Order-19.
Date-21/06/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainants’ case, in short, is that complainant no.1 had a mediclaim policy with OP insurance company being policy no.30291154201602 valid from 22-01-2016 to 21-01-2017 with a sum insured of Rs.35,00,000/-. The policy was taken for himself and his family members namely Gouri Sankar Agarwal, complainant No.1 Vipasha Agarwal (daughter of complainant no.1, Viplove Agarwal (son of the complainant no.1 and Anita Agarwal, complainant no.2. In the policy the complaint which was opted by the complainant no.1 was Health Companion Family first 005.0 Lacs plus 15,00,000/- as floater. Complainant no.1 was also having a continuous mediclaim policy with United India Insurance Company Ltd. from 2004-05 to 2013-14. In 2014 the complainant no.1 took mediclaim policy with the OP Company encouraged by the agent of the OP for better service and accordingly applied for continuous benefit as an old policy like as per IRDA Rules through portability. The said policy was shifted to Max Bupa Health Insurance Company Ltd. through portal having continuous effect from 2004-05. On 07-05-2016 complainant no.2 was advised by Dr. M.S. Nadkarni of Kokilaben Dhirubhai Ambani Hospital and Medical Research Institute to undergo a breast surgery on 09-05-2016. Complainant no.1 on 07-05-21016 requested the OP to provide preauthorization/cashless benefit for medical expenses of complainant no.2. OP through letter dated 07-05-2016 required the said institute for some documents to sanction the pre-authorization/cashless benefit and the said medical institute supplied all the necessary documents on behalf of the complainant. On 08-05-2016 OP demanded for some additional documents for the said research institute and such documents were also supplied to the OP. The OP approved the preauthorization/cashless benefit and informed the same to Kokilaben Dhirubhai Ambani Hospital and Medical Research Institute vide letter dated 08-05-2017. OP2 was admitted in the said hospital on 08-05-2016. On 10-05-2016 the medical expenditure bills for the treatment of complainant no.2 were sent to the insurance company. OP demanded some documents from the said medical research institute on 10-05-2016. To the utter surprise of the complainants, OP with mala fide intention withdrew the approval of the cashless facility through letter dated 11-05-2016. The OP also cancelled the mediclaim policy of the complainant through letter dated 13-05-2016 on the ground that at the time of processing the claim of the complainant no.1 it had been noticed by the OP that there had been non-disclosure of pre-existing illness of complainant no.2 that was right breast surgery 27 years back, hypothyroidism 17 to 18 years according to the policy conditions Clause 3. It is stated by the complainant that this Exclusion Clause is not applicable to complainant no.1 for reimbursement to medical expenses as the policy is an old one and continuous one since 2004-05 with United India Insurance Company Ltd. Complainant no.1 demanded claim from the OP through letter dated 20-05-2016 and complainant no.1 also submitted claim form of Rs.4,44,362-98 along with all relevant documents for reimbursement of the medical expenses but the said claim was repudiated by the OP vide letter dated 17-06-2016. Complainant no.2 was again admitted to Amri Hospital which was intimated to OP through email dated 13-06-2016 and in reply OP sent an email on 14-06-2016 thereby cancelling the mediclaim policy under Clause 3 and 4. Complainant no.1 submitted on 23-06-2016 claim of Rs.45,658/- through letter dated 17-06-2016 which was also repudiated by OP vide letter dated 28-06-2016. The complainant no.2 also submitted with the OP claim of Rs.24,197/- on 30-06-2016 through letter dated 27-06-2016 and on 08-07-2016 claim of Rs.26,700/- which have not been paid by the OPs. It is stated that OP rejected all the claims of the complainant on the plea that the disease of the complainant no.2 was a preexisting one and the same was not disclosed by the complainants and at the time of portal. Complainant no.1 issued a legal notice on 19-07-2016 demanding a total sum of Rs.5,40,907-98 as medical expenses for hospitalization period from 08-05-2016 to 14-05-2016. The OPs did not pay any heed to it. It is stated that the complainant after issuance of legal notice further submitted on 19-07-2016 a claim of Rs.20,787/- vide letter dated 18-07-2016 and also on 09-08-2016 claimed of Rs.25,474/-, 09-08-2016 claimed of Rs.26,252-66, 12-08-2016 claimed of Rs.9017-60 and 19-08-2016 claimed of Rs.23,184/-. Subsequently, on 12-09-2016 a claim of Rs.5,29,559-65 also submitted by the complainant no.2 through speed post dated 12-09-2016 but none of the claims have been paid by the OPs. It is stated that there is deficiency on the part of the OPs and the OP has illegally cancelled the mediclaim policy. It is also stated that the mediclaim policy was also cancelled on 28-06-2016. Hence, this case.
OP has contested the case in filing written version contending, inter alia, that the petition of complaint is not maintainable in its present form at all and compliant has been filed with oblique motive in order to extract money from the OP without any legitimate basis. It is stated that the complainant had obtained a family medicare policy from United India Insurance Company Ltd. In the insurance business the concept of portability of insurance policy is prevalent whereby the insured person can opt for a different insurance policy in place and instead of erstwhile insurance company having the same insurance policy. In 2014 the complainant applied for portability of such family health insurance policy. The OP agreed to provide policy to the complainant. The policy was valid from 22-01-2014 to 21-01-2015. The aforementioned policy was renewed by the complainant in the year 2015 and policy bearing no.30291154201501 was issued by the OP to the complainant. According to the terms of the policy the insured must disclose any previous ailment which he or she might suffer or has suffered and non-disclosure of such information shall entail repudiation of such insurance claim of the insured. It is stated that the complainant did not review or disclose the past medical history in Clause 6 and 7 of coverage selection. Section1 of the policy proposal form. A pre-authorization request of cashless treatment of complainant no.2 on 07-05-2016 was sent by Kokilaben Dhirubhai Ambani Hospital and Medical Research Institute. The insured was provisionally diagnosed with right breast cancer. The OP subsequently, made additional information request vide letter dated 07-05-2016, 08-05-2016 and 10-05-2016. After receiving such document the OP initially authorized the preauthorization request. OP also appointed an investigator to ascertain the facts of the case. During such investigation it was revealed that the complainant no.2 had past medical history of breast surgery 27 years ago and also had hypothyroidism since 17 to 18 years. In view of such non-disclosure at the time of taking the policy the preauthorization request of the complainant was rejected vide letter dated 11-05-2016. The complainant, thereafter, filed a claim of Rs.4,44,362/- which was received by OP on 09-06-2016. The claim was rejected by OP as per Clause of non-disclosure of material fact of the policy terms and conditions. The complainant no.1 also filed a claim of Rs.45,648/- with the OP for the treatment received during hospitalization on 27-05-2016 which was also rejected on self-same ground. The complainant no.1 also filed a claim of Rs.24,197/- for hospitalization at Amri Hospital for treatment of breast carcinoma but claim was rejected by the OP. The complainant also filed a claim of Rs.26,700/- with OP on 18-07-2016 for the treatment during hospitalization at Amri Hospital, thereafter, complainant no.1 also filed another claim of Rs.20,787/- for hospitalization at Amri Hospital. The claims were rejected by OP. It is denied that OP rejected the claim or the claims falsely. It is stated that the claim of the complainant was rejected for non-disclosure of past medical history. It is stated that medical insurance policy is a policy of good faith. The complainants have admitted that she had a surgery 27 years back. It is also stated that research has shown that taking medicine for hypothyroidism has high risk of breast cancer. It is stated that complainant has tried to make up the insurance claim on a baseless contention which is not also maintainable. It is stated that instant proceeding should be dismissed with cost.
Points for Decision
- Whether OP is deficient in rendering services to the complainant?
- Whether the complainant suppressed the material fact regarding history of breast tumor at the time of availing the policy from the OP or erstwhile insurer?
- Whether the claim of the complainant is barred for non-disclosure of medical history at the time of taking the policy?
- Whether the OP has repudiated the claim illegally or capriciously?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record i.e. Xerox copy of Max Bupa Policy and its terms and condition, Xerox copy of policy document, Xerox copy of proposal form duly filled in by the complainant, Xerox copies of medical papers, Xerox copy of discharge summary of Kokilaben Dhirubhai Ambani Hospital and Medical Research Institute, Xerox copy of Max Bupa investigation report and other documents on record.
It appears that the complainant had obtained a family medical policy from United India Insurance Company Ltd. initially. The complainant subsequently opted the facility of portability of health insurance with the OP. The mediclaim policy with the OP was valid from 22-01-2016 to 21-01-2017 with a sum insured of Rs.35 lakhs. On 07-05-2016 the complainant no.2 was advised by Dr. M.S. Nadkarni of Kokilaben Dhirubhai Ambani Hospital and Medical Research Institute to undergo a breast surgery of 09-05-2016. The complainant no.1 on 07-05-2016 requested the OP to provide preauthorization/cashless benefit for medical expenses for hospitalization of complainant no.2. Insurance Company received pre-authorization request for right breast carcinoma of complainant no.2. The OP sought for additional information and after getting such details it was revealed that the complainant no.2 had breast surgery related to such tumor and has been suffering from hypothyroidism in 17 to 18 years. It is stated that cancer is a recurring disease and its recurrence cannot be ruled out even if the interregnum is long. It is also stated by the OP that hypothyroidism is also a disease which requires regular medication and both the facts were suppressed by the complainant at the time of taking the policy from the OP. In view of such non-disclosure at the time of taking the policy the pre-authorization request of the complainant no.1 was rejected. Thereafter, the complainant no.1 filed a claim with the OP which was rejected by the OP on 08-06-2016. The policy of the complainant was also repudiated vide letter dated 13-05-2016.
We find that the claim for reimbursement of the medical expenses filed by the complainant was rejected as the same claim is beyond the purview of the terms and condition of the policy. We find that the complainant took the policy but failed to disclose that the complainant no.2 underwent breast surgery previously or she was suffering from hypothyroidism for the last 18 years. We also find that the one of the terms of the policy is that the insured at the time of entering into policy must disclose any previous ailment which he or she may suffer or had suffered. We find that complainant no.1 did not disclose the material fact that complainant no.2 had past medical history of breast tumor and had breast surgery relating to such tumor. We also find that the present ailment is related to a pre-existing disease which was not disclosed to the OP, good faith is the tenet of the insurance policy. Contract of Insurance is Contract of uberrima fides, i.e. a Contract of Good Faith. There is requirement of uberrima fides i.e. good faith on the part of the insured. We find that the complainant obtained the insurance policy by not disclosing and/or suppressing material information which would have influenced the issuance of the policy in favour of the complainant. We find that there are Clauses 6 and 7 which require the complainant to make full and frank disclosure of best medical history. Answers given by the proposer therein are all ‘no’. All the questions as we find answered in negative by the insured regarding medical history. We find that the complainant is liable for non-disclosure of the facts and medical history. The repudiation of the claim and cancellation of the mediclaim policy by the OP cannot be said to be arbitrarily. Complainants suppressed the past medical history of complainant no.2 in Clause 6 (medical history) and Clause 7 (additional information) of coverage selection . Section 1 of the policy proposal form.
We think that the claim of the complainant was validly repudiated on such ground.
[Perused the decision reported in Oriental Insurance Co. Ltd. vs. Sony Cheriyam reported in AIR 1999 SC 3252, Vikram Greenwich (I) Ltd. vs. New India Assurance Co. Ltd., reported in 2009 4 MLJ 811 (SC), Harjundar Kaur Dadiala vs. National Insurance Company Ltd., & anr on 06-05-2016, Ajit Santok Chand Surana vs. National Insurance Co. Ltd., on 04-05-2017, Satwant Kaur Sandhu vs. New India Assurance Co. Ltd., Sr. Divisional Manager, LIC of India vs. Gangama and Anr. In First Appeal 797 of 1994 Manju Bhattacharya vs. Senior Manager LIC in Revision Petition No.1367 of 2014 dated 28-11-2014 and cited from the side of OP.]
Consequently, the case merits no success.
Hence,
Ordered
That the instant case be and the same is dismissed on contest against the OPs.
We make no order as to cost.
