National Consumer Disputes Redressal
Dr. Manmohan Nanda vs United India Insurance Co. Ltd. & Anr. on 22 May, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 92 OF 2010 1. DR. MANMOHAN NANDA S/o Lt. K.N. Nanda,
40, Mailviya Nagar Bhopal - 462 003 M.P. ...........Complainant(s) Versus 1. UNITED INDIA INSURANCE CO. LTD. & ANR. Through its Manager,
5th Floor, Gangotri Complex,
T.T. Nagar Bhopal - 462 003 M.P. 2. HERITAGE HEALTH TPA PVT. LTD. (Formerly Heritage Health Services Pvt. Ltd.) 1102, Raheja Chambers, 11th Floor, Free Press Journal Road, Nariman Point, Mumbai - 400 021, Also at 3, Netaji Subhash Road Kolkata - 700 001 West Bengal ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE MR. DR. B.C. GUPTA, MEMBER
For the Complainant : MR. RAHUL S. SAHAY For the Opp.Party : MR. KISHORE RAWAT
Dated : 22 May 2015 ORDER
The complainant Dr. Manmohan Nanda, who is a medical practitioner at Bhopal, obtained an "Overseas Medi-claim Business and Holiday Policy" No. 11090/46/09/497/0000008 from the Opposite party (OP), United India Assurance Company Ltd., valid from 19.05.2009 to 01.06.2009, to cover his planned trip to USA. The OP No. 2, Heritage Health TPA Private Limited is the third party administrator (TPA) appointed by the Insurance Company. The complainant was about 60 years old as per some affidavit on record, executed in June, 2011. The said policy was got extended till 21.06.2009 vide endorsement dated 29.05.2009. A copy of the proposal form submitted to the OP Insurance Company alongwith a copy of the medical report, signed by Dr. J. K. Jain, MD (Medicine) and Assistant Professor has been placed on record. According to the complainant, he was told by the agent/development officer of OP-1 Insurance Company that he will have to undergo a medical examination and would have to get certain tests conducted before the issuance of the Policy. He got himself examined from Dr. J.K. Jain and disclosed himself that he was suffering from diabetes mellitus (DM) for which he had been taking treatment for control of the disease. The proposal form was filled by a representative of OP-1 and the report of the doctor was given to the said representative. In the column "History" the doctor mentioned, "KK of DM-2 control on drugs". The doctor also recorded his blood pressure as 130/80 mm of Hg and pulse rate as 80 per minute. The report of blood and urine examination, ECG and Doctor's report were attached with the proposal form. The complainant boarded his flight to USA from New Delhi on 19.05.2009 around 1 AM. The flight landed on the same day at San Francisco at around 2 PM. The complainant was feeling fit till that time, but when he started getting out of the Customs area at San Francisco Airport, he started sweating and felt weak. He was taken to SFO Medical Centre at San Francisco Airport, where he was given some preliminary treatment. On the same day, around 5 PM, he was shifted to Mill's Peninsula Medical Centre (MPMC) where he was admitted in the emergency section. After obtaining his medical history, the Doctors performed angiography upon him and found two blockages in his heart's vessels, one of which was 100% blocked and the other 90% blocked. The doctors performed angioplasty and put 3 stents in his heart vessels in two sittings on 19.05.2009 and 22.05.2009. He was discharged from the hospital on 24.05.2009. The hospital administration tried to have confirmation about the insurance policy taken by him whereupon the complainant's son-in-law contacted M/s. Coris International, the foreign collaborator of OP-1 & 2, which provides emergency assistance and administrative services to the insured. The hospital was informed by M/s. Coris International that the complainant was carrying a valid policy. The complainant was thereupon not asked to make any payment and was told that the bills would be cleared by the insurers. The complainant had obtained treatment at 4 medical centres and the grand total of the bills raised by them came to be US $241932/- equivalent to ₹1,08,86,940/- taking one US dollar to be equivalent to ₹45/-. After about two and a half months, the complainant started receiving bills from different hospitals whereupon he contacted OP-1 vide letter dated 19.08.2009 and sent the bills and discharge summary to them. His letter was forwarded by OP-1 Insurance Company to OP-2 TPA. The complainant received a letter dated 22.08.2009 from OP-2 whereby his claim was repudiated on the ground that he had a medical history of hyperlipidemia and diabetes and the said policy did not cover the pre-existing conditions and its complications. The complainant made representation vide letter dated 16.11.2009 to the Regional Manager of OP-1, but he filed the consumer complaint, in question, when he did not receive response from them. However, vide letter dated 09.04.2010 sent by OP-2, his claim was again rejected.
2. The main ground taken by the complainant is that he was suffering from diabetes mellitus and he disclosed information to this effect to the Insurance Company before taking the policy, in question. The disease was fully controlled on oral medication with sugar levels within normal limits. The complainant further says that he was not suffering from hyperlipidaemia, but he was taking medicines called 'statins' because it is customary to take such medicines for prevention of cardio-vascular applications. He had shared the details of the medicines being taken by him with the examining Doctor before taking the policy. The complainant had therefore not suppressed any material facts from OP-1 before taking the policy. The OP was, therefore, fully aware of his medical condition before issuing the policy and in case, they were not satisfied on this account, they could have refused to issue the policy to him. The complainant has stated that the contract of insurance was a contract of 'uberima fides', i.e., contract of good faith and hence, once the insurance company had entered into that contract by issuing the policy in question, they could not do anything which may result in frustration of the said contract, based on the doctrine of estoppel. The complainant has further stated that he was not suffering from hyperlipidaemia at least to the best of his knowledge. He has stated, however, that "it is well-settled position in medical practice that the patients of diabetes mellitus always run a risk of getting affected by various other diseases like hyperlipidaemia, cardio-vascular diseases etc. It was presumed on the part of the complainant that OP 1 had knowledge of the aforesaid fact." The complainant stated that he was taking medicines in the nature of preventive care and not for hyperlipidaemia.
3. The complaint was resisted by the OP Insurance Company by filing a written statement in which they stated that the claim was not payable under the terms and conditions and exclusions of the policy of insurance, because any expense incurred for treatment of a pre-existing disease were excluded under the policy of insurance. He had past medical history of hypertension, duodenal ulcer and these facts were not disclosed in the proposal form. Further, diabetes and hyperlipidaemia are medically known to cause myocardial infraction and the policy specifically excludes all expenses incurred on the treatment, relating to a pre-existing disease. In the schedule of the policy itself, under the head 'important', it has been stated as under:-
"Notwithstanding anything stated in the policy, it is hereby declared and agreed that all claims occasioned by, happening through or in consequence of any disease which is existing on the date of commencement of risk, whether specifically declared or not, the proposal form completed by the insured, is excluded from the scope of the policy."
4. The policy under general conditions 10 (b) & (c) reads as under:-
"b. Pre-existing Exclusions : This policy is not designed to provide an indemnity in respect of medical services, the need for which arises out of a pre-existing condition as defined below in General Condition 10 (C)
c. Pre-existing condition : Any sickness for which the Insured Person has sought medical advice or has taken medical treatment in the preceding 12 months prior to the commencement of travel."
5. The OP Insurance Company have also stated in the written statement that on receipt of the documents from the Overseas settling agent, the OP-2 TPA had referred the matter to their panel doctor, Dr. P.R. Purandari for his opinion. After examining the complete medical record of the complainant, Dr. Purandari gave his opinion on 16.07.2009 as follows:-
"Opinion : DM and hyperlipidaemia is be pre-existent, Dr. Zipkin's notes clearly mention metabolic syndrome and the patent has been taking Atrovastatin for the same. Insured had not disclosed this. This is a known predisposing factor for CAD. Hence the claim cannot be allowed."
6. Dr. Purandari has also filed his affidavit in support of his opinion. He has referred to the medical notes prepared by the doctors in the United States of America during the treatment of the complainant for his disease. In nutshell, the stand taken by the OP-1 Insurance Company says that some of the pre-existing diseases were not disclosed and hence, there was a suppression of material facts on the part of the complainant and also the claim could not be given for any condition, relating to a pre-existing disease, even if it was disclosed in the proposal form.
7. Both the parties were given opportunity to file their evidence by way of affidavits. The complainant has filed the affidavits of Dr. S.K. Saxena, Dr. V.D. Bhale and Dr. S.K. Trivedi in support of the contentions raised by him in the complaint. The OPs filed affidavits of Satish Sharma, Manager, United India Insurance Company, Darpan Nillay, Vice-President, Heritage Health TPA Pvt. Ltd. and affidavit of Dr. P.R. Purandari, who gave his opinion on the documents attached with the claim.
8. At the time of hearing before us, the learned counsel for both the parties argued on similar lines as taken in their respective pleadings. The learned counsel for the complainant stated that diabetes mellitus was just a metabolic disorder and the same had been disclosed by the complainant while submitting the proposal form. Moreover, the examining doctor had also stated in his report that the diabetes was controlled on drugs. Still, if the Insurance Company had any confusion about the medical condition of the complainant, they should not have issued the instant policy to him. However, once they had issued such policy after considering the report of the doctor, it was obligatory upon them to honour the claim submitted by the insured. The learned counsel further stated that it was wrong to presume that myocardial infarction was a result of diabetes. Such a condition could occur in patients having no previous history of diabetes, whereas there were many cases where a person was suffering from diabetes, but he never developed myocardial infarction. The complaint in question, should, therefore, be allowed because the complainant did not suppress any material fact from the Insurance Company at the time of obtaining the policy.
9. On the other hand, the learned counsel for the respondents/OPs stated in his oral arguments as well as written submissions that the complainant had concealed material information regarding his ailment/disease and medications taken earlier at the time of submitting the proposal form for obtaining the policy in question. He had past medical history of duodenal ulcer and hyperlipidaemia and metabolic syndrome for which he was on medication. The complainant, in his evidence had filed affidavits of Dr. S.K. Saxena, Dr. V.D. Bhale and Dr. S.K. Trivedi, in which it had been stated that diabetes mellitus is a complex metabolic disorder, subjecting diabetes patients to a higher cardio-vascular risk than the non-diabetic population. Lipid-lowering agents, statins particles, have been found to be beneficial in both, preliminary and secondary prevention of cardio-vascular complications in diabetes. It was, therefore, customary to prescribe statins to diabetic patients above 40 years of age. Dr. V.D. Bhale has stated in his affidavit that there are certain diseases like malaria, breast cancer, hyperlipidaemia, etc. for which medicines were given both for preventive and curative purposes. The learned counsel stated that it was necessary for the complainant to disclose about these diseases and medication taken in the proposal form. The learned counsel has further stated that as per clause 10(c) of the policy, all claims in consequence of any disease which is existing on the date of the commencement of the risk whether specifically declared or not, were excluded from the scope of the policy. The learned counsel has drawn our attention to the orders passed by the Hon'ble Supreme Court in, "Satwant Kaur Sandhu vs. New India Assurance Company Ltd." [(2009) 8 SCC 316], and "P.C. Chacko & Anr. vs. Chairman, LIC of India & Ors." [(2008) I SCC 321], in support of his arguments, saying that wherever there was non-disclosure of a material fact, the claim was not covered under the Policy.
10. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The main question that arises for our consideration is whether there has been any non-disclosure of material information on the part of the complainant to the Insurance Company at the time of filling the proposal form for obtaining the policy in question. The admitted facts are that the complainant disclosed the existence of diabetes mellitus at the time of examination before Dr. J.K. Jain. However, a perusal of the proposal form reveals that in response to the question, "Have you suffered from any illness/disease or had an accident prior to the first date of insurance?", the complainant replied in the negative. The proforma filled by the examining Doctor, Dr. J.K. Jain mentions about 'kk of DM controlled on drugs' in the column "history" on the said proforma. However, the complainant has admitted in the evidence filed by him that he was regularly taking statins which are lipid-lowering medicines. The complainant has denied that he was suffering from hyperlipidaemia, but he has clearly stated that he was taking statins as a measure preventive to hyperlipidaemia. In our opinion, it was obligatory on the part of the complainant to have disclosed about the treatment being taken by him, while filling the proposal form. The complainant may have been taking the treatment as a preventive measure against some diseases but he should have faithfully declared such fact at the time of taking the insurance policy.
11. It is also an admitted fact that the complainant travelled to San Francisco USA on 19.05.2009 and on the same day, while coming out of the airport, he started sweating and felt weak and he was immediately carried to the hospital at the airport itself and then shifted to another hospital. The date of the commencement of the policy is also 19.05.2009. The documents regarding the treatment of the patient in USA have been filed by the OP Insurance Company on record. The complainant has not denied these facts anywhere. It has been stated about the past medical history and medication taken in these documents as follows:-
"PAST MEDICAL HISTORY : Has included diabetes that has been managed with oral medication, hyperlipidaemia, and peptic ulcer disease, for which he had a contained perforation in 1980 that did not require surgery.
MEDICATIONS PRIOR TO ADMISSION : Included pioglitazone, metformin, Lipitor, glimepiride, and omeprazole."
12. It is clear from above that the complainant had past history of hyperlipidaemia and peptic ulcer disease in addition to diabetes mellitus and this condition was disclosed to the medical authorities in USA at the time of treatment taken there. The complainant could have very well disclosed this condition to the OP Insurance Company as well, at the time of obtaining the policy in question. It has also been stated in these documents that the complainant quit smoking a year ago. It is made out, therefore, that the complainant had been taking a number of medicines to take care of his disease, but he never made a complete disclosure of his medical condition to the insurance company.
13. The affidavits filed on behalf of the complainant by 3 doctors, namely, Dr. S.K. Saxena, Dr. V.D. Bhale and Dr. S.K. Trivedi state in categorical terms that diabetic patients are subjected to a higher cardio-vascular risk than the non-diabetic population. It has also been stated that statins are lipid-lowering agents which are found beneficial in both primary and secondary prevention of cardio-vascular complications in diabetics. Since it is admitted by the complainant that he had been taking statin, it is evident that he had a pre-existing disease for which disclosure was not made to the Insurance Company. It may also be observed here that the complainant himself is a medical practitioner and it can be safely presumed that he had full knowledge of his medical condition but still, he chose to disclose only about diabetes at the time of filling the proposal form. It was the duty of the complainant to ensure that complete facts about his health condition were brought to the knowledge of the insurance company when he wanted to obtain the insurance policy in question. It is a settled legal proposition that contract of insurance is a contract of utmost good faith, based on the principle of 'uberima fides' between the insurer and the insured. The essence of the judgments given by the Hon'ble Apex Court and this Commission in many cases brings out that the insured should not withhold such kind of information from the insurer, which is likely to affect his mind and decision about issuing the insurance policy. The Hon'ble Apex Court observed in "Satwant Kaur Sandhu vs. New India Assurance Company Ltd. (supra), as below:-
"The upshot of the entire discussion is that in a Contract of Insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a "material fact". If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a Contract of Insurance."
14. Hon'ble Court further observed in the said judgment as follows:-
"Judged from any angle, we have no hesitation in coming to the conclusion that the statement made by the insured in the proposal form as to the state of his health was palpably untrue to his knowledge. There was clear suppression of material facts in regard to the health of the insured and, therefore, the respondent - insurer was fully justified in repudiating the insurance contract. "
15. The next point for consideration is that the insurance policy in question mentions about pre-existing exclusions and pre-existing conditions in general condition 10(B) and 10(C) respectively. A perusal of condition 10(c) makes it very clear that for any sickness for which the insured had sought advice or had taken medical treatment even at the time of issuance of policy, he was not entitled to the claim under the "Pre-existing exclusion" of the policy.
16. A perusal of the repudiation letter issued by OP-2 TPA reveals that the claim had been denied after obtaining proper medical opinion. The affidavit of Dr. P.R. Purandari has been placed on record which says that the insured was suffering from diabetes mellitus and hyperlipidaemia and he was on medication for the same and he is ex-smoker. Dr. P.R. Purandari has also referred to the notes of treating Doctors in USA and opined that all these conditions; smoking, diabetes, hypertriglyceridemia and metabolic syndrome was a high-risk condition for coronary artery disease. On a representation made by the complainant, the matter was reviewed and another letter dated 09.04.2010 was issued by the OP-2 saying that the claim was not payable.
17. Based on the discussion above, it is made out that the insurance company rightly repudiated the claim of the complainant taking the plea that the complainant had not disclosed true and complete picture about his health condition at the time of taking the policy and the exclusion clause under the policy was attracted in the case as complainant was taking medical treatment for a pre-existing disease. We, therefore, do not find any merit in this complaint and the same is ordered to be dismissed with no order as to costs.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER