Order dictated by:

Sh.S.S.Panessar,President.

1.       Shri Dinesh Kapoor complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant is permanent resident of H.No. 1214/10, Inside Lohgarh Gate, Gali Kucha Atthuwal, Amritsar and is peace loving and law abiding citizen of India. The complainant  obtained a health Insurance policy bearing No. P/211111/01/2015/005193 in the name of his father namely Sh. Sunil Kapoor. The insurance policy in dispute was valid w.e.f. 12.3.2015 to midnight of 11.3.2016 and in this regard complainant paid a sum of Rs. 15000/- as premium. On 29.6.2015 father of the complainant i.e. insured person slipped in the bathroom and suffered a fracture . In this regard Sunil Kapoor remained admitted in Medi Star Multi Superspeciality Hospital, Amritsar  and in the hospital Dr. Hardas Singh Orthopaedic  Hospital, Amritsar, where he was medically operated and the complainant spent more than of Rs. 85000/- on the treatment of his father namely Sunil Kapoor. Opposite parties were duly informed regarding the said incident and all the relevant documents were submitted by the complainant to the opposite parties within stipulated time period.  The complainant lodged  his claim with the opposite parties vide claim No. 0087230 but the genuine claim of the complainant was rejected illegally by the opposite parties vide letter dated 12.8.2015  on lame excuses. The complainant approached the opposite parties many a times and asked that why his genuine claim has been repudiated, but the officials of the opposite parties could not give any satisfactory reply. Since then complainant has paid numerous visits to the office of the opposite parties but they have been putting of the matter on one pretext or the other. The cause of action arose to the complainant firstly on 12.8.2015 and genuine claim of the complainant was repudiated and lastly 2 /3 days back when the opposite parties flatly refused to accept the claim of the complainant. The complainant has sought for following reliefs vide instant complaint :-

(i)      Opposite parties be directed to accept the genuine claim of the complainant and to release the amount of Rs. 85000/- alongwith interest @ 18%  till its actual realization;

(ii)     Opposite parties be also directed to pay compensation and litigation expenses to the tune of Rs.5000/-.

Hence, this complaint.

2.       Upon notice, opposite parties No.1 & 2 appeared and filed joint written version taking certain preliminary objections therein inter alia that complaint as framed is not legally maintainable ; that the complainant has not come to the  Forum with clean hands and suppressed the true and material facts from this Forum, as such, complainant is not entitled to any relief as claimed for; that complainant is estopped by his own act and conduct from filing the present complaint ; that complainant has got no cause of action to file the present complaint ; that in case any act done against terms and conditions of the policy and due to contravention of terms and conditions of the policy, the opposite party is not liable for any claim; that complainant  obtained insurance policy under plan of Health Gain in the name of his father Sunil Kapoor bearing policy No. P/211111/01/2015/0005193 valid from 12.3.2015 till midnight of 11.3.2016. However, claim was lodged by the complainant seeking reimbursement of hospitalization expenses for the treatment of fracture neck of femur left at Dr. Hardas Singh Orthopaedic, Amritsar on 20.6.2015.  Accordingly the claim was processed and on scrutiny of the claim records, it was observed that :-

“As per consultation report dated 1.7.2015, the insured patient had past history of Hepatitis B, hence the opposite party called for the duration of Hepatitis B and past medical records for the same.”

The letter dated 20.7.2015  from the son of the insured patient submitted in response to the query raised by opposite party, it was informed that insured patient is Hepatitis B positive from the year 2007, which is prior to the inception of the medical insurance policy. Even the indoor case papers  state that the insured patient had past history of Diabetes Mellitus for the past 17 years, Hypertension for 15  years, which is not disclosed at the time of inception of the policy. Although the present admission of the insured patient is for treatment of fracture neck of femur left, but it was observed from the letter dated 20.7.2015 that the insured patient was Hepatitis B positive since 2007 which is prior  to the inception of the policy and at the time of inception of the policy, which is from 12.3.2015 to 11.3.2016, the insured had not disclosed the aforementioned medical history/health details of the insured person in the proposal form which amounts to misrepresentation /non disclosure of material facts. As per condition No. 7 of the policy, if there is any misrepresentation/non disclosure of material facts whether by the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of any claim, hence, the claim was repudiated and the same was duly communicated to the complainant vide letter dated 12.8.2015 and 31.8.2015. On merits facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid to prove the case Sh. Rajesh Bhatia,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1, copy of letter dated 12.8.2015 Ex.C-2, copy of policy schedule Ex.C-3, copy of advance premium receipt Ex.C-4, copy of welcome letter Ex.C-5, copy of terms and conditions Ex.C-6, copy of customer information sheet Ex.C-7, copies of letters Ex.C-8 and Ex.C-9, copy of letter dated 25.8.2015 Ex.C-10, copy of envelope Ex.C-11 and Ex.C-12, copy of letter dated 12.8.2015 Ex.C-13 and closed the evidence on behalf of the complainant. In additional evidence Sh.Rajesh Bhatia,Adv.counsel for the complainant has also tendered copies of medicine bills Ex.C-14 to Ex.C-39 and  closed the additional evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence Sh.S.S.Salaria,Adv.counsel for opposite parties No.1 & 2 tendered into evidence affidavit of Sh.Rajnish Kohli,Asstt.Vice President Ex.OP1,2/1, terms and conditions Ex.OP1,2/2, copy of proposal form Ex.OP1,2/3, copy of policy schedule Ex.OP1,2/4, copy of letter dated 19.3.2015 Ex.OP1,2/5, copy of discharge card dated 3.7.2015 Ex.OP1,2/6, copy of claim form Ex.OP1,2/7, copy of dischartge card dated 9.7.2015 Ex.OP1,2/8, copy of claim form dated 9.7.2015 Ex.OP1,2/9, copy of query on preauthorization dated 7.7.2015 Ex.OP1,2/10, copy of denial of pre authorization for cashless treatment dated 8.7.2015 Ex.OP1,2/11, copy of application by the complainant dated 20.7.2015 Ex.OP1,2/12, copy of repudiation of claim dated 12.8.2015 Ex.OP1,2/13, copy of letter for non declaration of pre existing disease dated 25.8.2015 Ex.OP1,2/14, copy of repudiation of claim dated 31.8.2015 Ex.OP1,2/15, copy of investigation reports Ex.OP1,2/16, copy of bills Ex.OP1,2/17 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 opposite parties No.1 & 2.

6.       On the basis of the evidence on record, ld. Counsel for opposite parties No. 1 & 2 has vehemently contended that it is an admitted fact that the complainant obtained a health Insurance Policy bearing  No.P/211111/01/2015/005193 in the name of his father namely Sunil Kapoor. The policy was valid w.e.f. 12.3.2015 to midnight of 11.3.2016. In this regard the complainant has admittedly paid a sum of Rs. 15000/- as premium. As per allegations made in the complaint on  29.5.2015 , the father of the complainant i.e. insured person slipped in bathroom and got a fracture . In this regard he remained admitted in Medi Star A Multispeciality Hospital Amritsar and in the hospital of Dr. Hardas Singh  Orthopaedic Hospital, Amritsar.  It is further case of the complainant that the insured was medically operated and he spent more than Rs. 85000/-   for the treatment of his father , which was borne by the present complainant. It is an admitted fact that  the opposite parties were duly informed regarding the incident and all the relevant documents were supplied by the complainant to the opposite parties within stipulated period. However, it is an admitted fact that mediclaim of the complainant was rejected by the opposite parties vide letter  dated 12.8.2015 on account of the fact that the complainant has concealed the factum of earlier disease suffered by him. Information regarding concealment of material fact was received from the complainant i.e. the  son of the insured  patient vide letter dated  20.7.2015  on the basis of the query made by the opposite parties , wherein it has been stated that as per your requirement Hepatitis B first diagnosis  in 2007. Since this information was sent by none else but Dinesh Kapoor himself goes to show that at the time of filling the proposal form, the insured did not disclose the previous ailment suffered by him and as such he was guilty of suppression of material information from the opposite parties. Had the insured/complainant intimated regarding the previous disease suffered by him, opposite parties might not have issued the insurance policy in dispute in favour of the insured. Since the insured was guilty of suppression of material facts/information from the opposite parties, as such the claim of the complainant had to be rejected vide repudiation letter Ex. OP1,2/13 on record.  When the factum came to the knowledge of the opposite parties that the policy has been  obtained by  concealment, the policy was cancelled . Even afterwards, the complainant was issued letter dated 5.10.2015 , copy whereof is Ex.OP1,2/19 vide which demand draft of policy amount of Rs. 15000/-  paid by the complainant as premium amount was refunded to the complainant . In this regard endorsement schedule dated 26.9.2015 and a letter dated 5.10.2015 were later on produced on record by additional evidence as Ex.OP1&2/18 and Ex.OP1&2/19 respectively. Since the complainant was guilty of getting the Insurance policy in dispute by committing fraud upon opposite parties No.1 & 2, therefore, the claim of the complainant has rightly been repudiated as well as the policy issued in favour of the complainant has also been cancelled. Since the opposite parties have already refunded the premium amount to the complainant, therefore, there exists no relationship of insurer and insured inter-se parties & no complaint u/s 12 & 13 of the Consumer Protection Act is maintainable. So far as law regarding with-holding of material information is concerned, reliance in this connection has been placed upon Satwant Kaur Sandhu Vs. New India Assurance Company Limitged 2009(4) CLT 398 (SC), wherein it has been held that when information on a specific aspect 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. The judgement supra preferred above is fully applicable to the facts of the present case and it is contended that the complaint is liable to be dismissed and the repudiation of the policy in dispute as well as repudiation of the claim as well as cancellation of the insurance policy in dispute has been made in accordance with law.

7.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that it is an admitted fact that complainant Dinesh Kapoor had obtained insurance policy in the name of his father Sunil Kapoor. It is also an admitted fact that Sunil Kapoor remained admitted for treatment w.e.f. 29.6.2015 to 3.7.2015 and from 6.7.2015 to 9.7.2015 in Dr. Hardas Singh Orthopaedic  Hospital, Amritsar and in Medi Star Multi Superspeciality Hospital, Amritsar respectively  and in the hospital where he was medically operated . The complainant spent more than of Rs. 85000/-  on his treatment and the bills/invoices regarding admission and expenses incurred by the complainant account for Ex.C-14 to Ex.C-39. It is further the case of the complainant that the claim for reimbursement of medical expenses was repudiated by the opposite parties vide repudiation letter, copy whereof is Ex.OP1,2/13. The ground for repudiating the claim has been that the life assured was suffering from Hepatitis B for 7 years and  the support on this point has been obtained from letter written  by complainant Dinesh Kapoor dated 20.7.2015 Ex.OP1,2/12 in response to the query made by opposite parties No. 1 & 2, wherein it is stated that “as per your requirement Hepatitis B first diagnosed in 2007. But further they forwarded to adhere to the remaining information given by Dinesh Kapoor in his letter wherein it is specifically mentioned that there is previous history of blood transfusion, previous surgeries, hospitalization in past. I am attaching the reports with this letter. Reports of Hepatitis B. As it is detected in 2007 and in 2009 as it is mentioned in the report Hepatitis B was not detected. Right now my father is not taking any medicines and ailment of Hepatitis B” which means and imply that Hepatitis B” detected in 2007 was fully cured in the year 2009 and there was no complaint of Hepatitis B afterwards. The patient was not getting any medicines . It means and imply that at the time of issuance of the Insurance policy in dispute, the insured was not suffering from any ailment known as Hepatitis B or even HTN or diabetes. Even otherwise also those alleged diseases have absolutely no nexus with the present treatment obtained by the complainant. In such circumstances it cannot be held  that the patient was guilty of suppressing the material facts. Reliance in this connection can be had on Santosh Kanwar-Petitioner Vs. Life Insurance Corporation of India-Respondents 2008(3) CPC 562 (NC), wherein it has been held that “Insured allegedly suffering from various ailments which were not disclosed in proposal form-Insurance Corporation repudiated the claim-District Forum allowed the complaint with the opinion that trival ailment such as pain in abdomen or muscles was not a serious ailment and not required to be noted at the time of taking the policy-Order was set-aside in appeal giving rise to present revision petition- It is settled law that unless suppression of disease is material, it should not be made a ground for repudiation of claim-Death of insured had no nexus with ailment-Repudiation of claim is unjustified” In this case the complainant got the treatment for fracture neck of femum left & as such the insured was not  obliged to provide any information regarding the previous ailment which was fully cured in 2007 & such an omission cannot be treated to be a concealment of material fact on the part of the complainant.

 8.      It has further been contended that  insured patient had past history of Diabetes Mellitus for the past 17 years  and hypertension for 15 years  which the complainant did not disclose at the time of inception of the policy. . Hypertension and Diabetes Mellitus are no longer the material diseases as millions of people in this country are afflicted with these ailments.  Reliance in this connection can be placed on Life Insurance  Corporation of India Vs. Sushma Sharma II(2008) CPJ 213 wherein Hon'ble Mr. Justice S.N. Aggarwal and Mrs. Jasbir Kapoor member have held in an appeal titled as in para 18 of the judgement as follows:-

         “So far as hypertension is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium. If  these diseases had been material Nand Lal insured would not have survived for 10 years after he started suffering from these medical problems. Like hypertension ,diabetes has also infected  a majority of the Indian population but the people who suffer from diabetes and continue managing it under the medical advice, they survive for number of years and none of these diseases is fatal and as discussed above, if these diseases had been material deceased Nand Lal insured would not have survived for 10 years.”.

9.       Further reliance can be had on Life Insurance Corporation of India Vs. Sudha Jain II(2007) CPJ 452, wherein Hon'ble Delhi State Consumer  Disputes Redressal Commission, New  Delhi have held  that maladies like diabetes, hypertensions being normal wear and tear of life, cannot be termed as concealment of pre-existing disease.

10.     From the aforesaid discussion, it transpires that the rightful claim of the complainant has been repudiated by the opposite parties without any reasonable cause which amounts to deficiency in service on the part of the opposite parties. Opposite parties could neither refund the insurance premium nor cancel  the insurance policy issued by them, as such they are under legal obligation to repay the amount of Rs. 70000/- (85000/- after adjusting Rs. 15000/- i.e.  the premium amount, already refunded) to the complainant. Complainant is also awarded compensation for mental torture, pain, agony and harassment to the extent of Rs. 5000/- while cost of litigation are assessed at Rs. 2000/-. Compliance of this order be made within a period of 30 days from the date of receipt of copy of this order ; failing which, awarded amount shall carry interest @ 9% p.a. from the date of passing of the order until full and final recovery. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated : 04.08.2016

/R/