State Consumer Disputes Redressal Commission
Max Bupa Health Insurance Company ... vs Sahil Mittal on 20 August, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.526 of 2019
Date of institution : 13.08.2019
Reserved On : 27.07.2021
Date of decision : 20.08.2021
Max Bupa Health Insurance Company Limited, Registered Office, Max
House, 1 Dr. Jha Marg, Okhla, New Delhi-110020.
....Appellant/Opposite Party
Versus
Sahil Mittal S/o Sh. Gauri Shanker Mittal, R/o House No.366, Old
Fazilka Road, Abohar, District Fazilka, Punjab.
....Respondent/Complainant
First Appeal against the order dated
21.06.2019 of the District Consumer
Disputes Redressal Forum (now,
"Commission") Ferozepur.
Quorum:-
Mr. Rajinder Kumar Goyal, Presiding Member
Mrs. Kiran Sibal, 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
Argued By:-
For the appellant : Sh. K.S. Cheema, Advocate
For the respondent : Sh. Nitin Kant Setia, Advocate.
RAJINDER KUMAR GOYAL, PRESIDING MEMBER
The instant appeal has been filed by the appellant/opposite party against the order dated 21.06.2019 passed by District Consumer Disputes Redressal Forum (now, "Commission"), Ferozepur (in short, First Appeal No.526 of 2019 2 "the District Commission"), whereby the complaint filed by the respondent/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), was allowed in the following manner:
"11. In view of what has been discussed above, the present complaint is allowed with ₹4000/- as consolidated compensation for mental agony, pain and harassment and the opposite party is directed to pay ₹88,724/- as claim to the complainant along with interest @8% per annum from filing of present complaint till realization. This order is directed to be complied with within a period of thirty days from the date of receipt of its copy, failing which, complainant shall be at liberty to get the order executed through the indulgence of this Forum."
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission. Facts of the Complaint
3. Brief facts, as averred in the complaint, are that the complainant had purchased a health insurance policy from the opposite party, bearing No.30727410201700, by paying premium of ₹26,955/- through Credit Card, directly in the account of opposite party. That policy was valid from 29.12.2017 to 28.12.2018 and the sum insured thereunder was ₹15,00,000/-. Under that policy, the complainant and his family members were covered. At the time of getting the said insurance policy, the agent of opposite party, namely Mr. Puneet Narula, visited the premises of complainant and completed all the documentation on behalf of opposite party at Abohar. It is averred that during the validity period of the said insurance policy, the son of the complainant, namely Saatvik Mittal (hereinafter to be referred as "insured"), aged seven years, had complained of fever/cold/throat pain/earache on 31.01.2018 and he was got checked First Appeal No.526 of 2019 3 from Dr. Rajesh Aneja, M.D., Child Specialist C/o Jyoti Hospital, Child Care Center, Abohar; who after giving first aid referred him to higher Department of ENT Surgery. Thereafter, the complainant got checked the insured from Fortis Hospital, Mohali and Dhillon Hospital, Bathinda, where all the requisite tests of the insured were conducted and he was diagnosed to have cough and mild conductive hear loss for two months. The surgery of the insured was conducted at Fortis Hospital on 13.04.2018 and he was discharged therefrom on 14.04.2018. Thereafter, the complainant submitted the insurance claim to the opposite party, along with all documents/bills and completed all the formalities, as required by the opposite party time to time. However, the claim of the complainant was repudiated by the opposite party, vide e-mail dated 11.06.2018, on the ground that the insured was suffering from "Tonsillitis since February, 2017, ear pain on treatment in 2016". It is further averred that the claim has been illegally and wrongly repudiated on the above said ground, as the insured was not suffering from any pre-existing disease, nor any material fact was concealed while taking the insurance policy. Alleging deficiency in service and unfair trade practice on the part of the opposite party, the complainant approached the District Commission, by way of filing the complaint and sought following directions to them:
i) to settle the claim of the complainant and refund the amount of ₹88,724/-, along with interest at the rate of 18% per annum; First Appeal No.526 of 2019 4
ii) to pay ₹50,000/- as compensation for the harassment, inconvenience and financial loss suffered by the complainant;
and
iii) to pay ₹11,000/- as litigation expenses.
Defence of the Opposite Parties
4. Upon notice, the opposite party appeared before the District Commission and filed reply to the complaint, in which it raised preliminary objections that the complaint is not maintainable. The complainant has not approached the District Commission with clean hands. The policy, in question, was issued by the opposite party on the basis of information provided by the assured in the 'Insta-Insure Application' and later on it was confirmed to the Health Insurance Counselor of the Company that in case the policy holder wants to continue with the policy, then on payment of next year's premium, a different policy number shall be issued. The opposite party company has acted strictly, as per the policy terms and conditions within the four corners of the statutory provisions. There is no deficiency in service on the part of the opposite party. The repudiation of the claim of the complainant is a speaking order and it cannot be termed as deficiency in service. The complainant should approach the Civil Court to challenge the same. It is further pleaded that as per Clause 4(1) and 6(2) of IRDA (Protection of Policy Holder's Interest) Regulations, 2002, the opposite party had sent the policy and policy documents, along with information summary sheet etc. to the complainant. As per the terms and conditions of the insurance policy/contract, if the policy is First Appeal No.526 of 2019 5 not suitable, the policy holder may get his/her policy reviewed by returning the policy/policy documents within 15 days (Free Look Period) from the date of receipt of the same. However, after receipt of policy/policy documents, the complainant did not exercise this option within the stipulated period, nor raised any grievance qua the insurance policy thereafter. Hence, he is bound by the terms and conditions of the insurance policy. It is further pleaded that during investigation got carried out by the opposite party, it was found that the son of the complainant was suffering with chronic Adenotonsillitis, Bilateral and received treatment from Fortis Hospital, Mohali. He was suffering from tonsillitis since February, 2017, ear pain and took treatment for the same in the year 2016. Hence, the same falls under the category of pre-existing condition and non-disclosure and, as such, the claim was not payable as per Clause 7.1 of the terms and conditions of the insurance policy, which reads as under:
"7.1 Pre-existing Diseases:
All Pre-existing Diseases shall not be covered until 24 months of continuous coverage have elapsed since the inception of the First Policy with us for Insured Persons to whom the Gold and Platinum Plans are applicable and until 48 months of continuous coverage have elapsed since the inception of the First Policy with us for Insured Persons to whom the Silver Plan is applicable.
No benefits shall be paid for any Pre-existing Disease unless such Pre-existing Disease is stated in the Proposal and specifically accepted by us and endorsed thereon."
5. It is further pleaded that the complainant has not acted in good faith and concealed material facts deliberately, while obtaining the insurance policy, in question. Hence, the contract of insurance is First Appeal No.526 of 2019 6 rendered viod-ab-initio and inoperative. On merits, similar pleas, as raised in preliminary objections, have been reiterated. All other allegations contained in the complaint have been denied and it has been prayed that the complaint be dismissed with exemplary costs, under Section 26 of the Act.
Evidence of the Parties and Finding of the District Commission
6. The complainant, in support of his claim, tendered his own affidavit as Ex.C-1, along with copies of documents i.e. Credit Card Statement Ex.C-2, insurance policy Ex.C-3 (colly.), prescription slip dated 31.01.2018 issued by Jyoti Hospital Ex.C-4, prescription slips issued by Fortis Hospital Ex.C-5 and Ex.C-6, prescription slip and investigation issued by Dhillon Hospital Ex.C-7 and Ex.C-8, bills/receipts issued by Fortis Hospital Ex.C-9 to Ex.C-13 & Ex.C-16, Discharge Summary issued by Fortis Hospital Ex.C-14, diet/follow up advice issued by Fortis Hospital Ex.C-15, Questionnaire for Insured/Patient/Proposer Ex.C-17 and Ex.C-18, Self Declaration of insured Ex.C-19 and Ex.C-20 and e-mail dated 11.06.2018 for repudiation of claim Ex.C-21.
7. The opposite party, in support of its defence, tendered affidavit of Sh. Bhuwan Bhashker, Manager (Legal) as Ex.OP/1, along with copies of documents i.e. Letter of Authorization Ex.OP/2, Information Summary Sheet Ex.OP/3, insurance policy/policy documents Ex.OP/4 (colly.), Claims Reimbursement Checklist Ex.OP/5, Claim Form Ex.OP/6, repudiation letter dated 11.06.2018 Ex.OP/7, letter giving reason for disallowance of claim Ex.OP/8, First Appeal No.526 of 2019 7 Investigation Report Ex.OP/9 and Ex.OP/10, record of Jyoti Child Care Centre Ex.OP/11 (colly.), record of Loona Nursing Home Ex.OP/12 (colly.), Aadhaar Card of Dr. Gayatri Mittal wife of the complainant Ex.OP/13, Aadhaar Card of Saatvik Mittal Ex.OP/14, Self Declaration Form of insured Ex.OP/15 (colly.), receipt/Discharge Summary/record of Fortis Hospital, Jyoti Hospital Child Care Centre etc. Ex.OP/16 (colly.) to Ex.OP/18 (colly.).
8. The District Commission, after going through the record and hearing learned counsel for the parties, allowed the complaint, vide impugned order. Hence, this appeal.
Contentions of the Parties
9. We have heard learned counsel for the parties and have carefully gone through the written arguments submitted on their behalf and records of the case.
10. The written arguments submitted on behalf of the appellant/opposite party are on the lines of pleadings made in its reply as well as grounds of appeal. The sum and substance of oral and written arguments is that Mr. Saatvik Mittal, son of the complainant, was suffering from pre-existing disease of Adenotonsillitis prior to taking the insurance policy, but the complainant suppressed the same at the time of taking the insurance policy, fraudulently. The wrong declaration was made by the insured, while filling up the information in the Insta-insure Application; which vitiates the contract between the parties. Therefore, the claim of the complainant was rightly repudiated as per Clause 7.1 of the insurance policy. It has been further First Appeal No.526 of 2019 8 contended that the insurance policy, along with policy documents, Information Summary Sheet, terms and conditions etc. were duly supplied to the complainant at the time of the issuance of the insurance policy. In case, the complainant was not satisfied with the terms and conditions of the insurance policy, he could have returned/cancelled the insurance policy within the 'Free Look Period' of 15 days, but he did not do so for the reasons best known to him. Hence, the complainant is bound by all the terms and conditions of the insurance policy. There is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed.
11. The written arguments submitted on behalf of the respondent/complainant are on the lines of averments made in the complaint. The sum and substance of oral and written arguments is that in the Information Summary Sheet, which has been relied upon by the opposite party, the only question put was that "is the applicant currently suffering from any symptom(s) or complaint(s) persisting from more than five consecutive days for which he/she has not consulted a doctor. Therefore, the simple answer was given that none of the proposed insured persons had consulted any doctor in the last five days. Furthermore, no material information or disease was ever concealed by the complainant at the time of filling the 'Insta-insure Application Form'. All the relevant documents were provided to the agent of the opposite parties before taking the insurance policy, which has now been cleverly produced in defence by the opposite party. The mild illness/cold and cough of the insured was in the knowledge of the First Appeal No.526 of 2019 9 opposite party at the time of issuing the insurance policy. Clause 7.1 of the insurance policy is not applicable to the present case, as the son of the complainant was not suffering from any pre-existing disease, nor any material information was ever concealed. The repudiation of the claim is illegal and wrong and the appeal is liable to be dismissed. Consideration of Contentions
12. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties.
13. Admittedly, the complainant had purchased the health insurance policy from the opposite party, under Plan "FAMILYFIRST SILVER 1L+10L" bearing No.30727410201700, Ex.C-3 (colly.); which was valid from 29.12.2017 to 28.12.2018. The sum insured thereunder was ₹15,00,000/-. Under that policy, the complainant and his family members, including his wife Smt. Gayatri Mittal; and sons Mr. Saatvik Mittal, Mr. Rayirth Mittal and Mr. Diyara Mittal were insured. During the subsistence of the said insurance policy, Mr. Saatvik Mittal (aged 7 years), insured complained of fever, cold, pain, throat/earache and he was taken to Jyoti Hospital, Child Care Centre on 31.01.2018; where he was attended to by Dr. Rajesh Aneja, M.D. Child Specialist. After examining, he referred the insured to Department of ENT/higher centre. Thereafter, the insured was got checked at Dhillon Hospital, Bathinda and Fortis Hospital, Mohali. The surgery of the insured was conducted at Fortis Hospital, Mohali on 13.04.2018 and he was discharged therefrom on 14.04.2018, vide Discharge Summary Ex.C-
14. The claim lodged by the complainant was repudiated by the First Appeal No.526 of 2019 10 opposite party, vide e-mail/letter dated 11.06.2018, Ex.C-21/Ex.OP-7, on the ground that the insured had concealed material facts that Saatvik Mittal was suffering from Tonsillitis since February, 2017, ear pain and was under treatment in the year 2016 and the claim is not payable as per Clause 7.1 of the insurance policy.
14. The only question to be decided for disposal of the present appeal is, whether the repudiation of the claim of the complainant is justified on the above referred ground?
15. The opposite party has relied upon the Information Summary Sheet, Ex.C-3 (colly.)/Ex.OP-3. The 'Insta-Insure Application' alleged to have been filled up by the complainant at the time of getting the insurance policy has not been produced on record. Perusal of Information Summary Sheet shows that specific questions were put to the insured persons about their health/diseases and word "No" has been ticked in all the columns. It is a matter of legal parlance that all the Proposal Forms, containing material questions qua health of the insured etc., are got signed from the insured before issuing any insurance policy. However, in the instant case, the Information Summary Sheet has been signed on behalf of the opposite party only and no signatures of the complainant or other insured persons have been obtained on it. Even there is no declaration signed by the insured on the same. In the absence of signatures of the insured persons on the same, it cannot be proved that the insured had given any wrong answer or any material fact was concealed. Even the disease, for which the insured was operated upon, is not specifically mentioned in First Appeal No.526 of 2019 11 the Information Summary Sheet, Ex.OP/3 (colly.). The opposite party has also relied upon Clause 7.1 of the insurance policy, as reproduced above. However, the fact remains that it is also mentioned under that Clause that no benefits shall be paid for any pre-existing as stated in the Proposal and specifically accepted by the Insurance Company. This part of Clause 7.1 is the basis of entire Clause. Since the Information Summary Sheet has neither been signed on behalf of the insured persons, nor any declaration has been made or signed thereunder on their behalf, so Clause 7.1 of the insurance policy cannot operate in isolation.
16. Furthermore, perusal of Discharge Summary, Ex.C-14, shows that the insured was presented in the said hospital with chief complaints of cold and mild hear loss for two months and there was no significant medical/surgical history. It is the specific plea of the complainant that all the relevant documents/information was provided to the agent of the opposite party at the time of issuance of the insurance policy, in question, which have now been produced by the opposite party in defence. This fact is supported by the contents of the Investigation Report, Ex.OP-9, produced by the opposite party itself. In the column "Details verified by the Investigator: Manual", no tick marking has been done in the boxes containing words "Yes" or "No", against following points:
- ICP collected from the hospital.
- Whether prevision admission hospitalization documents collected.
- Treating doctor/family physician opinion taken.
- Diagnostic Centre visited and records verified. First Appeal No.526 of 2019 12 From this fact, the version of the complainant, that all the previous details of the treatment taken by the insured Saatvik Mittal were already provided to the agent of the opposite party at the time of issuance of the insurance policy and no material information was ever concealed, seems to be correct. Otherwise, the investigator should have ticked "No", if the documents pertaining to previous treatment of the insured were not obtained by the opposite party from the insured before issuance of the insurance policy. Be that as it may, the fact remains that since the Information Summary Sheet does not bear signatures of the insured, so it cannot be said that the contents of the same were read over and explained to him and, as such, the insured is not bound by the same. Hence, it is clear that no cogent and convincing evidence has been led by the opposite party to prove that the insured had concealed any material information while purchasing the insurance policy. The opposite party has repudiated the genuine claim of the complainant on the basis of unfounded assumption. Hon'ble Supreme Court in case P. Vankat Naidu Vs. Life Insurance Corporation of India & Anr. IV (2011) CPJ 6 (SC) 6 held in Paras No.6 & 7 as follows:
"6. We have heard learned counsel for the parties and carefully perused the record. In our view, the finding recorded by the District Forum and the State Commission that the respondents had failed to prove that the deceased has suppressed information relating to his illness was based on correct appreciation of the oral and documentary evidence produced by the parties and the National Commission committed serious illegality by upsetting the said findings on a wholly unfounded assumption that the deceased has suppressed information relating to hospitalization and treatment.First Appeal No.526 of 2019 13
7. Since the respondents had come out with the case that the deceased did not disclose correct facts relating to his illness, it was for them to produce cogent evidence to prove the allegation. However, as found by the District Forum and the State Commission, the respondents did not produce any tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment. Therefore, the National Commission was not justified in interfering with the concurrent finding recorded by the District Forum and the State Commission by making a wild guesswork that the deceased had suppressed the facts relating to his illness."
17. It is also relevant to mention that when the insurance policy is issued to the insured, prior investigations regarding health of the insured are duly done by the Insurance Company. However, no such investigation record has been produced by the opposite party. In case Bajaj Allianz Life Insurance Co. Ltd. & Ors. v. Raj Kumar III (2014) CPJ 221 (NC), it was held by the Hon'ble National Commission that usually, the authorized doctor of the Insurance Company examines the insured to assess the fitness and the policy is issued only after complete satisfaction, but no such record was produced by the insurer. It was held that the Insurance Company wrongly repudiated the claim of the complainant on the ground of pre-existing disease.
18. Further, in case "New India Assurance Company Limited Vs Smt. Usha Yadav & Ors.", 2008(3)RCR(Civil)-111(P&H), Hon'ble Punjab & Haryana High Court held as under:-
"6....It seems that the Insurance Companies are only interested in earning the premiums, which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance Companies make the effected people to fight for getting their genuine First Appeal No.526 of 2019 14 claims. The insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus, pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy."
19. Another important point is that no cogent and convincing evidence, such as dispatch number, postal receipts etc., has been produced on record by the opposite party to prove that all the terms and conditions of the insurance policy were supplied to the complainant, along with the insurance policy. We are aware that no such plea was taken by the complainant in the complaint, yet the fact remains that strong argument in this regard was raised by the learned counsel for the complainant during the course of arguments before the District Commission. Hon'ble Supreme Court in case Modern Insulators Ltd. v. Oriental Insurance Co. Ltd. (2000) 2 SCC 734 reversed the order of the Hon'ble National, observing that it failed to consider the fact that the terms and conditions of the Insurance Company were not supplied to the insured and upheld the order of the State Commission, allowing the claim. Thus, since the insured was not aware about the terms and conditions of the insurance policy, so the question of concealment of material facts can also not be raised. It is the duty of the Insurance Company to bring all the terms and conditions of the Insurance Policy to the specific notice of the insured, First Appeal No.526 of 2019 15 so that within the "Free Look Period", the insured person can ask for cancellation of the insurance policy and seek the refund of the premium, if he/she is not satisfied with the features of the same. In the absence of the supply of terms and conditions of the Insurance Policy, the insured was not in a position to go through the same and make his mind to accept or reject the insurance policy at the relevant time. After the lapse of sufficient long period, it cannot be presumed that the complainant is not entitled to the claim.
20. In view of our above discussion, the claim of the complainant has been wrongly and illegally repudiated by the opposite party on the above referred ground. The District Commission has committed no illegality, while passing the impugned order and there is no ground to interfere with the same.
21. Accordingly, the appeal being without any merit is dismissed and the impugned order is upheld.
22. The appellant had deposited a sum of ₹25,000/- at the time of filing of the appeal. It deposited another sum of ₹75,554/-, vide receipt dated 16.10.2019, in compliance of order dated 20.09.2019 passed by this Commission. Both these amounts, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The respondent/complainant may approach the District Commission for the release of the above amounts and the District Commission may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
First Appeal No.526 of 2019 16
23. The appeal could not be decided within the statutory period due to heavy pendency of court cases and pandemic of COVID-19.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (MRS. KIRAN SIBAL) MEMBER August 20, 2021.
(Gurmeet S)