Delhi District Court
Vipin Arora vs Niva Bupa Health Insurance Company ... on 19 November, 2025
IN THE COURT OF DR. NEERA BHARIHOKE
DISTRICT JUDGE (COMMERCIAL COURT)-06
SOUTH EAST, SAKET COURTS,
NEW DELHI
CNR No. DLSE01-005382-2021
CS (COMM) No.308/2021
Vipin Arora
S/o Late Sh. Tilak Raj Arora
R/o CH-501,
Abhimanyu Apartments,
Vasundhara Enclave,
New Delhi - 110096
... Plaintiff
Versus
Niva Bupa Health Insurance Company Limited
C-98, First Floor,
Lajpat Nagar Part-I,
New Delhi - 110024
....Defendant
Date of institution of the suit : 07.08.2021
Date on which judgment was reserved : 27.10.2025
Date of pronouncement of Judgment : 19.11.2025
JUDGMENT
SUIT FOR DECLARATION, MANDATORY AND PERMANENT INJUNCTION AND RECOVERY NEERA BHARIHOKE Digitally signed by NEERA CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 1 of 56 BHARIHOKE Date: 2025.11.19 15:46:14 +0530
1. By way of this judgment, I shall decide the suit of the Plaintiff filed for Declaration, Mandatory & Permanent Injunction, Recovery of Rs.10,50,000/- alongwith interest. The Plaintiff had also claimed Rs.5,00,000/- as compensation for mental agony, torture and harassment from the Defendant, but the Plaintiff gave up the said claim as recorded in order dated 17.02.2024.
2. There were originally two Defendants, i.e. the Insurance Company and agent, through whom the insurance policy was taken by the Plaintiff. Defendant No.2, i.e. the agent, had also filed his Written Statement to which the Plaintiff had filed Replication as well. But Defendant no. 2 was deleted from array of parties vide order dated 17.02.2024 and thus, there is only one Defendant in the present matter.
3. Defendant No.2, the agent, who was deleted from the array of parties has been referred to as erstwhile Defendant in the present judgment.
CASE OF THE PLAINTIFF AS SET UP IN THE PLAINT
4. Brief facts of the case as stated by the Plaintiff in the plaint are that:
a) Plaintiff worked in different kinds of areas and enjoyed high status and had held higher positions in State Public Sector Enterprises, Central Public Sector Enterprises and Corporate world etc. He, along with his wife, was duly insured by his employer and NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 2 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:46:25 +0530 had never had any major illness for which claim was made by him or his wife.
b) Plaintiff purchased a health policy bearing No.30582932201600 for the period covering 2016-17 from the Defendant upon representation of erstwhile Defendant No 2 that their claims, if any, would be honored as and when need arises.
The policy covered the Plaintiff as well as his wife Mrs. Pankaj Mani Arora. The policy was valid from 07.09.2016 till 06.09.2017. The name of the Health Insurance Policy was Family First Gold Policy giving coverage of Rs.5 Lakhs plus Rs.15 Lakhs by Max Bupa Life Insurance limited.
c) In the subsequent year, Plaintiff got the Policy renewed in which the policy number was changed to 30582932201701 for the period 2017-18 which was valid from 07.09.2017 to 06.09.2018 which covered the Plaintiff and his wife.
d) The wife of the Plaintiff was subjected to an annual physical health check-up on 21.04.2018 at the Express Clinic which was conducted on behalf of Defendant and all her bodily functions in the said test came out normal including her renal function and this was done prior to inception of current policy where reports were submitted to Defendant by the said clinic.
NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 3 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:46:34 +0530
e) After the health check-up, Plaintiff got the Health Insurance Policy renewed on 07.09.2018 in which the policy number was changed to 305829302201802 for the period 2018-19 which was valid from 07.09.2018 to 06.09.2019 which covered the Plaintiff and his wife.
f) After 4 months of renewal of the policy on 15.01.2019, the wife of the Plaintiff was diagnosed with Carcinoma Breast (Breast Cancer) and was advised to get the same operated. A day prior to her admission into the hospital for operation, an intimation was given to Defendant on 22.01.2019 which got approved through e- mail on the same day.
g) The Plaintiff had spent a sum of Rs.64,850/- as pre- hospitalization expenses on consultation and laboratory tests etc. before getting admission and this amount was to be reimbursed by the Defendant.
h) On 23.01.2019, Plaintiff's wife Mrs. Pankaj Mani Arora was admitted to Apollo Hospital, Sarita Vihar, New Delhi. After that, Mrs. Pankaj Mani Arora, i.e. Plaintiff's wife, was operated upon and the operation went successful.
i) Plaintiff's wife was discharged on 25.01.2019 at about 9.30 a.m. Payment of the hospital bill was to be made by the Defendant and they were requested to do so. Late in the afternoon, NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 4 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:46:43 +0530 representative from the Defendant's side visited the Plaintiff and his wife and it was told to them that the hospital records suggested that the patient had a solitary kidney. Representative present on the spot misrepresented that if it was given in writing by the Plaintiff that patient had solitary kidney to match hospital records then only the cashless facility would be extended to him and under misguidance, duress and coercion, the Plaintiff gave such statement unknowingly that the same would be used by Defendant as an advantage later in time.
j) In the evening after 9 p.m., it was informed to Plaintiff that the cashless facility was rejected, and he had to bear the bill of hospital on his own because of the reason that Mrs. Pankaj Mani Arora i.e. Plaintiff's wife was having "solitary kidney since 1995"
which amounts to hiding of material facts. Vide letter dated 27.01.2019, Plaintiff's policy was cancelled by Defendant and reason cited was non-disclosure of material facts such as history of solitary kidney since birth and cancelation as per clause 3 of the policy terms and conditions.
k) By cancelling the policy for the reason of misrepresentation being wrong and bad in law as rejection of claim and cancellation of policy resulted in the Plaintiff and his wife being forced into a position that they could not get insurance done from any other insurance company as his wife is a known as cancer patient and no other company would insure her. The cancellation of policy due to NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 5 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:46:50 +0530 the reasons cited by the Defendant are wrong and bad in law as solitary kidney of his wife has nothing to do with the disease she had suffered and even all her tests had come out normal as conducted by the panel doctor of the Defendant, therefore, there was no misrepresentation or concealment of fact as the wife of the Plaintiff was having perfectly normal bodily functions (including renal) not only before the inception of the policy, but till the day, she diagnosed with Breast cancer during the third renewal (2018- 2019) of the policy from Maxbupa(the erstwhile name of the Defendant).
l) According to the operating doctors of Apollo Hospital, Sarita Vihar, New Delhi in which the Plaintiff's wife was operated, Carcinoma Breast (Breast Cancer) had no relation/connection with solitary kidney, therefore, solitary kidney was not the reason for Carcinoma Breast (Breast Cancer).
m) Plaintiff issued a legal notice to the Defendant to pay a sum of Rs.8,46,186/- which included Hospital Main bill of Rs.4,78,397/-, Pre-hospitalization charges amounting to Rs.64,850/- and Post Hospitalization charges of Rs.3,02,939/-
alongwith interest @18% p.a. The Defendant was called upon to pay a sum of Rs.5,00,000/- as compensation for mental agony, torture and harassment suffered by the Plaintiff and also renew the policy a continuous one within 15 days of receipt of the said notice.
NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 6 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:46:57 +0530
n) In addition to the amount being claimed under the present suit, the Plaintiff has sought mandatory as well as permanent injunction against the Defendant by seeking directions against Defendant to offer policy on the same terms and conditions as was offered as the wife of Plaintiff is a known cancer patient and they would not be insured by any other insurance company after disclosing this fact which would leave Plaintiff and his wife without any medical cover resulting in irreparable loss and injury due to the acts and omission by the Defendant purposely done to deny cover of insurance to the Plaintiff and his wife.
o) The Plaintiff preferred Pre-litigation/Pre-Institution Mediation before the Competent Authority, i.e. SEDLSA, on 25.01.2021, however Defendant did not appear before the Competent Authority. Furthermore, the Non-Starter Report for the Pre-Institution Mediation was issued by the Competent Authority, SEDLSA, dated 06.04.2021.
5. Hence, the present suit was filed.
CASE OF THE DEFENDANT AS SET UP IN THE WRITTEN STATEMENT
6. Brief facts of the case as stated by the Defendant in the Written Statement are that:
NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 7 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:47:06 +0530
a) The instant suit is false, malicious incorrect and malafide and has been filed by the Plaintiff to avail undue advantage.
b) The Plaintiff, in his endeavour to harass and humiliate the Defendant, concealed the material facts from this court. The Plaintiff is guilty of suppressio veri and suggestio falsi and thus had no right whatsoever to maintain the present suit before this Court. The Plaintiff was aware of his wife's medical condition despite that he had concealed the material and correct facts about her actual health condition and had not approached this Court with clean hands while stating the distorted and incorrect facts before this Court, with malafide intention of misleading this Court.
c) Plaintiff had withheld material information and knowingly and deliberately suppressed at the time of applying for the subject policy in the Proposal Form that this wife had "solitary kidney since 1995". Thus, there was willful concealment on part of the Plaintiff, and he had no right to seek benefits from the insurance policy. Accordingly, no rights could be retrieved, enforced or could be based upon the insurance policy therefore, the prayers of the Plaintiff based on the Insurance policy are not maintainable and cannot be enforced.
d) Defendant has also referred to case law / judgments relied upon by the Defendant and as per rule of pleadings, the case law is not to be cited/pleaded. The relevant case law as mentioned in NEERA CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 8 of 56 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:47:21 +0530 Written Statement has not been reproduced and has been dealt while deciding the issues. Non-disclosure that the Plaintiff's wife had solitary kidney for last more than 20 years, i.e. prior to opting for the policy amounts to concealment of material facts and it is not for the proposer to determine whether information sought is material for the purpose of policy or not.
e) Defendant had acted in terms of Insurance policy and not beyond. The Plaintiff knew that he had been dishonest in the Proposal Form and had concealed material information while receiving the policy. Thus, it could not have come as a shock or surprise for the Plaintiff that his policy was cancelled or that he was not granted reimbursement from the Defendant. Since the act of concealment and suppression was already known to the Plaintiff, and he knew that he was guilty of suppression, no mental torture, agony or pain can be invoked by him. This is a case where the maxim of "volenti non fit injuria" applies which states that "to a willing person, it is not a wrong." This legal maxim holds that a person who knowingly and voluntarily risks danger cannot recover for any resulting injury. Therefore, the Plaintiff is also not liable for any compensation for any alleged injury caused by his own mistake.
f) It is a settled proposition of law that insurance is a contract of utmost good faith which was breached by the Plaintiff by not providing correct information in the Proposal Form and thereby misleading the Defendant to issue the policy by concealing and NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 9 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:47:27 +0530 suppressing of the above material fact. It was bounden duty of the Plaintiff to disclose the true and correct medical history about the all-insured persons to enable the Defendant to underwrite the risk cover.
g) Insurance Policy is also a contract between insurer and the insured. This contract is a swell governed by the principles of Indian Contract law as such is equally binding over the parties to contract. But for a contract to be valid and effective and binding, in terms of the Indian Contract Act, it must be executed with free consent of the parties competent to contract, for a lawful consideration and lawful object. However, in this case the consent of the Defendant was duly influenced by the Plaintiff by misrepresenting the correct facts about his medical health condition in the Proposal Form. In view of the same, the policy of insurance is a contract voidable at the option of the Defendants as such nothing is due and payable to the Plaintiff. As such, the present suit is also not maintainable.
h) The main spirit and object of the insurance is to meet the risk of uncertainty of the Insured by the Insurer during the term the Policy. Hence, it is the statutory duty of the proposer under the Contract of Insurance to disclose all material facts pertaining to status of his/her health including pre-existing medical condition at the time of submitting the Proposal Form as required under NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 10 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:47:34 +0530 Regulation 2 (1) (d) of the Insurance Regulatory & Development Authority (Protection of Policy holder's Interest) Regulation, 2002.
i) This is serious non-disclosure of the material facts, which is a violation of the terms and conditions of the insurance policy, the insurance being a contract of utmost good faith, the policy holder is duty bound to reveal all relevant facts to the insurer to determine the policy holder's eligibility for availing the health insurance policy.
j) Plaintiff preferred the present suit as a commercial suit in terms of Section 2(1)(e) of the Commercial Courts Act, 2013.
However, it is submitted that the suit is not commercial in nature in terms of the very intent and purpose of the Commercial Courts Act, 2013.
k) The parties to the suit were not transacting, corresponding or dealing in commercial manner or for commercial purposes. The prayers sought by the Plaintiff is not commercial or transactional in nature but personal and private in nature. The subject matter is not commercial in nature.
BRIEF SUBMISSIONS
l) Bhuwan Bhashker, Senior Manager Legal, has filed the Written Statement on behalf of Defendant and he is duly authorized to sign, verify, represent and file present written NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 11 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:47:40 +0530 Statement on behalf of Niva Bupa Health Insurance Company, the Defendant.
m) The name of the Defendant had changed from MAX BUPA HEALTH INSURANCE COMPANY LTD. TO NIVA BUPA HEALTH INSURANCE COMPANY LTD.
n) Plaintiff purchased a Health Insurance Policy and for this purpose, Plaintiff signed and submitted the application/proposal forms for taking health insurance policy from the Defendant. Date of application form is 01.09.2016 and the Plaintiff and his wife were put in as "Insured Persons"
o) The Insurance Regulatory and Development Authority of Notification dated 16 October 2002 issued the Insurance Regulatory and Development Authority (Protection of Policyholders Interests) Regulations 2002.
p) The Defendant referred to following provisions of these regulations as:
"The expression proposal form is defined in Regulation 2(d) thus: -
2(d) -Proposal form means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 12 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:47:48 +0530 order to enable the insurer to decide whether to accept or decline, to undertake the risk, and in the event of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted.
Explanation: -Material for the purpose of these regulations shall mean and include all important, essential and relevant information in the context of underwriting the risk to be covered by the insurer.
Regulation 4 deals with proposals insurance and is in the following terms:
4. Proposal for insurance (1) Except in cases of a marine insurance cover, where current market practices do not insist on a written proposal form, in all cases, a proposal for grant of a cover, either for life business, or for general business, must be evidenced by a written document. It is the duty of an insurer to furnish to insured free of charge, within 30 days of acceptance of the proposal, a copy of the proposal form (2) Forms and documents used in the grant of cover may, depending upon the circumstances of each case, be made available in languages recognized under the Constitution of India (3) In filling the form of proposal, the prospect is to be guided by the provisions of Section 45 of the Act. Any Proposal Form seeking information for grant of life cover may prominently state therein the requirements of Section 45 of the Act.
NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 13 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:47:54 +0530 (4) Where a Proposal Form is not used, the insurer shall record the information obtained orally or in writing and confirm it within a period of 15 days thereof with the proposer and incorporate the information in its cover note or policy. The onus of proof shall rest with the insurer in respect of any information not so recorded, where the insurer claims that the proposer suppressed any material information or provided misleading or false information on any matter material to the grant of a cover."
q) Regulation 2(d) specifically defines the expression -proposal form, as a form which is filled by a proposer for insurance to furnish all material information required by the insurer in respect of a risk. The purpose of the disclosure is to enable the insurer to decide whether to accept or decline to undertake a risk. The disclosures are also intended to enable the insurer, in the event that the risk is accepted, to determine the rates, terms and conditions on which a cover is to granted. The explanation defines the expression material mean and include all important, essential and relevant information for underwriting the risk to be covered by the insurer. Regulation 4(3) stipulates that while filling up the proposal, the proposer is to be guided by the provisions of Section 45. Where a proposal form is not used, the insurer under Regulation 4(4) is to record the information, confirming it within a stipulated period with the proposer and ought to incorporate the information in the cover note or policy. In respect of information, which is not so NEERA CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 14 of 56 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:48:00 +0530 recorded, the onus of proof lies on the insurer who claims that there was a suppression of material information or that the insured provided misleading or false information on any matter that was material to the grant of the cover.
r) On the basis of the information and the contents of the duly signed application/proposal form submitted by the Plaintiff and believing the above said declaration, information and details provided therein including the medical history of the both insured persons to be true, correct and complete in all respect, giving due credence to the underwriting norms of Defendant, issued a Family First Gold Policy, 5 Lacs + 15 Lacs policy bearing No.30582932201600 for individual sum of Rs.5,00,000/- and a floater sum of Rs.15,00,000/- to the plaintiff from 07.09.2016 00:00 am to 06.09.2017 23:59 p.m. The policy was renewed from time to time. The policy of the Plaintiff was renewed for the period from 2017-2018 and 2018-2019. Few medical tests of the Plaintiff and his wife were also conducted.
s) On 22.01.2019, the Defendant received a pre-authorization request for cashless facility from the Apollo Hospital, Sarita Vihar, New Delhi, for the treatment of the wife of the Plaintiff.
t) On the basis of the medical information provided to the Defendant, the Defendant initially approved the cashless request for an amount of Rs.64,850/- for the treatment of wife of the NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 15 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:48:06 +0530 Plaintiff. However, after going through the details submitted along with the pre-authorization request and other documents suggest that liability cannot be established as there is non-disclosure of solitary Kidney known to the insured prior to the policy hence the claim was rejected as per term 11.2.
u) Thereafter, on the day of discharge i.e. on 25.01.2019, the Defendant received the final bill along with Discharge Summary for the approval of the total bill amount. After going through the Discharge Summary and other medical documents, it was found that the Plaintiffs wife was diagnosed with Carcinoma Cancer (Breast cancer) and it was also noted that the Plaintiff 's wife has past history of solitary kidney since last 20 plus years. This fact was not disclosed by Plaintiff in the proposal form therefore the cashless facility was denied by the Defendant for the reason that the Plaintiff has suppressed the above mentioned material facts from the Defendant.
v) Due to the concealment of material facts, the policy benefits request was rejected stating the following reason that the details submitted along with the pre-authorization suggest that Patient has adverse medical condition due to which it is not possible to ascertain the liability at this juncture due to gross non-disclosure of material facts that patient has history of solitary kidney. Hence policy benefits cannot be extended to this case.
NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 16 of 56 Digitally signed by NEERA BHARIHOKE Date:
2025.11.19 15:48:13 +0530 w) That the main spirit and object of insurance is to meet the risk of uncertainty of the Insured by the Insurer during the term of the policy. Hence, it is the statutory duty of proposer under the Contract of Insurance to disclose all material facts pertaining to status of his/her health including pre-existing medical condition for the purpose of evaluating underwriting risk by the Insurer at the time of submitting the Proposal Form as required under Regulation 2 (1) (d) of Insurance Regulatory & Development Authority (Protection of Policyholder's Interest) Regulations, wherein it clearly defines "Proposal Form".
x) The policy taken by the Plaintiff provides insurance cover to the Plaintiff in case of hospitalization as per the policy terms and conditions subject to the genuineness of the claim. The Plaintiff is required to act as per terms and conditions and is under solemn obligation to reveal each and every past medical history. There was willful concealment by the Plaintiff regarding his wife's solitary kidney for the last 20 years which led to the issuance of the subject policy without proper underwriting.
y) During the underwriting process, the underwriter of the Company evaluates each individual's medical history and takes appropriate action based on the severity and prognosis of the condition (s), upon full assessment of facts. The underwriter has discretion to decide whether the proposed Insured's declared condition presents a future medical risk and its quantum takes a NEERA CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 17 of 56 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:48:20 +0530 decision on whether to accept the risk, decline the risk based on the risk appetite of insurance company as claims in insurance company are paid out of the pool of the funds created out of the receipt of premiums of the policy holder. In case of unacceptable risk that presents a significant risk at the time of underwriting and as a result would cause instability in the pricing or maintenance of an acceptable risk pool, the policy would not have been issued. Non- disclosure and/or suppression and/or misrepresentation of the information that is material to the underwriting decision leads to alteration in the contractual terms.
z) Plaintiff filed the claim form along with the requisite documents with the answering Defendant.
aa) The claim of the Plaintiff was repudiated stating the reason as "Due to gross non-disclosure of the material fact such as history of solitary kidney since birth, the claim stands rejected in accordance with the policy T& C".
bb) After the identification of non-disclosure on the part of the Plaintiff in respect of his wife's past history of solitary kidney, the Defendant issued a notice of cancellation of policy dated 27.01.2019 under the terms and conditions which enumerates the clause of cancellation by the company. Definition 14 of the terms provides that in case of non-disclosure of the information norm the NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 18 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:48:27 +0530 policy shall be void and all premium paid shall be forfeited to the company.
cc) Non-description / non-disclosure / misrepresentation on the part of the Plaintiff has materially affected the decision to underwrite the risk and constrained the Defendant to invoke the rights available to the Defendant as per clause 3 of the policy terms and conditions. Clause 3 reads as follows:
"Without prejudice to the above, we may terminate this policy during the policy period by sending 30 days prior written notice to your address shown in the Schedule of Insurance Certificate without refund of Premium if:
I. You or any Insured Person or any person acting on behalf of either has acted in a dishonest or fraudulent manner under or in relation to this policy; and/or II. You or any insured person has not disclosed the material facts or misrepresented in relation to the Policy; and/or III. You and any insured person has not Co-operated with us.
dd) Definition 14 : Disclosure to Information Norm: The policy shall be void and all premium paid shall be forfeited to the Company, in the event of misrepresentation, misdescription or non-
disclosure of any material facts.
NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 19 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:48:34 +0530 ee) The Defendant received the legal notice dated 14.12.2020 which was sent by Plaintiff and was duly replied on 28.12.2020.
ff) In its para-wise reply, the Defendant has admitted the chronology of facts as stated by the Plaintiff but denied the submissions made by Plaintiff in respect of liability of the Defendant and has relied on the submissions as recorded above.
7. Relying on the said averments, the Defendant has submitted that there is no merit in the present suit, and it deserves to be dismissed.
REPLICATION OF THE PLAINTIFF
8. Replication has been filed by the Plaintiff, wherein the Plaintiff has denied the contents of the Written Statement and reiterated the contents of the plaint by citing some of the portions of Proposal Form as well as of policy.
FRAMING OF ISSUES
9. Vide order dated 17.02.2024, on the pleadings of the parties, the following issues were framed by my learned Predecessor :-
(1) Whether there was material non-disclosure of the pre-existing medical condition of the wife of the plaintiff and whether the defendant was justified in rejecting the claim of the plaintiff and canceling the policy? OPD NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 20 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:48:51 +0530 (2) Subject to decision on issue no. 1, whether the plaintiff is entitled to recover the amount of Rs.10,05,000/- from the defendant with pendente-lite and future interest as claimed? OPP (3) Whether the plaintiff has valued the suit properly for the relief of mandatory injunction and declaration? If not, its effect? OPP (4) Whether the plaintiff is entitled for the relief of declaration and mandatory injunction as prayed? OPP (5) Relief.
10. My predecessor ordered that the onus of Issue No.1 was on the Defendant to which learned Counsel for Defendant agreed that she would lead the evidence first.
DEFENDANT'S EVIDENCE
11. Defendant examined DW-1 Shri Sudhakar Anand on 06.05.2024. He presented his evidence by way of affidavit vide Ex. DW-1/A. He reiterated the contents of the Written Statement and relied upon the following documents: -
i. The Special Power of Attorney valid till 16.01.2024 is Ex. DW-
1/1.
ii. Certificate of Incorporation dt. 05.07.2021 is Mark A. iii. The copy of application/proposal form is Ex.DW-1/2. iv. The insurance certificate alongwith its terms and conditions is Mark B dt. 22.09.2016, Mark C dt. 05.09.201 and Mark D. dt. 05.09.2018.
v. The medical examination report is Ex.DW-1/3.
NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 21 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:48:59 +0530 vi. The letter of authorization of initial approval is Mark E. vii. The denial authorization letter dt. 22.01.2019 is Mark F (colly.). viii. The discharge summary and other medical papers and bills received are Ex.DW-1/4 and Ex.DW-1/5.
ix. The claim form alongwith documents is Ex.DW-1/6 (Colly.). x. The claim repudiation letter dt. 25.01.2019 is Mark G. xi. The letter dated 27.01.2019 notice of cancellation is Mark H (Colly.)
12. DW-1 was cross-examined on 13.05.2024 by learned Counsel for Plaintiff. On the same day, DW-1 was discharged.
13. Defendant also examined DW-2 Shri Rajnesh Deviprasad Mishra on 13.05.2024. He presented his evidence by way of affidavit vide Ex. DW-2/A. He relied upon the following documents: -
a) Copy of Certificate of underwriting is Ex. DW-2/1.
b) Certificate of registration is Ex. DW-2/2.
14. He was also cross examined by learned Counsel for Plaintiff on 07.06.2024 and he was discharged on the same day.
15. Defendant also examined DW-3 Mukesh Choudhary. He brought copy of his ID card as Ex. DW-3/A. Original Authority Letter is Ex. DW- 3/B. He also brought the entire medical records of Mrs. Pankajmani Arora (including request for admission, discharge summary, consent form, high risk consent form, history and physical record, physician assessment for NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 22 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:49:06 +0530 surgery, progress sheet, procedure report, anesthesia record, prescription, patient and family education document, plan of care, nutrition therapy, surgical safety check-list, post-operative care plan, nursing admission record, daily record nursing, clinical chart, ulcer risk record, intraoperative nursing record, recovery nursing record, pathology report, ICU activity card) which are Ex. DW-3/C (Collectively) (running into 19 pages).
16. Defendant's Evidence was closed on 06.11.2024 on the statement of learned Counsel for Defendant and the matter was adjourned for Plaintiff's Evidence.
PLAINTIFF'S EVIDENCE
17. On 14.01.2025, Plaintiff Vipin Arora examined himself as PW-1. He presented his evidence by way of affidavit vide Ex. PW-1/A. He reiterated the contents of the plaint and relied upon the following documents: -
(1) The physical health check-up reports are Ex. PW-1/A (Collectively).
(2) The hospital bills are Ex. PW-1/B (Collectively).
(3) Copy of the e-mail dated Jan 27 is Ex. PW-1/C. (4) Certificate u/s 65-B Evidence Act is Ex. PW-1/D. NEERA BHARIHOKE Digitally signed by NEERA CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 23 of 56 BHARIHOKE Date: 2025.11.19 15:49:27 +0530
18. It was observed that Ex. PW-1/A (Colly.) were de-exhibited and had been allowed to be tendered as Mark PW-1/A with liberty to Plaintiff to summon the relevant record/witness.
19. PW-1 was cross-examined by learned Counsel for Defendant on 31.01.2025 and discharged on 15.10.2025.
20. Plaintiff wanted to examine one more witness, namely Dr. Ms. Ramesh Sarin, in respect of medical record present on court records but on 16.04.2025, learned counsel for Plaintiff submitted that Plaintiff did not want to examine Dr. Ms. Ramesh Sarin.
21. Plaintiff also wanted to examine witness from Express Clinic to prove the medical test reports of the wife of the Plaintiff on the basis of which the Defendant had renewed the insurance policy of wife of Defendant. However, the said clinic could not be served because of having left its address. The Plaintiff gave notice to the Defendant to produce the original of the record pertaining to the said witness. However, learned counsel for Defendant submitted that Defendant filed all documents pertaining to the subject matter of the present suit on Court Record. It was also submitted by learned Counsel for Defendant that no medical tests are conducted at the stage of renewal of policy. She was directed to file an affidavit of complete procedure adopted at the time of renewal of policy vide order dated 18.07.2025.
NEERA BHARIHOKE Digitally signed CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 24 of 56 by NEERA BHARIHOKE Date: 2025.11.19 15:49:33 +0530
22. Vide order dated 02.09.2025, it was recorded that evidence of both sides stood concluded and the matter was adjourned for final arguments which were heard in part on 06.10.2025 and were concluded on 27.10. 2025. Learned Counsel for Defendant also supplied copy of fact sheet of life with a single kidney (medical literature) on 27.10. 2025 during the course of final arguments.
FINAL ARGUMENTS
23. I have heard the rival submissions of the parties and perused the record very carefully.
24. Learned Counsel for Plaintiff argued that the plaintiff had duly furnished all the information sought by the agent in the Proposal Form and referred to its various columns as well as the information duly filled in the relevant columns asking about the medical condition/history of the plaintiff as well as his wife. She argued that all the information was supplied to the agent who was earlier impleaded as Defendant No.2 and that the Defendant had wrongly rejected the claim of the Plaintiff raised in respect of the medical treatment of his wife who was also insured by the same policy. It has been argued on behalf of Plaintiff that wife of Plaintiff was having 'solitary kidney' since 1995 and cancelling the policy for the same reason by the Defendant was wrong as having a solitary kidney is neither a medical condition nor a medical disease which the Plaintiff or his wife was required to disclose at the time of filling up of the proposal form and that nothing material was concealed from the NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 25 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:49:44 +0530 Defendant. It was also argued on behalf of Plaintiff that act of the Defendant in wrongly rejecting the claim of the Plaintiff by claiming concealing of material fact has resulted in the Plaintiff and his wife not being in a position to get insurance done from any other insurance company as now wife of Plaintiff is known as a cancer patient and no other company would insure her. Learned Counsel for Plaintiff also argued that on 21.04.2018, the wife of the Plaintiff was subject to an annual physical health checkup at the Express Clinic which was conducted on behalf of Defendant and all her bodily functions in the set test came out normal including renal functions and this was done prior to renewal of the policy under which the Plaintiff raised the claim in question.
25. Per contra, learned Counsel for Defendant submitted that no medical tests of wife of Plaintiff were conducted at the stage of renewal of policy. Learned Counsel for Defendant argued that the nondisclosure by the Plaintiff about his wife having only one kidney has violated the principle of uberrima fidei i.e. the doctrine of utmost faith and that non- disclosure of the said fact led to cancellation and rejection of the claim raised by the Plaintiff as well as the policy in question in terms of provisions of the policy as well as the notification dated 16th October 2002 issued by Insurance Regulatory and Development Authority of India. It was argued on behalf of Defendant that the cancellation letter was likely issued as per the terms and conditions of the policy in question and what is material fact is to be decided by the insurer and not by the NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 26 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:50:03 +0530 insured. She prayed for dismissal of the present suit being devoid of merits and being based on concealment.
26. In rebuttal, learned counsel for Plaintiff argued that there was no concealment of any fact by the Plaintiff much less the concealment of any material fact. She also argued that even otherwise, it is a settled law that non-disclosure of a fact in Proposal Form which has no connection to the disease or medical condition for which the claim was raised cannot be the basis for rejection of the claim. Learned Counsel for Plaintiff prayed for allowing the claims of the Plaintiff.
FINDINGS
27. My issue-wise findings are given as under: -
Issue No.1 : Whether there was material non-disclosure of the pre- existing medical condition of the wife of the plaintiff and whether the defendant was justified in rejecting the claim of the plaintiff and canceling the policy?
The onus to prove this Issue was on the Defendant.
28. The following facts are not disputed by either side:
Plaintiff purchased a health policy from Defendant which was a family policy governing the Plaintiff and his wife, namely Ms.Pankaj Mani Arora, in the year 2016-2017.
NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 27 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:50:10 +0530 The policy was renewed from time to time and was lastly renewed on 07.09.2018.
After about four months from 07.09.2018, wife of Plaintiff was diagnosed with Carcinoma Breast (breast cancer), and she was advised operation.
She informed Defendant about the same on 22.01.2019 i.e. one day prior to her admission, and approval of Defendant was received on e-mail.
Plaintiff spent Rs. 64,850/- on the pre-hospitalization expenses. On 23.01.2019, the wife of Plaintiff was admitted in Apollo Hospital, Sarita Vihar and she was successfully operated and was discharged on 25.01.2019.
Payment of the hospital bill was to be borne by Defendant in terms of the policy and accordingly, the Defendant was requested. However, Plaintiff was informed that the cashless facility was rejected and he had to bear the bill of the hospital on his own because his wife had had solitary kidney since 1995. Vide letter dated 27.01.2019, the policy of the Plaintiff was cancelled by the Defendant and the reason cited was non- disclosure of material facts such as history of solitary kidney since birth and cancellation as per Clause 3 of the Policy's terms and conditions. The claim of the Plaintiff was repudiated stating the reason as "Due to gross non-disclosure of the material fact such as history of solitary kidney since birth, the claim stands rejected in accordance with the policy T& C".
NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 28 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:50:17 +0530 Definition 14 of the terms and conditions of policy provides that in case of non-disclosure of the information norm, the policy shall be void and all premium paid shall be forfeited to the company.
29. Defendant has submitted that Plaintiff withheld material information and knowingly and deliberately suppressed at the time of applying for the subject policy in the Proposal Form that this wife had "solitary kidney since 1995". Thus, there was willful concealment on part of the Plaintiff, and he had no right to seek benefits from the insurance policy. Defendant has submitted that non-description/non-disclosure/ misrepresentation on the part of the Plaintiff materially affected the decision to underwrite the risk and constrained the Defendant to invoke the rights available to the Defendant as per clause 3 of the policy terms and conditions.
30. The Defendant also stated that Plaintiff was mandated to inform about pre-existing medical condition of his wife at the time of submitting the Proposal Form, Ex. DW-1/2, as required under Regulation 2 (1) (d) of the Insurance Regulatory & Development Authority (Protection of Policy holder's Interest) Regulation, 2002 (Hereinafter referred to as 'Regulations').
31. As per these Regulations, Proposal Form means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer NEERA CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 29 of 56 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:50:23 +0530 to decide whether to accept or decline to undertake the risk, and in the event of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted.
32. Material is defined as meaning and including all important, essential and relevant information in the context of underwriting the risk to be covered by the insurer.
33. Since the Defendant rejected the claim of the Plaintiff by stating that there was non-disclosure of the pre-existing medical condition of the wife of the Plaintiff, for determining the correctness of that, the documents Proposal Form and the Policy need to be examined. Further the Plaintiff has also relied on these two documents in support of his submission that the Plaintiff had not concealed any information while filling in the proposal form and had furnished all the information as sought under the proposal form. During his cross-examination, the Plaintiff, PW-1, relied on Column 6 in the Proposal Form.
34. Column 6 in the Proposal Form, Ex. DW-1/2, under the head 'Medical History' contains 4 questions for which the proposer i.e. Plaintiff herein, was required to reply. The questions are reproduced herein:
Within the last 2 years, have you consulted a doctor or a healthcare professional?
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Do you take tablets, medicines or drugs on a regular basis? Within the last three months, have you experienced any health medical conditions which you/proposed insured person have/has seen a doctor for?
35. For all these questions, the Plaintiff head appropriately replied. There was no question under the medical history column which prompted the Plaintiff to submit any additional information of such kind. None of the questions cover any question in respect of health or medical condition or ailment or injury or treatment of the proposer or proposed insured persons for a period prior to seven years from the date of applying for insurance under the Proposal Form. It is not the case of either parties that wife of Plaintiff was taking tablets, medicines or drugs on a regular basis on account of having a solitary Kidney. There is no question under the column 'Medical History' in the Proposal Form, Ex. DW-1/2 which requires/required the Plaintiff to submit any other information. Rather, Column 7 of Proposal Form, Ex. DW-1/2 under the head 'Additional Information' is required to be filled by the proposer, if answer to any of the above 4 questions would have been 'yes' and since the Plaintiff had not replied as 'yes' to any of these 4 questions, the Plaintiff was not required to furnish any additional information under the Proposal Form, Ex. DW-1/2. Therefore, it cannot be said that the Plaintiff had concealed NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 31 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:50:40 +0530 any information, much less material information, from the Defendant at the time of filling of Proposal Form, Ex. DW-1/2.
36. Defendant has submitted that insurance is a contract of utmost good faith which was breached by the Plaintiff by not providing correct information in the Proposal Form and thereby misleading the Defendant to issue the policy by concealing and suppressing of the above material fact and that it was the bounden duty of the Plaintiff to disclose the true and correct medical history about the all-insured persons to enable the Defendant to underwrite the risk cover. The Defendant has relied on the column 'Caution' wherein it is stated that the proposer is obliged to make a full and frank disclosure of all facts material to the assumption of risk in relation to the proposal and every person proposed to be insured that would influence the decision of insurer to issue policy or the terms on which it is issued.
37. It has been argued on behalf of the Defendant that which fact is material has to be decided by the insurance company and not by the proposer. The Defendant has relied on the observations of Hon'ble Supreme Court in the matter Satwant Kaur Sandhu Vs. New India Assurance Company Limited, (2009) 8SCC 316 and Life Insurance Corporation of India Vs. Manish Sharma, Civil Appeal No. 3944 of 2019 wherein it has been held that any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk or which fact goes to the root of the contract of insurance and has a bearing on the risk involved would be NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 32 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:50:47 +0530 'material fact' which the insurer is obliged to disclose. It was also observed that when information on specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. Learned Counsel for Defendant argued that non-disclosure that the wife of Plaintiff had/has solitary kidney for last more than 20 years prior to opting for the policy amounts to concealment of material fact.
38. It is noticed that as per these observations, when information on specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. The Plaintiff answered in the Proposal Form, Ex. DW-1/2, the answer to all the questions which were mentioned on the aspects mentioned therein and it is clear that information on the specific aspect of kidney of wife of Plaintiff was not asked for.
39. It is to be examined if non-disclosure of wife of Plaintiff having solitary kidney amounts to any 'material fact' which would influence the judgment of Defendant in fixing the premium or determining whether Defendant would like to accept the risk or which fact goes to the root of the contract of insurance and has a bearing on the risk involved.
40. During cross examination of PW-1, i.e. Plaintiff, a question was put that in the proposal form there is a column where the proposer had to NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 33 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:50:59 +0530 answer whether the insured is suffering from any medical condition or any area of body is affected or underwent treatment and in the said column did the Plaintiff write in form that his wife had solitary kidney. PW-1 replied that it was not correct that his wife had solitary kidney. He further stated that she had two kidneys out of which one is normal in size and the other is very small. Another question was put to PW-1 in response to the above answer if he had informed the agent about the said condition and PW-1 answered that there was no such column where he was required to disclose that.
41. The submission made by PW-1 in this regard are correct as recorded above in paragraph 34 dealing with column under the head of 'Medical History' and the four questions contained therein.
42. PW-1 had stated that at the time of filing the proposal form, he had stated to the agent and the insurance company that he had an ankle problem and underwent treatment and surgery for the same. He volunteered that he had disclosed it to the doctor who was examining him. Another question was put to him that when he had informed about the said ankle problem or having undergone treatment and surgery for the same, why he had not informed the agent about his wife having two kidneys out of which one is normal in size and the other is very small. PW-1 stated that only he was examined and his wife was not examined and volunteered that as per policy, only he had to be examined medically and not his wife. He denied the suggestion because he had told agent and the doctor only about his ailment, therefore only, he was medically NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 34 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:51:06 +0530 examined, and his wife was not examined. He also denied the suggestion that the insurance company gets the medical examination of all the insured persons under the policy, especially those for whom the disclosures are made by the proposer. He volunteered that he was specifically told that under this policy, only male member would be medically examined and not the lady member. He denied the suggestion that he was stating wrongly.
43. On perusal of the Proposal Form, Ex. DW-1/2, the submissions made by PW-1 is supported by the column "Insurance Advisor's Report' which has questions only about the health of proposer and not about the other persons proposed to be insured like 'Does the proposer have any physical deformity/defect of medical retardation?' and 'What is the proposer's state of health at the time of making of this proposal form?'. This is also corroborated by cross-examination of DW-1, the Senior Manager Legal of Defendant who stated that tests were conducted only for the Plaintiff which are mentioned in Ex. DW-1/3 and no tests were conducted for wife of Plaintiff. DW-2 also admitted that no tests were conducted for wife of Plaintiff.
44. The statement of PW-1 that he had disclosed about having an ankle problem and his having undergone treatment and surgery for the same to the doctor who was examining him and not to the agent is also correct since Proposal Form, Ex. DW-1/2 does not mention about the same and it finds mention in the 'Medical Examination Report', Ex, DW-1/3 under the column 'Opinion of the Medical Examiner' including that Plaintiff NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 35 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:51:12 +0530 had ankle plate implanted in 1995. The date of filling of Proposal Form is 02.06.2026 and date of Medical Examination Report', Ex, DW-1/3, is 03.06.2016 and it has columns of information pertaining only to the Proposer by referring to him as Customer and does not have any column of other persons proposed to be insured alongwith the Customer/proposer. It contains multiple questions about the customer, Plaintiff herein, but it has only one question about spouse of customer i.e. if spouse of customer had been tested positive or was under treatment for HIV/AIDS, Sexually Transmitted Diseases (e.g. Syphilis, Gonorrhea etc.) In absence of any question pertaining to kidney of wife of Plaintiff in the Proposal Form, Ex, DW-1/2 or Medical Examination Report, Ex, DW-1/3, the Plaintiff was neither required nor had any occasion to mention the same. Therefore, Plaintiff has proved that there was no concealment on part of Plaintiff under the Proposal Form, Ex, DW-1/2 or Medical Examination Report, Ex, DW-1/3.
45. As regards the doctrine of utmost good faith, it needs to be seen if condition of wife of Plaintiff having two kidneys, out of which one is normal in size and the other is very small, can be stated to be suffering from any pre-existing disease. Prior to that, it is important to refer to the relevant portions of the policy in question since PW-1 has also referred and relied on the same during his cross-examination though he referred to those sections of the policy as sections of Proposal Form i.e. Definition no. 26 and 45.
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46. Under the policy document of the Plaintiff and his wife, in the 'Terms and Conditions of the Policy', at point no. 4, the major exclusions of the policy are mentioned and one of them is 'pre-existing disease' under which the benefits will not be available. It reads as follows:
"We shall not be liable under this policy for any claim in connection with or in respect of the following:
Pre-existing disease.'
47. Therefore, the liability of the Defendant has been excluded by this term as regards the claim in connection with or in respect of any pre- existing disease. Deeming that the condition of having two kidneys out of which one is normal in size and the other is very small since 20 years prior to 2016 is pre-existing disease of wife of Plaintiff, the claim of Plaintiff under the Policy was not raised in connection with or in respect of any pre-existing disease since the claim was raised for surgery of wife of Plaintiff for breast cancer. Therefore, the claim raised by Plaintiff is not covered by exclusions of the policy.
48. Terms and Conditions as given in Section 4 under the heading 'Interpretations and Definitions' define pre-existing disease as Def. 45 which reads as follows:
"Pre-existing Disease means any condition, ailment or injury or related condition(s) for which the insured person had signs or symptoms, and/or were diagnosed, and/or received medical advice/treatment, within 48 months, prior to the first policy issued by us (Defendant)."
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49. It has not been disputed by the Defendant that condition of wife of Plaintiff having two kidneys, out of which one is normal in size and the other is very small, was in existence for more than 20 years prior to the first policy issued by the Defendant in 2016 and is thus much prior to 48 months from the date of issuance of first policy and is therefore not covered under the expression pre-existing disease even as per the definition of pre-existing disease under the terms and conditions of the Policy.
50. Under Clause 3 of the terms and conditions of the Policy, the grounds are stated under which the Policy is liable to be cancelled by the Defendant. Clause 3 reads as follows:
"Without prejudice to the above, we may terminate this policy during the policy period by sending 30 days prior written notice to your address shown in the Schedule of Insurance Certificate without refund of Premium if:
I. You or any Insured Person or any person acting on behalf of either has acted in a dishonest or fraudulent manner under or in relation to this policy; and/or II. You or any insured person has not disclosed the material facts or misrepresented in relation to the Policy; and/or III. You and any insured person has not Co-operated with us.
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51. The Defendant issued Notice of Cancellation on 27.01.2019, Ex. PW-1/C, by submitting that during processing of Claim of Plaintiff, it had been noticed that there had been a non-disclosure of pre-existing illness/medical condition of wife of Plaintiff having solitary kidney since 1995 at the time of applying for health insurance policy with the Defendant and that the said non-description/non-disclosure /misrepresentation on part of Plaintiff had materially affected the decision of Defendant to underwrite the risk.
52. The term and condition of the policy define illness at Definition No. 26 which reads as:
"Def. 26. Illness means sickness or a disease or pathological condition leading to the impairment of normal physiological function which manifests itself during the policy. And requires medical treatment.
Acute Condition: acute condition is the disease, illness or injury that is likely to respond quickly to treatment which aims to return the person to his or her state of health, immediately before suffering the disease/illness/injury which leads to full recovery.
Chronic condition: a chronic condition is defined as a disease, illness or injury that has one or more of the following characteristics:- It needs ongoing or long term monitoring through consultations, examinations, checkups, and/or tests- It needs ongoing or long term Control or relief of symptoms-it requires your rehabilitation or for you to be specially trained to cope with it- It continues indefinitely- It comes back or is likely to come back."
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53. The condition of wife of Plaintiff having two kidneys, out of which one is normal in size and the other is very small is not covered under the definition of illness and therefore, the Defendant had wrongly mentioned the reason of cancellation of Policy to be concealment of wife of Plaintiff suffering from pre-existing illness and nothing has been brought on record that due to the wife of Plaintiff having two kidneys, out of which one is normal in size and the other is very small, she was suffering from acute or chronic condition illness as defined in the Policy prior to execution of Proposal Form by Plaintiff.
54. The defence of the Defendant is that Plaintiff had withheld material information and knowingly and deliberately suppressed at the time of applying for the subject policy in the Proposal Form that this wife had "solitary kidney since 1995". It is required to see if having solitary kidney or wife of Plaintiff having two kidneys, out of which one is normal in size and the other is very small is a disease at all before categorizing it to be pre-existing disease.
55. It has already been held that under the terms of the policy, it was not covered under the expression 'Pre-existing Disease as defined under the terms and conditions of the Policy.
56. The Plaintiff did not produce any medical evidence or witness to prove that but out of two witnesses examined by the Defendant, one witness i.e. DW-2 was a Doctor as well as agent and the other was Senior Manager Legal of Defendant who deposed as DW-1. During cross-
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57. DW-1 was asked if he could define as to what he meant by pre- existing disease and he answered that it meant those health problems which existed before issuance of policy. DW-1 was further asked if there was any difference between Pre-existing disease and Pre-existing condition to which he answered that Defendant is concerned only with pre-existing health conditions. He was asked to show in the proposal form or the policy document that the pre-existing health conditions were not covered to which he answered that the existing health conditions are subjective to underwriting decisions and as per company underwriting guidelines.
58. DW-1 was asked to show in the proposal form where was the requirement of disclosing of pre-existing condition and he answered that in para 6 of the proposal form, Defendant had asked limited questions. As discussed in Para No.34 of this judgment, those questions do not pertain to pre-existing condition of proposer.
59. On being asked as to when the condition of solitary kidney of wife of Plaintiff came to the knowledge of the Defendant, DW-1 stated that the NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 41 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:51:56 +0530 said condition came to its knowledge when the Plaintiff submitted the medical documents for reimbursement of expenses in respect of the surgery of his wife. Another question was put to DW-1 if he had any proof of Plaintiff's wife taking any medical treatment for the solitary kidney, he answered as 'no'.
60. A question was put to DW-1 that since solitary kidney is a condition and not a disease therefore, it was not required to be disclosed as per the proposal form and therefore, there was no column for the same in the proposal form. DW-1 stated that solitary condition is a medical condition which is material for underwriting of policy. In the proposal form, it is not possible to ask every type of ailment which may be present in human body and that is why the Defendant had asked to declare medical conditions that the customer is aware of and the company should know. DW-1 was asked that he had stated in his affidavit of evidence that the wife of Plaintiff had solitary kidney since 20 years and would it be correct to say that she was living normal life since last 20 years and enjoying life as a normal person would do to which DW-1 replied that he was not aware of any other health condition of wife of Plaintiff. Another question was put to him that since the wife of Plaintiff was enjoying and leading a normal life therefore the condition of solitary kidney would not qualify as a pre-existing disease to which DW-1 replied that living a normal life with a medical condition does not allow the customer to conceal any material fact.
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61. Therefore, it is noticed that the Defendant has not disputed that the wife of the Plaintiff had solitary kidney since 20 years prior to filling up the proposal form and that DW-1 had referred to condition of wife of Plaintiff having solitary kidney as a pre-existing condition and not as a pre-existing disease during his cross-examination and also stated that Defendant had concern with pre-existing condition of Plaintiff's wife whereas under the policy, the exclusion clause mentions pre-existing disease.
62. The Defendant examined Rajneesh Deviprasad Mishra as DW-2 who was working as Assistant Vice President- Underwriter, claims, UW and products with the Defendant on the date of his examination in chief. He deposed that he had BAMS Degree from Maharashtra University of Health and Sciences, Nashik. He further deposed that in the Proposal Form, the Plaintiff and his wife had not disclosed any pre-existing disease or the history of Solitary kidney and if they would have disclosed, then the Defendant Company would have got health check-up reports or verification call conducted.
63. DW-2 further deposed that if a person has only one kidney, that kidney is called a solitary kidney. This condition is different from having a solitary functioning kidney, in which one has two kidneys and only one is functioning. He stated that the three main causes of a solitary kidney are:
(i) Birth defects:
Some people are born with only one kidney because the other kidney never developed- a condition known as renal agenesis, NEERA CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 43 of 56 BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:52:09 +0530 NIH external link or kidney agenesis. A solitary kidney is sometimes diagnosed before birth by a routine prenatal ultrasound NIH external link; sometimes it is diagnosed later in life after an x-ray NIH external link, an ultrasound, or a surgery for an unrelated clinical condition. Some people are born with one normal kidney and another abnormal, non-functioning kidney that may eventually shrink so it is no longer visible on x-ray or ultrasound before or sometime after birth. That condition is known as kidney dysplasia.
(ii) Surgical removal of a kidney
(iii) Kidney Donation
64. During his cross-examination, DW-2 was also asked to explain the differences between a pre-existing disease and a pre-existing condition and he stated that a condition may also be a disease, but a condition may not necessarily manifest as a disease. The question was put to DW-2 if it could be said that wife of the Plaintiff was not suffering from any pre- existing disease but from a pre-existing condition which did not affect her medically and her body functions were same as of a normal human being. He answered that he could not comment on that and proceeded to say that one can be normal even with the pre-existing condition.
65. DW-2 was asked that he had mentioned three causes of solitary kidney and if he could tell in which category the wife of the Plaintiff fell. DW-2 answered that she fell under category 'Birth Defect." Since DW-2 was also an underwriter, a question was put to him if a person with solitary kidney as birth defect be entitled for medical insurance policy, NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 44 of 56 Digitally signed by NEERA BHARIHOKE Date:
2025.11.19 15:52:16 +0530 instead of answering to the same, he answered that Plaintiff was not entitled for the product which she opted for.
66. A question was put to DW-2 if he had gone through the medical documents of wife of the Plaintiff post operation when the claim was submitted and he answered in affirmative. He was asked if there was any sign of damage to the wife of the Plaintiff due to the solitary kidney and he answered in affirmative and stated that it was mentioned in the report that "left single kidney compensatory hypertrophy". He explained that this shows extra load and deterioration on the kidney because there is a solitary kidney.
67. DW-2 admitted that in the proposal form, there is no specific question seeking information of the pre-existing medical condition which does not affect the body of the proposer. He stated that there is a generic question to disclose any other condition than the specific questions asked in the Form.
68. Another question was put to DW-2 if he could point out any medical document which stated that a solitary kidney since birth would qualify as a disease. DW-2 stated that he could not and there was no document which stated that solitary kidney was a disease. He also stated that there are documents and medical literature emphasizing that solitary kidney has high chances of developing kidney disease, hypertension and proteinuria etc. He denied the suggestion that there was no non-disclosure NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 45 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:52:21 +0530 by the Plaintiff as the condition of solitary kidney was not asked for in the proposal form.
69. Therefore, it is noticed that the witness, having medical knowledge i.e. DW-2, could not bring to light anything to show that having a solitary kidney since birth amounts to a disease. DW-2 categorically stated that solitary kidney is categorized as a Birth Defect. A Birth Defect is a congenital condition which is a structural or functional anomaly that is present at birth. No question was put to PW-1 that because of this birth defect, his wife was undergoing treatment or not leading a normal healthy life or had medical/health problems since birth or thereafter. Therefore, the Defendant failed to establish that solitary kidney is a disease and therefore, non-mentioning of the same in the Proposal Form or otherwise by the Plaintiff does not lead to any concealment of his wife having any disease or pre-existing disease.
70. Rather the Policy in Def. 6 of Terms and Conditions of Policy itself covers the condition of wife of Plaintiff having solitary kidney or having two kidneys out of which one is normal in size and the other is very small since 20 years. Def. 6 of Terms and Conditions of Policy reads as follows:
"Def. 6. Congenital Anomaly refers to a condition(s) which is present since birth, and which is abnormal with reference to form, structure or position:
Internal Congenital Anomaly- Congenital Anomaly which is not in the visible and accessible parts of the body. External Congenital Anomaly: Congenital Anomaly which is in the visible and accessible parts of the body."
NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 46 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:52:28 +0530
71. Therefore, the condition of Plaintiff's wife having solitary kidney or having two kidneys out of which one is normal in size and the other is very small does not amount to any disease and therefore, in view of observations made above, the Plaintiff was not required to nor was there any question in the Proposal Form requiring the Plaintiff to mention about the same. Therefore, Defendant has failed miserably to prove that there was material non-disclosure of the pre-existing medical condition of the wife of the Plaintiff and consequently the Defendant was not justified in rejecting the claim of the Plaintiff and canceling the policy. Therefore, the case law relied upon by Defendant about non-maintainability of the suit on basis of alleged concealment/suppression of material facts or acted fraudulently are not applicable to the facts of the case. Issue No.1 is therefore decided against the Defendant and in favour of Plaintiff and it is held that Wife of Plaintiff having two kidneys out of which one is normal in size and the other is very small does not amount to any disease and therefore not mentioning the same by the Plaintiff does not amount to non-disclosure of the pre-existing medical condition of the wife of the Plaintiff. It is also held that Defendant was not justified in rejecting the claim of the Plaintiff and canceling the policy. Issue No.2 : Subject to decision on issue no. 1, whether the Plaintiff is entitled to recovery the amount of Rs.10,05,000/- from the Defendant with pendente-lite and future interest as claimed?
The onus to prove this Issue was on the Plaintiff.
72. Issue No. 1 has been decided against the Defendant and in favour of Plaintiff. After 4 months of renewal of the policy on 15.01.2019, the wife of the Plaintiff was diagnosed with Carcinoma Breast (Breast NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 47 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:52:36 +0530 Cancer) and was advised to get the same operated. She got the surgery done accordingly.
73. No suggestion or question was put to PW-1 during his cross- examination that wife of Plaintiff had Carcinoma Breast (Breast Cancer) prior to the renewal of policy in September 2018 or that Carcinoma Breast (Breast Cancer) had any relation or correlation with or that the same occurred because of wife of Plaintiff having a solitary kidney.
74. During Cross examination of DW-1, a question was put to him if he had any document or advice to show that the pre-existing condition of the wife resulted in the current disease for which she was operated upon and he stated that he had no such document. DW-1 was asked if the condition of solitary kidney of wife of Plaintiff puts her to any additional risk medically, he stated that he was not aware as this was beyond his expertise. DW-1 was asked if he had any proof that the solitary kidney condition of the wife of the Plaintiff led to the breast cancer for which she underwent surgery and he again replied that he did not have the expertise in this regard and therefore he could not answer the question.
75. A question was put to DW-2, who stated that he is qualified BAMS doctor, if there was any connection between breast cancer suffered by wife of the Plaintiff and her solitary kidney and he stated that there was no direct connection between the breast cancer suffered by the wife of the Plaintiff and her solitary kidney. He proceeded to say that the solitary kidney is relevant during the treatment.
NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 48 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:52:43 +0530
76. Therefore, it is noticed that both the witnesses of Defendant were put questions in respect of correlation of/connection of breast cancer suffered by wife of Plaintiff and her having solitary kidney. DW-1 did not answer because of lack of expertise and DW-2 categorically stated that there was no direct connection between the breast cancer suffered by the wife of the Plaintiff and her solitary kidney.
77. Learned Counsel for Plaintiff argued that solitary kidney was neither material to the risk nor related to the Carcinoma Breast (Breast Cancer) and therefore, Plaintiff is entitled to recover the amount as per the insurance cover under the insurance policy bearing number 305829302201802 which covered the Plaintiff and his wife and which was for the period 2018-19 and was valid from 07.09.2018 to 06.09.2019.
78. Learned Counsel for Plaintiff has relied on following observations of Hon'ble High Court of Delhi in the matter of Pavan Sachdeva vs. The Office of the Insurance Ombudsman and Anr, W.P. (C) 6304/2019, decided on 27.07.2020:
"10. While it is correct that non-disclosure of any material particular or material information can entitle the respondent no. 2 to invalidate the Policy and forfeit the premium, however, the said Clause has to be read in a reasonable manner. In the present case, the petitioner has asserted that he suffered Sarcoidosis in 1982, which is almost 35 years before the insurance Policy was taken by the petitioner. The petitioner has also asserted that this was treated by him taking steroids only for a period of three months and he has not suffered any symptoms thereof thereafter. This fact has not been denied by the respondent no. 2. No dispute has been NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 49 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:52:50 +0530 raised by the respondent no.2 on the fact that the petitioner was completely fine and did not suffer any symptoms from any ailment at the time of taking the Policy or for a reasonable period prior thereto. Therefore, in these facts, it has to be considered whether non-disclosure of this ailment can amount to concealment of material particulars or information from the respondent no. 2."
.....
"21. Coming back to the facts of the present case, the petitioner had suffered with Sarcoidosis in 1982 and it is stated that he was cured of it within three months. It is not the case of the respondent no.2 that he continued to suffer with it even thereafter. The insurance Policy was acquired by the petitioner in 2017, that is 35 years after suffering from the said disease. It cannot, therefore, be held that disclosure of such disease would be a "material information" and the non- disclosure thereof would make the Policy null and void under Clause VIII.1 of the terms and conditions of the Policy or under the general principles applicable to the insurance contracts."
79. Plaintiff has also relied on observations of Hon'ble Supreme Court in the matter of Sulbha Prakash Motegaonkar And Ors. Vs. Life Insurance Corporation of India, 2021 12 SCC 561, where it was held that the concealment of a non-life threatening medical condition by the insured did not justify the repudiation of the insurance claim as the cause of the death was unrelated to the concealed condition.
80. Similar are the observations of Hon'ble Supreme Court in the matter of Om Prakash Ahuja Vs. Reliance General Insurance Co. Ltd. etc., Civil Appeal Nos. 2769-2770 of 2023, Date of Decision 4 th July, 2023, where it has been held that the insurance company was not permitted to raise the plea of non-mentioning of the disease to deny the NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 50 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:52:57 +0530 renewal of insurance policy to the appellant for the period from 07.07.2009 onwards since the order passed by the Hon'ble National Commission was not challenged by the Insurance Company and the Insurance Company had accepted the fact that non-mentioning of the disease from which the deceased wife of the appellant suffered at the time of purchasing the policy was not material as the death was caused from a different disease altogether and both had no relation with each other.
81. In the matter of Dr. A.M. Muraleedharan vs. The Senior Division Manager, Life Insurance Corporation of India and Anr., W.P. (C) 13244/2017, Date of Decision 08.09.2025, Hon'ble High Court of Kerala ruled that insurance claims cannot be arbitrarily denied for unrelated pre- existing conditions. The claim of Petitioner was denied on the basis of pre-existing disease. The insured i.e., the wife of the petitioner, had undergone hernia repair in 2006, which is a procedure to correct hernia, a condition where an organ or tissue protrudes through a weak spot in the surrounding muscle or tissue. The treatment for which the claim was raised and denied, however, was for vesicovaginal fistula, which is a post- operative complication of hysterectomy. Thereby, denial of benefits on the grounds of a hernia repair done, way back in 2006, or on account of hysterectomy which was performed much after subscribing to the policy was held to amount to a great miscarriage of justice. It was also held that:
"20. The right to medical treatment is a right identified under fundamental rights. In fact, once the insured has undergone treatment or a surgical procedure on the expert opinion of the concerned doctor, the insurer cannot deny the claim. Rejection of the claim for the expenses incurred for such treatment availed by NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 51 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:53:04 +0530 the insured amounts to denial of treatment. In Paschim Banga Khet Mazdoor Samithi v. State of West Bengal [1996 (4) SCC 37], medical treatment was held as a fundamental right and denial of the same is violative of Article 21. Here, declining the claim in respect of the treatment undergone amounts to denial of treatment itself. Thereby, there is violation of the right to life provided under Article 21 of the Constitution of India."
82. The reliance of Respondent on section 45 Insurance Act, 1938 was also declined by observing that :
"Moreover, the alleged pre-existed condition (Hernia repair) was neither material to the risk nor related to the present ailment (vesicovaginal fistula). There is nothing to show that there was non-disclosure of pre-existing disease, either fraudulently or with knowledge of its falsity. The conditions under Section 45 are therefore not fulfilled to recall and repudiation of the claim cannot be sustained."
83. In view of the observations made above read in conjunction with case law cited in above paragraphs, the Defendant could not have cancelled the policy, nor could it reject the claim of the Plaintiff as has also been observed while deciding Issue No.1. Therefore, decree of declaration is passed declaring that the letter dated 27.01.2019 cancelling the Policy bearing number 305829302201802 was illegal, wrong and bad in law.
84. Therefore, it is held that Plaintiff is entitled to recovery of the amount as per the coverage under Policy bearing number 305829302201802. The Plaintiff has stated that pre-hospitalization charges amounted to Rs.64,850/-, hospitalization bill was of Rs.4,78,397/- and post-hospitalization charges were Rs.3,02,939/- thus totaling to NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 52 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:53:09 +0530 Rs.8,46,186/- and Plaintiff has claimed the same with interest @ 18% per annum as computed till the date of filing of the present suit. There is no dispute on the quantum of the claim of the Plaintiff and there has been no cross-examination of PW-1 on this aspect. Plaintiff has been deprived of the benefits under the policy bearing number 305829302201802 because of the Defendant cancelling the same wrongly. Therefore, Plaintiff is held entitled to interest @ 9% per annum on the amount claimed by the Plaintiff i.e. Rs.10,05,000/- from the Defendant.
85. Therefore, it is held that Plaintiff is entitled to recover amount of Rs.10,05,000/- from the Defendant with pendente-lite and future interest @ 9% per annum on Rs.10,05,000/-.
Issue No.3 : Whether the Plaintiff has valued the suit properly for the relief of mandatory injunction and declaration? If no, its effect?
The onus to prove this Issue was on the Plaintiff.
86. The Plaintiff has prayed for passing a decree of declaration declaring that the letter dated 27.01.2019 cancelling the Policy bearing number 305829302201802 was illegal, wrong and bad in law and consequently passing a decree of mandatory and permanent injunction against Defendant directing Defendant to issue fresh policy and keep on issuing policies till required by Plaintiff and his wife for subsequent years upon payment of requisite premium on the same terms and conditions as were offered to them in the Policy bearing no. 305829302201802.
87. The relief of Declaration has already been granted in favour of the Plaintiff while deciding Issue No.2 and in fact, the relief granted, while deciding Issue No.2 is a consequential relief flowing from relief of NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 53 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:53:16 +0530 Declaration. As regards the relief of Mandatory Injunction as prayed for, the court fees on the said relief as well as on relief of Declaration are covered under Section 7(iv) (d) and Section 7 (iv) (c) of Court Fees Act. Under Section 7 (iv), it is for the Plaintiff to state the amount at which the Plaintiff values the relief sought.
88. Since the Plaintiff has claimed an amount of Rs.10,05,000/- towards the relief of recovery of money flowing from relief of Declaration, the court fees paid on the relief of Declaration is covered under Section 7 (iv) (c) and therefore, court fees has been paid by the Plaintiff in regard to this relief. No separate valuation of the relief for Mandatory Injunction has been made. However, because of not valuing the said relief separately does not merit dismissal of the suit and payment of court fees on the relief of Mandatory Injunction is sufficient at this stage and valuing the suit for purpose of mandatory injunction to be Rs.130/-, Plaintiff is directed to pay court fees on the same within 3 working days from today. Issue No.3 is decided in favour of Plaintiff and against the Defendant in these terms.
Issue No.4 : Whether the Plaintiff is entitled for the relief of declaration and mandatory injunction as prayed?
The onus to prove this Issue was on the Plaintiff.
89. The relief of Declaration has already been granted in favour of the Plaintiff while deciding Issue No.2. However, as regards the relief of mandatory and permanent injunction against Defendant directing Defendant to issue fresh policy and keep on issuing policies till required NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 54 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:53:23 +0530 by Plaintiff and his wife for subsequent years upon payment of requisite premium on the same terms and conditions as were offered to them in the Policy bearing no. 305829302201802 is also allowed in view of law laid down in Mukund Lal Vs. United India Insurance Company Limited, 117 (2004) DLT 74 and Defendant is directed to renew the policy in terms of the prayer of the Plaintiff as per the insurance policy bearing no. 305829302201802 and without excluding the diseases that may have been contracted by the insured persons i.e. Plaintiff and his wife during the period of policy.
90. In view of these observations, Issue No.4 is decided in favour of Plaintiff and against the Defendant as regards the relief claimed for declaration as well as for Permanent and Mandatory Injunction as prayed for.
RELIEF
91. In view of my findings given on issue No.1 to 4, decree of declaration is passed in favour of the Plaintiff and against the Defendant declaring that the letter dated 27.01.2019 cancelling the Policy bearing number 305829302201802 was illegal, wrong and bad in law. Further, a decree of mandatory and permanent injunction is passed in favour of Plaintiff and against Defendant directing Defendant to issue fresh policy and keep on issuing policies till required by Plaintiff and his wife for subsequent years upon payment of requisite premium on the same terms and conditions as were offered to them in the Policy bearing no. 305829302201802 and without excluding the diseases that may have been NEERA BHARIHOKE CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 55 of 56 Digitally signed by NEERA BHARIHOKE Date: 2025.11.19 15:53:29 +0530 contracted by the insured persons i.e. Plaintiff and his wife during the period of policy. The suit for purpose of mandatory injunction is valued to be Rs.130/-. Plaintiff is directed to pay court fees on the same within 3 working days from today.
92. A decree is also passed in favour of the Plaintiff and against the Defendant for an amount of Rs.10,05,000/- alongwith pendente lite and future interest @ 9% per annum on the amount of Rs.10,05,000/- till realization.
93. Defendant is also directed to pay to Plaintiff the cost of the suit which shall include pleader's fee and the other costs on the scale provided under section 35 of the Code of Civil Procedure as substituted by Commercial Courts Act. If the payment is not made within thirty days, the cost shall also carry simple interest @ 6% per annum.
94. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Digitally signedAnnounced in the open NEERA by NEERA
BHARIHOKE
BHARIHOKE Date: 2025.11.19
Court on 19.11.2025 15:53:38 +0530
(Dr. Neera Bharihoke)
District Judge (Commercial Court)-06
South East, Saket Courts, New Delhi
19.11.2025
Certified that this judgment contains 56 pages and each page bears my signatures.
Digitally signed by (Dr. Neera Bharihoke) NEERA NEERA BHARIHOKE District Judge (Commercial Court)-06 BHARIHOKE Date:
2025.11.19 South East, Saket Courts, New Delhi 15:53:45 +0530 19.11.2025 CS (COMM) No. 308/2021 Vipin Arora Vs. Niva Bupa Health Insurance Page 56 of 56