By Sri. MOHANDASAN.K, PRESIDENT
Case of the complainant is as follows:-
1. The complainant is maintaining an account with the second opposite party for last 30 years and his account number is 1696101024196. Meanwhile on 10/02/2020 while the complainant approached the second opposite party, they insisted to avail insurance policy of the first opposite party vide policy No.120100/12586/2020/A016
466/PEO2052186/HDFC Ergo general insurance company dated 19/02/2020 for an amount of Rs.2 lakh. During that period the second opposite party has got corporate tie-up with the HDFC Ergo. The premium amount paid is Rs.4695.01. While subscribing the insurance policy the opposite parties had not insisted for any document. Moreover, the complainant being a premium customer of second opposite party, they prepared to reduce the premium amount of the complainant. It was also assured the medical reports, employment, age were not relevant for availing insurance coverage. The policy was commenced from 19/02/2020 and the same ends on 18/02/2021. During that period the complainant did not avail any insurance benefit.
2. On expiry of the policy the second opposite party called the complainant over phone and informed that the first opposite party had authorized the second opposite party to start a business as group Medicare insurance policy and thereby the complainant was instigated to avail health insurance policy. On 24/02/2021 the complainant approached the second opposite party and then the second opposite party along with third opposite party, the sales executive compelled to avail the health insurance policy and assured that they will allow the complainant to renew the insurance policy as in continuation of the previous policy. The first opposite party informed the complainant that group Medicare policy is suitable for the complainant since he is a senior citizen and while availing the said policy the insurance is not considering the age, employment, residence etc of the policy holder and all the benefit of the previous policy will be maintained and the policy is designed accordingly. On 04/03/2021 a person namely Allen called the complainant introducing that he is the sales executive of the third opposite party and thereby compelled to avail the insurance policy. Thereafter also the second and third opposite parties called the complainant to avail the insurance policy and ultimately on 05/03/2021 the policy was subscribed with NO.0238452957/00030271 and the policy amount was 2 lakh rupees. The premium amount collected for the same was Rs.4,854/- and the policy number was 1696101024196.
3. The complainant alleges he renewed his policy from the opposite party believing the words of second and third opposite parties. The complainant was under the impression that they are issuing a renewed policy as stated by the opposite parties. Moreover, the opposite parties had informed the complainant this particular policy is designed to its premium customers only. The opposite party had stated the policy holder need not submit previous medical reports, lab test reports regarding health conditions and also no details is required regarding employment or the place of residence. The complainant alleges the second opposite party issued the policy of HDFC Ergo general insurance company earlier and thereafter they got tie up with Tata AIG general insurance and accordingly the present policy issued to the complainant. The second opposite party acted as intermediary in the transaction.
4. Meanwhile the complainant was admitted before MVR cancer center and research institute for the treatment of pituitary adenoma from 03/08/2021 to 07/08/2021. The complainant undergone radio surgery and he spent an amount of Rs.1,50,000/- for the same. Subsequent to discharge from the hospital the complainant approached second and third opposite parties for availing insurance claim and thereafter the complainant submitted all the treatment records and medical bills to the first opposite party. On receipt of the documents the first opposite party registered the claim as No.2021052500086. Thereafter the complainant contacted the second and third opposite parties and they stated that the process of claim will take some time at least two months. On 20/11/2021 while he contacted the third opposite party, they assured that the claim will be processed within one month. On 02/12/2021 complainant contacted the second opposite party and then it was assured the immediate process of the claim. But on arriving at home, he received a letter from the first opposite party that the policy of the complainant stands terminated.
5. The complainant alleges that he availed the policy believing the word of second and third opposite parties, hence the act of the opposite parties amounts unfair trade practice which is defined under the consumer protection act 2019 as “deficiency of service “. The complainant alleges the opposite parties joined together to defeat the interest of complainant. Due to the act of opposite parties the complainant sustained huge financial loss and mental agony. The complainant prays for the treatment expense Rs.1,50,000/-along with interest at the rate of 9% per annum. The complainant also prays for a compensation of Rs.2 lakh on account of mental agony along with 2 lakh on account of deficiency of service and unfair trade practice. The complainant prayed refund of the premium amount Rs.4, 854/- along with appropriate other reliefs.
5. On admission of the complaint notice was issued to the opposite parties and the opposite parties entered appearance and filed version.
6. The first and third opposite parties filed joint version denying the entire averments and allegations in the complaint and contended that the complaint is not maintainable and is liable to be dismissed in limine.
7. The opposite parties admitted that the second opposite party is the intermediary and the master policy holder of the group Medicare policy No. 0238452957 issued by the opposite parties. The policy of the complainant was covered udder the master policy and cover under certificate N. 00030271 which was valid from 05/01/2021 to 04/01/2022. The complainant approached for the group Medicare policy from the opposite parties through the intermediary and paid the premium for the same. The complainant obtained all the information regarding the policy from the second opposite party and he was fully aware of the terms and conditions of the policy and took the policy with full confidence. There was no compulsion on the side of the opposite parties in taking the policy. The complainant is liable to disclose all his major existing disease before he entering in to the contract of Medicare policy with this opposite party. The medical information given by the complainant to the opposite parties before taking the policy is that the complainant had not suffered from nor taken treatment or was hospitalized for or have been recommended to take investigations / medication / surgery for undergone a surgery for cancer / kidney failure / stroke / heart disease / paralysis, any disease of major organ including but not limited to brain, heart, kidney, lungs, liver or any neurological disorder. Based up on the declaration and the information given by the complainant the opposite parties entered upon the contract of insurance and is issued the policy to the complainant in consonance with the principle of utmost good faith. The opposite parties have never promised the complainant that the previous policy issued by HDFC Ergo general insurance company which came to an end on 18/02/2021 will be renewed automatically through the policy issued by the opposite parties. It is submitted that they have not misrepresented any facts to the complainant at the time of taking the policy. The opposite parties have no connection with the policy issued by HDFC Ergo general insurance company. The opposite parties or the sales executives have not compelled the complainant to take the policy form the opposite parties.
8. It is submitted that the complainant had submitted a portability form and against such consent the enrolment form was received from the complainant wherein there was a declaration specifically mentioning that all information needs to be correctly provided and any incorrect or partially incorrect information would result in policy cancellation. On the basis of the declaration submitted at the time of proposal, the details as furnished by the complainant was captured in the policy schedule. The policy clearly sought the insured to ensure that all declarations made in the policy schedule were true and complete.
9. The opposite parties denied the averment that complainant took the policy only upon the representation given by the third and second opposite parties. The complainant had read and understood the terms and conditions of the policy issued by the opposite parties and entered in to a contract with the opposite parties. The further averments that the opposite parties have promised that the previous policy issued by HDFC Ergo general insurance company will be renewed automatically etc. are baseless. The premium for the policy was fixed upon the information given by the complainant at the time of taking the policy. Hence it is submitted that information given by the complainant is of vital importance in deciding the contract of insurance. It is submitted that if the information given by the complainant disclosed chronic diseases or major surgical procedures or hospitalization this opposite parties has the option to withdraw the contact of insurance without issuing the policy itself. The policy has been issued by the opposite parties based upon the principal of uberimaefidae, a fundamental breach of the same renders the policy void. Hence the opposite parties are not liable to pay any compensation to the complainant.
10. All the opposite parties admitted that they received a claim intimation for cashless benefit under the policy and on receipt of claim document it came to a conclusion that the complainant had suppressed medical information regarding his persisting ailment, gonadotrophic pituitary adenoma before taking the policy. It is submitted the complainant was well aware that he is having the disease pituitary adenoma before taking the policy from the opposite parties, hence the act of the complainant is violation of section 4 of general conditions of the policy and the cash less claim denied accordingly. The opposite parties terminated the policy by issuing the termination letter dated 20/11/2021.
11. The opposite parties submitted as per the document received from the complainant, he was admitted in meitra hospital on 08/04/2019 and discharged on 18/04/2019 and the procedure was done on 09/04/2019. The diagnosis of nonfunctioning of pituitary macro adenoma. In the meantime, the complainant was taken to Aster Medi city on 13/04/2019 for investigation. After investigation the impression was gonadotrophic pituitary adenoma with Ki-67 INDUEX 23 percent seller supra cellar region.
12. The opposite party denied the allegation of unfair trade practice or deficiency in service against the complainant so as to attract the provision of Consumer Protection Act. There was no delay in processing the claim and on perusal of medical records finally repudiated the claim and terminated the policy.
13. The opposite party submitted that they are not liable to compensate the complainant or to pay medical expenses to the complainant. The opposite parties entered in to contact with complainant for a Medicare insurance policy and the terms and conditions of the policy are binding upon the complainant as well as the opposite parties in equal terms. The complainant is an educated person and after fully knowing the terms and conditions of the policy of insurance has violated the fundamental terms of the policy and so not entitled for any compensation from the opposite parties. The opposite parties cited certain decisions of the apex court including Satwant Kaur Sandhu Vs New India Assurance company and Reliance life insurance company limited Vs Rekhaben Nareshbhai Rathod.
14. The second opposite party filed version but not within the time limit, hence recorded no version on behalf of second opposite party. Hence second opposite party set exparte
15. The complainant and first and third opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A8 and the documents on side of opposite parties one and three marked as Ext. B1 to B6. Ext. A1 is group assurance health plan-certificate of insurance with member ID No. EA 02119835 for the period 19/02/2020 to 18/02/2021 group policy No. 120100/12586/2020/AD16466
/PE02052186. Ext. A2 is copy of certificate of insurance issued by TATA AIG master policy N. 0238452957. Ext. A3 is receipt issued by group Medicare certificate of insurance in respect of policy No. 0238452957/ total premium 4,854/- rupees. Ext. A4 is copy of group Medicare certificate insurance/ letter for customer issued in favor of Mr. Muhamemed Basheer PV with 7 pages. Ext. A5 is copy of cancelled cheque of south Indian bank account No.0500053000003321/Muhamemd Baher PV along with claim form. Ext. A6 is copy of postal receipts dated 20/08/2021. Ext. A7 is copy of termination letter issued by the TATA AIG to Muhammed basher PV in respect policy No.0238452957/00030271. Ext. A8 is copy of bill issued from MVR cancer center and research institute along with treatment record. Ext. B1 is copy of certificate of insurance issued by TATA AIG master policy No. 0238452957. Ext.B2 is copy of bill issued from MVR cancer center and research institute. Dated 07/08/2021. Ext. B3 is copy of certificate issued from department of radiation oncology. Ext. B4 is copy of letter regarding termination of policy dated 25/03/2022. Ext. B5 is copy of portability form dated 01/03/2021. Ext. B6 copy of enrollment form dated 01/03/2021.
16. Heard complainant and opposite parties 1 and 3, perused affidavit and documents. The following points arise for consideration:-
- Whether there is deficiency in service and unfair trade practice on the part of opposite parties?
- Relief and cost?
17. Point No.1 & 2
The case of the complainant is that he is an account holder of the second opposite party and on instigation of the second opposite party, the complainant availed insurance policy of the first opposite party. While the policy was in force the complainant was undergone treatment before MVR cancer Center and research institute for which he met an expense around Rs. 1,50,000/- . While he approached the opposite party for the insurance coverage the opposite party denied the same. The allegation of the complainant is that he availed the policy of the opposite party at the instigation of second and third opposite parties. While he was availing the policy the opposite parties 2 and 3 had assured that he will get all the benefits of his existing insurance policy with HDFC Ergo general insurance company and he had received information from the side of opposite parties that the complainant need not submit medical reports, lab reports or other details Including employment and details of residence. But subsequent to the submission of claim form the opposite party denied the insurance claim holding that the complainant suppressed material facts while subscribing the insurance policy and so approached this commission seeking redressal of his grievance.
18. The complainant produced Ext. A1 to A8 to establish the case of the complainant. It can be seen that there is no dispute with respect to the insurance policy and the treatment undergone by the complainant. But the opposite party produced Ext.B1 to B6 to establish the contention of the opposite parties. Ext. A7 and Ext. B4 are one and same document, which is termination letter of the opposite party issued in favor of the complainant on 20/11/2021 and 25/03/2022 respectively. Ext. A7 and B4 the termination letter of the policy reveals the reason for denial of insurance protection to the complainant.
19. The first and third opposite parties denied the allegation of the complainant that the complainant availed insurance policy due to instigation of the opposite parties. The contention of the opposite parties is that the insurance policy was subscribed by the complainant through the second opposite party on furnishing the details in the proposal form and after fully understating the terms and conditions of the policy. The contention of the opposite party is that the complainant did not disclose all his major existing diseases to the opposite parties at the time of availing the policy. The policy was issued on the basis of disclosure made by the complainant during subscribing the policy. The insurance is a contract based on the principal of uberimafide, a fundamental breach of the same renders the policy void, hence the opposite parties are not liable to pay any compensation to the complainant.
20. In this complaint the opposite parties produced Ext. B2 and B3 regarding the pre-existing ailment and treatment undergone by the policy holder. The documents Ext. B2 and B3 reveals that the complainant was suffering from some serious ailments for which he was undergone in patient treatment before MVR cancer center and research institute . So the contention of the opposite party regarding none disclosure of pre-existing disease stands proved through the ext. B2 and B3 documents. The contention of the complainant that the opposite parties 2 and 3 instigated the complainant to avail the insurance policy stating that no medical checkup is required and no other relevant documents are not necessary etc. are not proved by the complainant. On the other hand the opposite party specifically contended that the premium for the policy is fixed upon the information given by the complainant at the time of taking the policy. If the information given by the complainant disclosed chronic diseases or major surgical procedures or hospitalization the opposite parties have the option to withdraw from the contract of insurance without issuing the policy itself. Hence, we find that the submission of the opposite parties one and three is valid and so there is sufficient reason to repudiate the claim and for cancellation of the insurance policy. The commission do not find deficiency in service on the part of opposite parties as per documents.
In the light of above facts circumstances the consideration of second point do not arise and complaint stands dismissed.
Dated this 27th day of February, 2024.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A8
Ext.A1: Group assured health certificate of insurance member ID No. EA 02119835 for
the period 19/02/2020 to 18/02/2021 group policy No. 120100/12586/2020/
AD16466/PE02052186.
Ext.A2: Copy of certificate of insurance issued by TATA AIG master policy N.
0238452957.
Ext A3: Receipt issued by group Medicare certificate of insurance in respect of policy
No. 0238452957/ total premium 4,854/- rupees.
Ext A4 : Copy of group Medicare certificate insurance/ letter for customer issued
infavour of Mr. Muhamemd Basheer PV with 7 pages.
Ext A5 : Copy of cancelled cheque of south Indian bank account
No.0500053000003321/Muhamemd Baher PV along with claim form
Ext.A6: Copy of postal receipts dated 20/08/2021.
Ext.A7: Copy of termination letter issued by the TATA AIG to Muhammed basher
PV in respect policy No.0238452957/00030271.
Ext.A8: Copy of bill issued from MVR cancer center and research institute along with
treatment record.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party : Ext. B1 to B 6
Ext.B1 : Copy of certificate of insurance issued by TATA AIG maser policy N.
0238452957.
Ext.B2 : Copy of bill issued from MVR cancer center and research institute.
Ext.B3 : Copy of certificate issued from department radiation oncology. E
Ext.B4 : Copy of letter regarding termination of policy dated 25/03/2022.
Ext.B5 : Copy of portability form dated 01/03/2021.
Ext.A6: Copy of enrollment form dated 01/03/2021.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
