1.      Heard Mr. S.M. Tripathi, Advocate, for the appellant and Mr. Nikhlesh Jain, Authorised Representative, for respondent-1.

2.      The office has reported 75 days delay, in filing the appeal. The appellant has filed an application (IA No. 3834 of 2012) for condonation of delay. In view of the order of Supreme Court passed in Suo Moto Writ Petition No. 3 of 2020, delay in filing the appeal is condoned.

3.      This appeal has been filed against the order of State Consumer Disputes Redressal Commission Delhi, dated 03.02.2012, passed in Consumer Complaint No. 1094 of 2019, whereby, the complaint was allowed and the appellant was directed to reimburse the medical claim of the complainant of Rs.16,09,336/- with interest @ 6% per annum from the date of repudiation till the date of payment. Respondents-2 to 6 were held as not liable.

4.      Vineet Khanna (respondent-1) filed Consumer Complaint No. 1094 of 2019, for directing the opposite parties, jointly or severally to pay (i) Rs.16,09,336/- along with interest @ 24% p.a., (ii) Rs.10,00,000/- for physical and mental harassment and (iii) Rs.1,55,000/- as cost of litigation and (iv) to pass such other order, which the Commission deems fit and proper under the circumstances of the case. It has been stated that Vivek Khanna (the deceased Insured), (the brother of the complainant), obtained a Mediclaim Insurance Policy from Appollo Munich Health Insurance in the year 2013-14, which was renewed up to 2016-2017. Vivek Khanna obtained ported Mediclaim Insurance Policy from Star Health & Allied Insurance Company Ltd. (the appellant), on 27.02.2017, i.e. Policy No. P/161118/01/2018/018520, which was valid till midnight of 26.02.2018. This policy was renewed on 27.02.2019 vide Endorsement No. P/161118/01/2019/022545, by the appellant, for coverage of Rs.25,00,000/-, which was valid from 27.02.2019 to midnight 26.02.2020. The mother of Vivek Khanna expired on 02.11.2017, thereafter, he came in depression. In the morning of 06.09.2019, Vivek Khanna became unconscious. He was immediately admitted to Columbia Asia Hospital, for treatment, where the doctors initially diagnosed “Neuroleptic Malignant Syndrome due to Anti Psychotic Drug Sepsis”. Later on, the doctors diagnosed “Neuroleptic Malignant Syndrome due to Anti Psychotic Drug Rhabdomyolysis Aki Ventilator Associated Trachetis”. The complainant was not satisfied with the treatment and asked the doctor to discharge the patient for treatment in higher centre. Vivek Khanna was discharged from Columbia Asia Hospital on 17.09.2019 and admitted to Sir Ganga Ram Hospital on the same day, where he remained admitted till 25.09.2019. His condition was not improved and the family was not in condition to bear the medical expenses, therefore, he was brought to home, where he expired on 27.09.2019. While discharging from Columbia Asia Hospital, Dr. Piyush Goel prepared Discharge Summary, in which “known case of Schizophrenia” was mentioned. The complainant, immediately, protested and told that Vivek Khanna was suffering from depression and not Schizophrenia, then Dr. Piyush Goel told that it was medical term for the depression. After admission of Vivek Khanna on 06.09.2019, Columbia Asia Hospital sent the requisite papers to Star Health & Allied Insurance Company Ltd., for granting approval, for cashless treatment, which was refused. Columbia Asia Hospital charged  Rs.10,61,867/- for treatment  from  06.09.2019 to 17.09.2019, which was paid by the complainant. Sir Ganga Ram Hospital charged Rs.4,74,357/- for treatment from 17.09.2019 to 25.09.2019, which was paid by the complainant. The complainant also purchased medicines from market of Rs.34,816/- during this period. The complainant lodged medical claim with Insurer (the appellant) and submitted all the requisite papers, which was repudiated by the appellant through letter dated 04.11.2019, on the ground that at the time of porting the policy, Vivek Khanna had not disclosed his disease, although he was suffering from “Schizophrenia” for last 20 years, which was proved from Indoor Case record, submitted along with medical claim. Along with letter dated 04.11.2019, a copy of handwritten letter of Dr. Manjeet Nath Das dated 17.09.2019 was also send, in which he had mentioned that “As history given by the patient relatives, patient was on mild medication for last 20 years and since last two years, after his mother passed away, his mental condition deteriorated and he was started on high and multiple dose of Anti Psychotic Medication”. It has been stated that neither in Case Summary nor in Discharge Summary of Columbia Asia Hospital or of Sir Ganga Ram Hospital, this fact was noted that the patient was on mild medication, for last 20 years. The complainant did not supply the alleged handwritten paper along with medical claim. It might have been obtained by the Insurer from Dr. Manjeet Nath Das, either under some pressure or greed. This letter was contrary to the hospital record and no reliance could be placed on it. Ported Mediclaim Insurance Policy was issued by the appellant, in continuation of Mediclaim Insurance Policy issued by Apollo Munich Health Insurance, in the year 2013. Vivek Khanna developed depression, after death of his mother on 02.11.2017. Prior to it, he was not suffering from any disease as such there was no concealment of the disease at the time of obtaining the policy. Repudiation of the claim was illegal. On these allegations, the complaint was filed on 12.12.2019.                

5.      The Insurer contested the case and filed its written reply on 06.03.2020, in which the facts of Mediclaim Insurance Policy of Vivek Khanna since 2013 from Appolo Munich Health Insurance and ported Star Comprehensive Insurance Policy from the appellant since 27.02.2017, which was valid till 26.02.2020, treatment of Vivek Khanna in Columbia Asia Hospital from 06.09.2019 to 17.09.2019 and in Sir Ganga Ram Hospital from 17.09.2019 to 25.09.2019 have not been denied. It has been stated that Columbia Asia Hospital sent a request for granting approval for cashless treatment of Vivek Khanna, then, the Insurer raised certain queries. In relation to the queries, some documents were supplied by the hospital, from which it was revealed that Vivek Khanna was suffering from Schizophrenia for last 20 years, i.e. prior to inception of first policy. There were specific columns from clauses-4 to 8 in the proposal form, relating to information of various diseases, which all were replied in negative. Material fact of the disease Schizophrenia was concealed and the policy was obtained on misrepresentation. Therefore, approval for cashless treatment was rejected on 12.09.2019. The contract of insurance is a contract based on utmost good faith. Due to concealment of the disease, the policy vitiated as such insurance claim was repudiated on 04.11.2019. The complainant was not a nominee in the Policy as such no cause of action has arisen to him. In any case, the complainant has not arrayed all the heirs of Vivek Khanna as the complainants as such the complaint was liable to be dismissed.   

6.      The complainant filed Rejoinder Reply on 01.12.2020, in which the facts contrary to the complaint were denied and the facts stated in the complaint were reiterated. When approval for cashless treatment was sent from Columbia Asia Hospital, then, Dr. Nilisha Rajoria visited hospital on 09.09.2019. After inquiry, she prepared a report, in which she has specifically mentioned “Previous Surgery/Hospitalisation-No”. Pre-existing disease as defined in the Terms and Condition of the Policy means “any condition, ailment or injury or related condition(s) for whch there were signs or symptoms, and/or were diagnosed and/or for which medical advice/treatment was received within 48 months prior to first policy issued by the Insurer and renewed continuously thereafter.” Vivek Khanna was absolutely fit on the date of obtaining policy from the appellant. The complainant filed his Affidavit of Evidence and documentary evidence. The appellant filed an Affidavit of Evidence of Sh. Rajeev Jain, Chief Manager and documentary Evidence. Other opposite parties filed their written reply and stated that they had no any liability for reimbursement of medical claim nor discharged any role in passing repudiation letter, as such, there was no cause of action against them.

7.      State Commission, after hearing the parties, by judgment dated 03.02.2021 found that in Discharge Summary of Columbia Asia Hospital it was noted that “ Known case of Schizophrenia”. It was not noted that “the patient was on mild medication for last 20 years”. In the alleged letter of Dr. Manjeet Nath Das, the name of the relative, who had informed that the patient was suffering from Schizophrenia and was on mild medication for last 20 years, was not disclosed. It was vague letter and no reliance can be place upon it. The disease Schizophrenia was developed after, obtaining Insurance Policy. In any case, this was a ported policy, in continuation of earlier policy which was obtained in 2013. As the claim was made of the treatment in September, 2019 as such exclusion clause of the policy was not applicable as 4 years had expired. On these findings, State Commission allowed the complaint and passed order as stated above. Hence this appeal has been filed.   

8.      The counsel for the Insurer relying upon judgments of Supreme Court in United India Insurance Corporation Vs. MKJ Corporation, (1996) 6 SCC 428, Life Insurance Corporation of India Vs. Asha Goel, (2001) 2 SCC 160,  Satwant Kumar Sandhu Vs. New India Assurance Company Ltd., (2009) 8 SCC 316 and Reliance Life Insurance Company Ltd. Vs. Rekhaben Nareshbhai Rathod, (2019) 6 SCC 175, submitted that it has been consistently held that suppression/non-disclosure/misrepresentation as to material fact in proposal form of the Insured, vitiate the policy and enable the Insurer to repudiate the claim. Dr. Manjeet Nath Das, who was a treating doctor of Vivek Khanna in Columbia Asia Hospital, in his letter dated 17.09.2019 has clearly mentioned that Vivek Khanna was on mild medication for last 20 years. The proposal form for obtaining insurance policy from the appellant was filled up by Vivek Khanna, in 2017. This form contained clauses-4 to 8 regarding information of previous diseases, which has been replied in negative. Therefore, there was concealment of the disease Schezophrenia at the time of obtaining policy. The policy therefore vitiated due to concealment of disease. The appellant has rightly repudiated the claim. The complaint was filed by Vineet Khanna, wrongly claiming himself as the nominee. He had neither disclosed the legal heirs of Vivek Khanna nor arrayed them as the complainants as such the complaint was not maintainable. These points were not appropriately dealt with by the State Commission.

9.      I have considered the arguments of the counsel for the parties and examined the record. In the Insurance Policy (page-74 of the paper-book) obtained from the appellant, Smt. Pratima (the mother of the deceased Insured) was named as the nominee. Smt. Pratima Khanna (the mother of the deceased Insured) died on 02.11.2017. In paragraph-2 of the complaint, Vineet Khanna has disclosed himself to be brother and nominee of the deceased Insured. Under Hindu Succession Act, 1956, the brother is heir of second category. The appellant has not disclosed that Vivek Khanna left behind him any heir of first category. In the absence of any heir of first category, Vineet Khanna will be the heir. As such, there is no substance in this arguments that the complaint as filed by Vineet Khanna was not maintainable. In any case, this may be a dispute between the heirs, on this ground, the complaint cannot be dismissed. The claim was not repudiated on this ground. It is well settled that the authority cannot permitted to raise a different ground, which was not a ground for passing the impugned order. Supreme Court in Galada Power and Telecommunication Ltd. Vs. United Insurance Company Ltd., (2016) 14 SCC 161, has held that the Insurer cannot be permitted to raise the grounds other than a ground taken for repudiation of the claim, in the complaint.

10.    There is no dispute regarding the proposition of law that the contract of Insurance is a contract of uberrima fides and non-disclosure of any material fact vitiates the policy. According to the complainant, Vivek Khanna, the deceased Insured, was not suffering from any disease prior to death of his mother on 02.11.2017. After death of the mother, he came in depression, i.e. during continuance of the policy. Vivek Khanna obtained initial Mediclaim Insurance Policy from Appollo Munich Health Insurance in February, 2013 and ported Mediclaim Insurance Policy from the appellant on 27.02.2017. Both these policies were obtained prior to the death of the mother. At that time of obtaining these policies, Vivek Khanna was not suffering from any disease, as such, in the proposal form, the columns relating to information of the diseases were replied in negative. Apart from handwritten letter of Dr. Manjeet Nath Das dated 17.09.2019, there is no evidence of the record to prove that Vivek Khanna was suffering from any disease at the time of obtaining  policy.

11.    In the repudiation letter dated 04.11.2019, it has been mentioned that letter of Dr. Manjeet Nath Das dated 17.09.2019,  was supplied by the complainant along with the papers submitted for reimbursement of medical claim. This fact has been denied in the complaint. Then in written reply it has been stated that when Columbia Asia Hospital made request for approval of cashless treatment, then queries were made then the hospital had supplied this letter. In this letter it has been written that “As history given by the patient relatives, patient was on mild medication for last 20 years and since last two years, after his mother passed away, his mental condition deteriorated and he was started on high and multiple dose of Anti Psychotic Medication”.

12.    Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulation, 2002, (published in Gazette of India dated 06.04.2002) provides mandatory provision for the hospitals/ doctors to record/maintain Case Summary and Discharge Summary. Neither in Case Summary nor in Discharge Summary of Columbia Asia Hospital or of Sir Ganga Ram Hospital, this fact was noted that the patient was on mild medication, for last 20 years. This handwritten letter dated 17.09.2019 was contrary to the hospital record. Dr. Manjeet Nath Das was arrayed as opposite party-5 in the complaint. He did not dare to file his Affidavit of Evidence, admitting execution of this letter and explaining the circumstance, under which he had written this letter, contrary to the hospital record, maintained in discharge of mandatory provision of law. In the absence of personal affidavit of Dr. Manjeet Nath Das, no reliance can be placed on the letter dated 17.09.2019, in preference of the hospital records, which are maintained in discharge mandatory provisions of law. As such, it is not proved that the deceased Insured had concealed about his disease, in the proposal form. 

 13.   Section 45 of Insurance Act, 1938 provides two year limitation for questioning the policy on the ground of suppression/non-disclosure/misrepresentation of the fact at the time of obtaining policy. The appellant issued Ported Mediclaim Insurance Policy on 27.02.2017, in continuation of Mediclaim Insurance Policy issued by Apollo Munich Health Insurance, in the year 2013. Even from 27.02.2017, the period of two years has expired. The policy was questioned for the first time in repudiation letter dated 04.11.2019.

.                                               O R D E R

In view of the aforesaid discussion, the appeal has no merit and is dismissed.