State Consumer Disputes Redressal Commission
Mr. Premjeet Sharma vs Apollo Munich Health Insurance Co. on 30 August, 2018
1 (A/16/2987)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
FIRST APPEAL NO.A/16/2987
(Arising out of Judgment and Order dated 03/09/2016 in complaint No. 402
of 2013 passed by the Ld.Mumbai Suburban District Forum.)
Mr.Premjeet Sharma
s/o Prashar Sharma
A Wing, Flat No.1202,
Dheeraj Jamuna Apartment,
Chincholi Bunder,
Link Road, Malad(W),
Mumbai 400 065. Appellant(s)
versus
1.Apollo Munich Health
Insurance Co.
The Manager
1st floor, Inizio,
Plot Bearing No.CTS#479,
4791-497/17,
Carnial Gracious Road,
Chakala, Andheri(E),
Mumbai 400 099.
2.Apollo Munich Health
Insurance Co.
10th floor, Tower B,
Building No.10,
DLF Cyber City,
DLF City, Phase II,
Gurgaon, Haryana 122 002.
3. Apollo Munich Health
Insurance Co.
The Manager
1st floor, Peerless Building,
B.K.Roy Court,
Asif Ali Road, Deriyaganj,
New Delhi 110 002. Respondent(s)
BEFORE:
Hon'ble Mr.Justice A.P.Bhangale, President
Hon'ble Dr.S.K.Kakade Member
PRESENT:
For the
Appellant: Advocate Smt.Sweta Prabhu
2 (A/16/2987)
For the
Respondent: Advocate Shri.Rajesh Kanojia
ORDER
Per: Hon'ble Dr.S.K.Kakade, Member
1. Being aggrieved by the order in the Consumer Complaint No. 402 of 2013, passed by the Learned DISTRICT CONSUMER FORUM, MUMBAI SUBURBAN DISTRICT, BANDRA partly allowing the complaint, and awarding the refund of the premium with deductions of Rs.5000/- towards administrative expenditure,the present appeal has been preferred by the original complainant under Sec.15 of the Consumer Protection Act 1986.
2. Facts necessary for deciding this appeal are as under; The complainant had purchased Easy health insurance policy for his parents from the opposite party number 2 bearing policy number 1000 1433 19- 02 having face value of Rs. 4,80,000/- that started from 1st December 2010. Complainant's mother Ms. Indu Sharma underwent heart surgery (aortic and mitral valve replacement) in 3rd year of the policy in Kokilaben Dhirubhai Ambani hospital, Mumbai on 3rd August 2013. The diagnosis was rheumatic heart disease- Severe AS, severe to moderate MS, moderate PAH. The complainant had paid a premium amount of rupees 15,274.09 per annum. The opposite party- respondents the internet bill submitted to them and give approval to Rs. 4, 80,000/- totally. The documents submitted by the hospital to the TPA, contained an unsigned handwritten discharge summary which mentioned that the appellant's mother was suffering from rheumatic heart disease since last 15 years. Hospital replied to the query of insurance company and sent the certificates from the heart surgeons that the actual 3 (A/16/2987) suffering of the patient was six to eight months. Relying upon the unsigned handwritten discharge summary, the insurance company repudiated the claim. Additionally terminated the insurance policy and eventually cancelled the same, after finding in the proposal form of the policy "non-disclosureof the pre-existing rheumatic heart disease for 15 years". The appellant complainant approached learned District Consumer Disputes Redressal Forum, Sub Urban District, Bandra, Mumbai. Aggrieved by the judgement and the Order of the learned forum, the complainant has preferred this appeal and approached this state Commission.
3. Considering the submissions made before us, considering record and scope of the appeal, following points arise for our determination and our findings thereon are noted against them for the reasons given below:
Sr.No. Point Findings
1. Whether the appellant establishes that the Yes opposite party has wrongly repudiated the mediclaim insurance claim and there is deficiency in service?
2. Whether the appellant / complainant is entitled Partly Yes for reimbursement of the hospital expenditure and the compensation as claimed?
3. What Order? Appeal is partly allowed.
REASONS
4. As to POINT No.1 Repudiation of mediclaim The learned advocate for the non-applicant respondent submitted that the insured had availed of easy health insurance policy from the respondent and the insured was under the obligation to disclose the 4 (A/16/2987) medical history in the column number 6 provided in the proposal form. Also according to the discharge summary of the patient unequivocally mentioned that she was suffering from Rheumatic heart disease since 15 years. The insured had suppressed the material fact about her medical history there is bridge of the terms of the policy.
5. Learned advocate for the respondent submitted that it is as per the policy conditions, the claim request made by the complainant after the admission in Kokilaben Ambani Hospital. Though initially two times approval was given by the insurance company with enhanced medical cover, subsequently the company repudiated the claim for the following reasons.
1, Any element or injury before the policy with us is a pre-existing not payable as per terms of policy wide section 6 d. We regret to inform that the claim is repudiated under the above clause.
2. Complete medical history(pulmonary embolism 2009), is not revealed while taking the policy in the proposal form. The claim is repudiated due to non-disclosure/ concealment of facts for availing benefit.
6. Learned advocate for the respondent invited our attention to judgments, so as to understand the legal position of the points under consideration. In the case of General Assurance Society Ltd vs. Chandu Mull Jain and ANR (1966) 3 SCR 500, the constitution bench has observed that the policy document being a contract and it has to be read strictly. It was observed: "in interpreting documents relating to a contract of insurance, the duty of court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. The application as such, merits dismissal on this score alone". He further submitted that the 5 (A/16/2987) words in an insurance contract must be given paramount importance and interpreted as expressed without any addition, deletion or substitution.
7. Stressing the importance of the words in an insurance contract the learned advocate for the respondent referred to two judgements.
1. Surajmal Ram Niwas Oil Mills Pvt.Ltd vs. United India Insurance Company Limited 2010 (10)SCC 567
2. Reliance Life Insurance Company Limited versus Madhvacharya (NCDRC Revision petition number 211 of 2009) Learned advocate for the respondent further submitted that all material information truthfully correctly and completely should be submitted by the proposer for evaluation and it is also mandatory to form the contract of insurance. He also invited our attention to the non-disclosure of previous surgery- hysterectomy 10 years ago. Thus the learned advocate submitted that in view of non-disclosure of the information that was the essence of the contract of insurance, the insurance company has rightly repudiated the claim of appellant applicant.
8. Learned advocate of appellant /complainant submitted that the mother of the appellant had undergone a through and complete body medical check-up before the contract of insurance was signed up in December 2010. Based on these reports, the respondents agreed to issue insurance for the appellant's mother. No heart ailment reflected in the medical examination while taking the insurance policy. The appellant's mother had undergone heart surgery in August 2013, when the appellant approached the respondent for approval of insurance amount. The discharge summary was issued by the hospital on its letterhead mentioning that the patient was suffering from rheumatic heart disease since last 8 months. Also the treating doctors, Dr. Vidyadhar Lad and Dr. Anvay Muley, the heart surgeons properly responded to the request of the insurance 6 (A/16/2987) company and forwarded the separate certificates about the history of heart illness, rheumatic heart disease for 6 and 8 months. The learned advocate of the appellant applicant further stated that in spite of authentic documents submitted by the hospital the claim of the appellant was repudiated by the respondent. The learned advocate strongly opposed the repudiation by the insurance company.
9. Learned District Consumer Disputes Redressal Forum Mumbai Suburban district Bandra, Mumbai, while deciding in this case came to the conclusion that non-disclosure of important information by the complainant bars him receiving the insurance amount in reimbursement. The learned Forum also discussed the decision from the following judgements the National Consumer Disputes Redressal Commission.
1. Subhash B. Jatania vs. National Insurance Company Limited RP 3515/ 2009 decided on 12 January 2015. 2015(1) CPR 807 (NC)
2. Bajaj Allianz insurance Company Limited vs. Raj Mittal, RP 4518/ 2012 decided on 13th October 2015. 2016 NCJ 223(NC)
10. Core question for consideration is whether the fact that at the time of taking out the mediclaim policy, the policy holder was suffering from Rheumatic Heart Disease was a material fact and, therefore, on account of non-disclosure of this fact in the proposal form, the respondent - Insurance Company was justified in law in repudiating the claim of the appellant?
11. Hon'ble Supreme Court in the case of Satwant Kaur Sandhu vs. New India Assurance Company Ltd on 10 July, 2009,(2009)8 SCC 316, made an important observation as follows-
"A mediclaim policy is a non-life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, 7 (A/16/2987) meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a 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. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment. (See: Joel vs. Law Union & Crown Ins. Co.1)"
12. We have heard the learned advocates for both parties and have gone through the evidence on record. The onus to prove that the Appellant / Applicant was suffering from a pre-existing disease as per settled law is upon the Respondent. We note that the Respondent has not produced any credible documentary evidence/ expert medical opinion in support of their case nor the respondent could produce any document to prove that the appellant applicant had knowledge of the fact of existence of the Rheumatic Heart Disease. We are of the opinion that repudiation of mediclaim insurance on the basis of unauthenticated document is not proper on the part of the insurance company. In view of the above, we answer the POINT No.1 as Affirmative.
13. As to POINT No.2 Entitlement for reimbursement and compensation In view of the above discussion in Point No.1, the appellant applicant is entitled for reimbursement of the medical expenditure up to the limit of the Easy Health Insurance Policy and the 8 (A/16/2987) compensation as per the final order. In view of the above, we answer the POINT No.2 as Affirmative
14. As to POINT No.3As per the Order ORDER
1. The Appeal is allowed with costs of Rs. 10, 000/- (Rupees ten thousand only) to be paid by the respondent to appellant.
2. The impugned order by the learned District Consumer Disputes Redressal Forum, Suburban District, Mumbai in the Consumer Complaint No.402 of 2013 is hereby set aside and the said complaint is disposed of as under-
3. The non-applicant respondent, the Insurance Company is hereby directed to pay Rs.4,80,000/- towards the hospital treatment with 9% interest from the date of repudiation of the claim within the period of 3 months, failing which 12 % interest till the date of realization.
4. The non-applicant respondent is also directed to pay sum of Rs.2 Lakh as compensation towards mental agony and harassment within the period of 3 months from the date of this order failing which, to pay 18 % interest till realization.
5. Free certified copies of the order be furnished to the parties forthwith.
Pronounced Dated 30thAugust 2018 [JUSTICE A.P.BHANGALE] PRESIDENT [Dr.S.K.KAKADE] MEMBER