disease in the proposal form.
Complainant’s claim is that she had submitted claim for the treatment expenses incurred for pulmonary hemorrhage and respiratory failure and not crescentic Glomeruloenphritis. Further submitted that at the time of taking the policy there was no such illness to the complainant to be suppressed. Hence there is non- disclosure of material facts or pre-existing ailments at the time of proposal.
On perusal of Discharge Summary in Ext.X1 series, Final Diagnosis was “Pulmonary hemorrhage-Respiratory failure-ventilated RPGN-Crescentic glomerulonephritis: C ANCA positive vasculitis, Plasmapheresis and one dose Rituxumab given Hemodialysis initiated on 14/1/2019.
Further past medical History reveals that Mrs. Geethabayi Prasannan was initially evaluated in this institution on December 2014 with features of crescentic glomerulonephritis (pauci-immune GN) with negative ANCA. She was treated with immunosuppressive medications (steroid+mycophenolate) for a period of 2 years after which the immunosuppressive medications were withdrawn. She developed nephritic relapse which was treated with a course of cyclophomide and oral steroids. She was continued on immunosuppression for another additional 2 years.
Hence from the discharge summary, it is revealed that, peripheral smear Report : 13/01/2019, suggestive of Microangiopathic hemolysic anemia, Neutrophilic leucocystosis, thrombo cytopenia. Diagnosis as ‘RPGN’.
From discharge summary it is evident she had availed treatment of crescentic Glomerulonephitis also along with pulmonary hemorrhage and respiratory failure.
More over during cross-examination Pw1 the insured has deposed that “ഞാനിപ്പോൾ ഡയാലിസിസ് ചെയ്യുന്നുണ്ട്. 2022 ജുലൈയിൽ ആണ് ഡയാലിസിസ് തുടങ്ങിയത്. 2014 ലാണ് കിഡ്നി സംബന്ധമായ അസുഖമുണ്ടെന്ന് എനിക്ക് മനസ്സിലായത്. അത് മനസ്സിലാക്കിയത് മുതൽ കിഡ്നി സംബന്ധമായ ചികിത്സ എടുക്കുന്നുമുണ്ട്.” Further “പോളിസിയുടെ കാലാവധി തുടങ്ങന്ന തീയ്യതിക്കും അതിന് മുമ്പും കിഡ്നി രോഗത്തിന് ചികിത്സ ഉണ്ടായിരുന്നു. പോളിസി എടുക്കുന്നതിനു മുമ്പ് എനിക്ക് കിഡ്നി സംബന്ധമായ രോഗമുണ്ടെന്ന് എനിക്ക് അറിയാമായിരുന്നു.”
Here complainant does not have a case that she had disclosed her disease in the proposal form while taking Health Insurance Policy and also have a case that she had knowledge about the policy terms and conditions. As a health Insurance policy the insured should have given her health condition in the proposal form which she has knowledge at that time. But here the insured had failed to disclose this fact about the illness which she was suffering while filling the proposal form. In Satwant Kaur Sandh V New India Assurance company Ltd. (2009)8SCC 316 submitted by the Learned counsel of OP, it has been observed by the Supreme court that “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 emphasize that any inaccurate answer will entitled 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.”
Here we are of the view that the statement made by the insured in the proposal form about her health was untrue of her knowledge. There was clear suppression of material facts in regard to the health of the insured and therefore, the insurance company was fully justified in repudiating the Insurance contract. We respectfully follow the view taken by the Hon’ble Supreme court in Satwank Kaur Sandhuse case and accordingly dismiss this complaint.
In the result this complaint is dismissed. No order as to cost.
Exts.
A1- Original insurance policy dated 17/02/2018
A2- Claim denial letter dated13/03/2019
A3-Print out of e-mail dated 05/11/2019
A4-Reply to e-mail dated 19/11/2019
X1-Medical bills and other papers and documents submitted by the complainant along with claim form.
Pw1- Complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forwarded by order/
Assistant Registrar
