State Consumer Disputes Redressal Commission
Sandeep Kumar vs Max Bupa Health Insurance Company ... on 16 October, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.580 of 2022
Date of institution : 12.07.2022
Date of Reserve : 18.09.2024
Date of Decision : 16.10.2024
Sandeep Kumar S/o Sh.Joginder Sharma, R/o Ward No.9, Village
Saoor Khurd, P.O. Samoor Kalan, Tehsil Bangan, No.56/11/3, NR
Market, Una Himachal Pradesh.
.......Appellant/Complainant
Versus
1. Max Bupa Health Insurance Company Limited having its Corporate
Office at Block B1/1-2, Mohan Cooperative Industrial Estate,
Mathura Road, New Delhi-110044 through Sh.Ashish Malhotra,
Managing Director and Chief Executive Officer (CEO).
2. Max Bupa Health Insurance Company Limited having its Registered
Office at Max House, 1 Doctor Jha Marg, Okhla, New Delhi-110020
through Ms.Partha Chakraborty Vice President-Claims
Management.
3. Max Bupa Health Insurance Company Limited, having its Branch
Office at Plot No.88, 2nd Floor, Kunal Tower, Mall Road, Opp. Axis
Bank, Ludhiana, 141001 through Sh.Hitesh Aggarwal, Senior
Branch Manager.
.......Respondents/Opposite Parties
First Appeal under Section 41 of the
Consumer Protection Act, 2019
against the Order dated 22.04.2022
passed by the District Consumer
Disputes Redressal Commission,
Ludhiana in CC No.302 of 2019.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No F.A.No.580 of 2022 2 Present :-
For the appellant : Sh.Anmol Jindal, Advocate
For the respondents : Ms.Monika Thatai, Advocate
SIMARJOT KAUR, MEMBER
This Appeal has been filed by the Appellant/Complainant under Section 41 of the Consumer Protection Act, 2019 (in short 'The Act') being aggrieved by the impugned Order dated 22.04.2022 passed by the District Consumer Disputes Redressal Commission, Ludhiana (in short 'the District Commission') whereby the Complaint of the Complainant had been dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as had been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the Complainant before the District Commission are that the Complainant had obtained/purchased a Health Insurance Policy No.30781419201800 from the OP No.1 w.e.f. 22.06.2018 to 21.06.2019. A premium of Rs.9656/- was paid by him. During the validation period of the policy, the Complainant was admitted in Dayanand Medical College & Hospital, Ludhiana on 20.01.2019 as he was diagnosed with problem in 'Left Testicular Mass with swelling in Left Scrotum' for 3-4 days. He had intimated the OP No.1 regarding the same. The cashless treatment of the Complainant was approved by OP No.1 on 29.01.2019. He was discharged from the hospital on 05.02.2019. He had incurred an amount of Rs.1,22,372/- on his medical treatment. Thereafter, he had requested the OPs to reimburse his medical claim but the same was rejected by OP No.2. The Complainant had made several representations/requests to the OPs F.A.No.580 of 2022 3 for release of his medical claim. However, the OPs had repudiated his medical claim on the ground that he was suffering from swelling in left scrotum for 3 years. The said problem had not been disclosed by him in the Proposal Form. As a matter of fact, the Complainant was not suffering from the said ailment for the last 3 years, it was inadvertently mentioned by the hospital authorities, which was rectified later on. Therefore, the act of repudiation of the claim and cancellation of the policy by the OPs amounted to be a case of 'deficiency of service'. Hence the Complaint was filed by the Complainant by praying that directions be issued to the OPs to pay a claim of Rs.1,22,372/- along with compensation of Rs.4,00,000/- and Rs.21,000/- as cost of litigation.
4. Upon issuance of notice, the OPs had filed their written statement by raising certain preliminary objections that the Complaint of the Complainant was not maintainable. As per the investigation carried out by the OPs, it was found that the Complainant was a known case of swelling in left Scrotum. He had been undertaking the treatment for the said disease for the last 3 years. However, this fact was not disclosed at the time of purchase of the policy. Therefore, the pre-authorization request for cashless treatment was declined. When the claim for reimbursement was lodged, the entire record and documents were scrutinized and it was found that the ailment had occurred within 24 months waiting period from inception of policy. As per clause 5.3 (L) of the policy terms and conditions, the claim was not found to be payable/genuine. The other averments were denied by the OPs. They had prayed for dismissal of the Complaint. F.A.No.580 of 2022 4
5. By considering the averments made in the Complaint as well as in the reply thereof, the Complaint filed by the Complainant was dismissed vide order dated 22.04.2022 passed by the District Commission. The relevant part of said order is reproduced as under:-
"8. As a result of the above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room."
6. The Appellant/Complainant has filed the present Appeal being aggrieved by the order dated 22.04.2022 passed by the District Commission by raising a number of arguments.
7. M.A.No.1163 of 2022 (For Additional Evidence) This Application has been filed by Counsel for the Appellant for placing on record document by way of additional Evidence.
Notice of the Application was issued and reply to the Application was filed by Counsel for the Respondents.
For the reasons mentioned in the Application and submissions made by learned Counsel for the parties, the said Application is allowed. The document (Annexure-1) attached with Application is taken on record for proper adjudication of the case.
Misc. Application is disposed off accordingly.
8. Mr.Anmol Jindal, Advocate, learned Counsel for the Appellant has submitted that after the rejection of the medical claim, the Respondents/OPs had not considered the clerical error. In fact they had cancelled the policy of the Appellant/Complainant. The cancellation of the policy was in itself a violation of Clause 3. It was an F.A.No.580 of 2022 5 arbitrary decision made by the OP. In the said policy it was mandated to serve a notice of 30 days prior to cancellation of the policy. Cancellation without notice is a prima facie violation of the policy itself by the Respondent No.1. Although the Hospital authorities had corrected the clerical error in the duration of ailment suffered, however no attempt was made by Respondent No.1 to revive the policy of the Appellant/Complainant. The District Commission had relied upon Clause 5.3 of the policy in rejecting the claim of the Complainant. The ailment suffered by the Appellant/Complainant was not falling under the conditions given under clause 5.3. A period of 24 months was applicable only in case where all internal or external benign or In Situ Neoplasms/Tumors, Cyst, Sinus, Polyp, Nodules, Swelling, Mass exist was diagnosed. The Appellant/Complainant was suffering from from "Malignant Neoplasm" which is another name for cancer.
9. Learned Counsel has also submitted that admittedly, the Appellant/Complainant had misread his Histopathology report dated 30.01.2019 (Annexure-11) wherein, the term cancer had not been used. Instead of cancer Malignant Neoplasm had been mentioned which is another term for cancer. Such version was difficult for a layman to understand and explain. Said report could not be produced before the District Complainant due to sheer human error. A bare perusal of the said report explicitly shows that the Testis of the Appellant/Complainant had an apparent presence of circumscribing cellular with tumor cells arranged and the histology consisted of germ-cell tumor-seminoma. A seminoma is a slow-growing form of testicular cancer. Therefore, it is clear F.A.No.580 of 2022 6 that the Appellant/Complainant being a simple person could not understand the technical aspects of the said medical report.
10. Learned Counsel has also submitted that the Appellant/Complainant had learnt that his medical condition of swelling in left testicle was a direct consequence of testicle cancer after consulting the doctors. Thus, it is obvious that he was not to undergo a waiting period of 24 months for the treatment of his left testicle as the same was cancerous. Learned Counsel has prayed that claim of the Appellant/Complainant should have been allowed as his ailment was a direct consequence of cancer. Accordingly, his claim is required to settle. Learned Counsel has prayed for acceptance of the Appeal.
11. Mrs.Monika Thatai, Advocate, learned Counsel for the Respondents/OPs has argued on the similar lines as per the written reply filed before the District Commission. Learned Counsel has submitted that the Appellant/Complainant had raised a preauthorization request for cashless treatment and a subsequent claim for reimbursement, with the Company. As per the investigation of the Company and hospital records it was found that the Insured Person i.e. Sandeep Kumar was a known case of Swelling in Left Scrotum. He was under treatment for a period of three years and this fact was not disclosed at the time of taking the policy, due to which the preauthorization request for cashless treatment was denied. When the claim for reimbursement was filed and the complete documents were scrutinized, it was found that as per the policy terms and conditions, the ailment of the Appellant was estopped from Clause 5.3 (L) i.e. waiting period of 24 months of the policy in question. Accordingly, as F.A.No.580 of 2022 7 per the terms and conditions mentioned under Clause 5.4 of the said policy, the treatment of the medical condition and/or surgical treatment would be subject to a waiting period of 24 months. Furthermore, it would be covered in the third year of the policy, subject to the condition that insured person was continuously insured without any break. The said Clause would be applicable only if the medical condition of the insured was caused by cancer or by an accident. In the instant case, the Appellant/Complainant had not disclosed the correct information at the time of purchase of the policy, therefore he violated the terms and conditions of the policy. Insurance is a contract between the insurer and insured and so both are bound by its terms and conditions. The Appellant/Complainant had concealed the material facts of the case. He was guilty of Suppressio veri and suggestio falsi.
12. Learned Counsel has also submitted that the Appellant/Complainant had failed to demonstrate any 'deficiency in service' as per Section 2 (g) of the CP Act, which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, which is required to be maintained in pursuance of a contract. The District Commission had applied its judicious mind and appreciated the material facts and documents available on record while passed the impugned order dated 22.04.2022. Learned Counsel has relied upon certain judgments i.e. 1) Satwant Kaur Sandhu Vs. New India Assurance Company Ltd., SC 2776 of (2006), 2) Reliance Life Insurance Co. Ltd. & Anr. Vs. Rekhaben Nareshbhai Rathod, Civil Appeal No.4261/2019 (SC), 3) Life Insurance Corporation of India & Ors. Vs. Smt.Asha Goel & F.A.No.580 of 2022 8 Anr. (2001) ACJ 806, 4) P.C.Chacko and Anr. Vs. Chairman, Life Insurance Corporation of India and Ors., AIR 2008 SC 424, in support of her arguments.
13. We have heard the oral arguments raised by learned Counsel for the parties. We have also perused the order dated 22.04.2022 as well as all the relevant documents available on the file.
14. Facts relating to the filing of the Complaint by the Complainant before the District Commission, reply thereof, the oral arguments raised by learned counsel for the parties and passing of impugned order dated 22.04.2022 by the District Commission, thereafter filing of present appeal before this Commission by the Appellant/Complainant are not in dispute.
15. The Complainant was insured with the OPs. He was admitted in the hospital due to Swelling in Left Scrotum. He had spent an amount of Rs.1,22,372/- on his treatment. Accordingly, he had lodged his health insurance claim with the OPs. The OPs had approved his pre-authorization request on 29.01.2019 for an amount of Rs.46,930/- (Ex.C-14) as initial approval with a condition that the claim settlement would be as per the terms and condition of the policy and as per the package and MOU signed by the hospital. Furthermore, it was mentioned that for any pre-existing disease his illness would not be covered under the scope of said authorization. If there was any non- disclosure/misrepresentation of medical facts found after or in between the approval, the entire pre-authorization claims approval would become null and void. Thereafter, the policy was cancelled by the OPs F.A.No.580 of 2022 9 vide email dated 06.02.2019 (Ex.C-9). The relevant portion of the email is reproduced as under:-
"We would like to inform you that during processing of your claim it has been noticed that there has been a non-disclosure of below mentioned pre-existing illness/medical conditions at the time of applying for health insurance policy with Us:
Sandeep Kumar Swelling in left Scrotum since 3
years (Now admitted for Left
testicular mass)
It is our endeavor to be fair and equitable with all our customers and this commitment can only be honored if our customers ensure that they do full and complete disclosure of their medical condition(s) and other material informations at the time of applying for health insurance with us.
In the light of the facts and the information available with us, we regret to inform you that we are unable to continue with the policy coverage any further."
Meaning thereby that the claim of the Complainant was rejected on the ground as there had been a non-disclosure of pre-existing illness/medical conditions at the time of applying for Health Insurance Policy.
16. As per the discharge summary of Dayanand Medical College & Hospital, Ludhiana that the insured was suffering from Swelling in left scrotum for 3 years (page 150 Ex.OP1/2). The duration of the disease was inadvertently mentioned as 3 years whereas the Appellant/Complainant had been suffering from the disease for 3-4 days only. It was mistakenly mentioned as 3 years. To substantiate this fact, the Appellant/Complainant had produced corrected version of discharge summary issued by Sr.Registrar, DMC & Hospital Ludhiana (Ex.C-4).
F.A.No.580 of 202210
17. Inspite of the correction made by the treating hospital, the claim of the Appellant/Complainant was not approved as per clause 5.3 (L) of the policy wherein it has been mentioned that there is a waiting period of 24 months before the claim for health insurance can be processed/decided by the Insurance Company. It could only be settled if the illness of the Appellant/Complainant was caused by cancer or an accident.
18. During the course of hearing of the arguments before this Commission, the Complainant has produced the copy of Histopathology Report dated 05.02.2019 with regard to his ailment/illness by way of additional evidence. In the said report under the caption of Impression it has been mentioned "Histology consistent with Germ-cell tumor-Seminoma (ICD-o-Code-9061/3)- Testes." In simple words the said medical term refers to Malignant (Cancerous) Germ-cell tumor that can effect the testicles or other parts of the body (source google search engine). As per this report, the insured was suffering from a type of cancer. Said document had not been produced before the District Commission by the Appellant/Complainant. The Complaint was dismissed by the District Commission on the ground which reads as under :-
7. In the written statement, the claim is said to have been repudiated on the grounds by invoking clause 5.4 (L) of the policy ex.
C1 which provides waiting period of 24 months for the treatment of diseases mentioned under clause 5.3 (a) to 5.3 (o). The specific clause 5.3 (l) reads as under:-
"5.3 (l):
All internal or external benign or In Situ Neoplasms/Tumors, Cyst, Sinus, Polyp, Nodules, Swelling, Mass or Lump."F.A.No.580 of 2022 11
It has been contended by the counsel for the OPs that since the policy was in the first year and the period of 24 months had not expired so expenses for the treatment for swelling in the left scrotum was not payable. We have thoughtfully considered the above contentions raised by the counsel for the OPs. In the discharge summary Ex. C3, it is clearly mentioned that the reason of admission of the complainant was 'swelling in left scrotum'. Clause 5.3 (l) of the policy terms and conditions clearly provides that there is a waiting period of 24 months for all internal or external benign or In Situ Neoplasms/Tumors, Cyst, Sinus, Polyp, Nodules, Swelling, Mass or Lump unless the same are caused by cancer or an accident. It is not the case of the complainant nor any evidence has been led in this regard that the swelling in scrotum was not benign or that the same was cancerous. Therefore, since there was a waiting period of 24 months which had not expired at the time when the complainant was hospitalized, as per the terms and conditions of the policy claim was not payable and the same has been rightly repudiated.
19. From above it has clearly been established that the District Commission had passed the order in absence of the Histopathology report as the same was not brought on record by the Complainant before it. However, the said report has been produced before this Commission by way of additional evidence which clearly shows that the Appellant/Complainant was suffering from Malignancy in his Testis. The case of the Appellant/Complainant is covered under the clause 5.3 of the Health Insurance Policy issued by the Respondents/OPs.
20. In light of aforesaid observation and the documents produced before us, we deem it appropriate to issue directions to the Respondents/OPs to settle his health insurance claim as per terms and conditions of the policy No.30781419201800 keeping in view of the Histopathology report dated 05.02.2019 produced before this Commission by way of additional evidence. F.A.No.580 of 2022 12
21. Accordingly, the Appeal of the Appellant/Complainant is disposed off with the directions to the Respondents/OPs to reconsider the claim of the Appellant/Complainant as per the terms and conditions of the policy by considering the above mentioned Histopathology report. The order dated 22.04.2022 passed by the District Commission is set aside. The Compliance of the order shall be made by the Respondents/OPs within a period of 45 days from the receipt of copy of the order.
22. Since the main case has been disposed off, so all the pending miscellaneous applications, if any, are accordingly, disposed off.
23. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER October 16, 2024 (Rupinder 2)