State Consumer Disputes Redressal Commission
Max Bupa Health Ins Co Ltd vs Anaradevi Balmukund Pande on 19 March, 2021
Details DD MM YY
Date of Judgment 19 03 2021
Date of filling 13 05 2015
Duration 06 10 05
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,
GUJARAT STATE AT AHMEDABAD.
Court-3
APPEAL NO. 842 of 2015 Dt: 19.03.2021
Max Bupa Health Insurance Co. Ltd.
Udhna Darwaja, Ring Road,
Surat. ...Appellant
Vs.
1 Anaradevi Balmukund Pande
101, Dhanchhaya Apartment,
Agyari Street, Bh. World Trade Centre,
Surat.
2 Shailesh Balmukund Pande
101, Dhanchhaya Apartment,
Agyari Street, Bh. World Trade Centre,
Surat. ...Respondents
Appearance: Mr. Darshil Parikh, Ld. Advocate for the Appellant
Coram: (Shri S. N. Vakil, Member)
(Shri J.Y. Shukla, Member)
Order by Shri S. N. Vakil, Member
1. This Appeal is filed by the Insurance Company.
2. The Respondents - Complainants filed Consumer Complaint No. 230 of 2012 with CDRF, Surat (Main), against the appellant the Max Max Bupa Health Insurance Co. Ltd. that they obtained insurance from the opponent vide Policy No. 3003426201000 for Rs. 2 lakhs from the period from 28.04.2011 to 27.04.2012 (02.05.2011 to 01.05.2012). During the subsistence of the policy the complainant Anaradevi Balmukund Pande had some trouble in left eye, consulted Dr. Chetana Patel of Ashirvad Eye K.S.P A-15-842 Page 1 of 6 Hospital, was advised for some necessary tests, whereafter was diagnosed of Senile Cataract in left eye, advised for operation which was carried out on 18.10.2011, at the expenses of Rs. 28,200/-. The insurance company wrongly repudiated the claim by letter dated 29.12.2011 on the ground of pre-existing disease. She had never been admitted in any hospital nor ever took treatment nor was she aware of any such illness. Dr. Chetna Patel gave certificate dated 13.10.2011 that she had no pre-existing disease, yet the claim was denied. For this deficiciency are claimed for Rs. 28,200/- with 15% interest, Rs. 10,000/- towards mental pain and costs.
3. The defense vide written statement is of denial. The complainant was asked to fill the proposal form wherein specific question: (1) within the last 7 years have you been to a hospital for an operation and/or an investigation (e.g. scan, x-ray, biopsy or blood tests?) (2) within the last 3 months, have you experienced any health problems or medical conditions which you have not seen a doctor for? Were asked the complainants answered in negative. During investigation it has been discovered that on July 17, 2009, complainant underwent cataract surgery in right eye at Asshirwad Hospital and Laser Center which was performed prior to inception of policy which is May 03, 2011. Under clause 4 exclusions (a) Pre-existing Conditions that benefits will not be available for pre-existing conditions until 48 months of the continuous coverage have elapsed since the inception of the first policy. The claimants were not entitled to. Besides under clause 5 (g) (3) the insurance policy was cancelled on 12.12.2011 for non-discloser of pre-existing right eye cataract surgery at the time of filling the proposal form. The claim was not for Rs. 28,200/- but for Rs. 25,800/-.
K.S.P A-15-842 Page 2 of 6
4. CDRF, Surat by its order dated 30.01.2015 allowed the complaint, ordered the Insurance Company to pay the claimants Rs. 28,200/- with 9% interest from 29.12.2011 till realization, Rs. 25,000/- towards compensation and Rs. 1,000/- towards costs.
5. Being aggrieved by the same the insurance company has preferred this appeal.
6. The claimants have not appeared in this appeal though served.
7. Heard Ld. Advocate Mr. Darshil Parikh, for the appellant. Nobody is present for the respondents.
8. For the insurance company the arguments on the same as the Written Version is.
9. The report of the investigation undertaken by: fraud and investigations team, dated 01.12.2011 mentions that 'the insured Mrs. Anaradevi Balmukund Pande was admitted at Keshvi Eye Hospital for planned left cataract extraction with Phaco with Foldable IOL on 18.10.2011 and surgery was done on same day. Insured past history of right eye cataract was found'. Discharge card of Ashirvad Eye Hospital and Research Center shows that she was operated for right eye Phaw IoL Iemp on 17.07.2009. The proposal form has asked question: (2) within the last 7 years have you been to a hospital for an operation and/or an investigation (e.g. scan, x-ray, biopsy or blood tests?) (4) Within the last 3 months, have you experienced any health problems or medical conditions which you have not seen a doctor for? The answers were NA. Therefore it was argued vide Satwant Kaur Sandhu Vs. New India Assurane Company Ltd., (2009) 8 Supreme Court Cases 316, that when his information on a special aspect was asked for in the proposal form, the assured is under a solemn obligation to make a true and full discloser of the information on K.S.P A-15-842 Page 3 of 6 the subject which was within her knowledge; whether the information sought for is material for the purpose of the policy is not to be determined by the proposer. And that therefore the insurance company has rightly cancelled the policy and the amount is not payable. Now, the letter of repudiation dated 29.12.2011 is: 'with respect to the treatment undertaken by you'. On perusal of your claim documents for Senile Cataract in Keshvi Eye Hospital on October 18, 2011. On examination of the documents by our team of doctors and other information available, we find that the treatment undertaken by you and supported by the claim documents was in respect of a pre-existing condition which was not disclosed at the time of submission of proposal form to the company. .... Now, therefore the ground of repudiation namely, the treatment undertaken by her on 18.10.2011 was in respect of a pre-existing condition which was not disclosed at the time of submission of the proposal form to the company, is not found true because the operation done earlier in 2009 related to right eye whereas the present one operated on 18.10.2011 was with respect to the cataract in the left eye. That is, the present operation was not in the same eye in which she was previously operated. It is also clear that the ground of repudiation has to be pleaded in defense and proved, and no other; however the defense pleaded is with respect to the non-discloser of operation of cataract in the right eye only, which not being the ground of repudiation cannot be adjudicated upon in the Form. Therefore the defense in the written version deserves to be held as failed so also the appeal and the arguments herein.
10. There is nothing to show that the insured had knowledge of cataract in left eye, before proposing for the policy. Questionaire to Dr. Chetana Patel K.S.P A-15-842 Page 4 of 6 reveals that she was suffering from Dov in left eye since 3-4 months which was diagnosed by them (Doctor) on 13.10.2011. Therefore it being after the policy dated 02.05.2011, the policy cannot be termed as fraudulently obtained.
11. The complainants claim Rs. 28,200/- whereas a defense is that the claim was put for Rs. 25,800/-. There is no document on record by which it can be said for what amount the claim was actually made. Receipt by Keshvi Eye Hospital dated 18.10.2011 is for Rs. 25,000/-. Therefore the defense is believable, whereby award passed by the Forum for Rs. 28,000/- requires to be reduced to 25,800/-. Again the Forum has granted interest 9% from 29.12.2011 but the complaint was filed on 30.03.2012 therefore the interest cannot be from date earlier than 30.03.2012. The Forum has awarded Rs. 25,000/- towards compensation against Rs. 10,000/- claim towards mental pain. No specific reason is found for the same, which therefore requires to be reduced to Rs. 3,000/-, leaving the rest as it is.
12. For the reasons stated the appeal deserves to be partly allowed for which following final order is passed.
FINAL ORDER
i) Appeal No. 842 of 2015 is partly allowed.
ii) The order passed by the DCRF, Surat (Main) on 30.01.2015 with CC No. 230 of 2012 is hereby modified to the extent that the Appellant - Opponent the Max Bupa Health Insurance Co. Ltd. do pay the Complainant - Respondent Rs. 25,800/- (Rupee twenty five thousand eight hundred only) together with interest at the rate of 9% from the date of complaint 30.03.2012 till realization; Rs. 3,000/- towards mental pain and Rs. 1,000/- towards costs.
K.S.P A-15-842 Page 5 of 6
iii) No order as to costs.
iv) Registry is directed to pay the deposited amount, with accrued interest, if any, on proper verification to the appellant by account payee cheque and the cheque be handed over to the advocate for the appellant after obtaining receipt.
v) Copy of the judgment be provided to the parties free of charge.
Pronounced in the open Court today on 19th day of March, 2021.
(J.Y.Shukla) (S.N.Vakil)
Member Judicial Member
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