Kerala High Court
Dr Soumya Suseelan P vs Max Bupa Health Insurance Co.Ltd., Rep. ... on 27 January, 2026
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WPC 8184/24
2026:KER:6560
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
TUESDAY, THE 27TH DAY OF JANUARY 2026 / 7TH MAGHA, 1947
WP(C) NO. 8184 OF 2024
PETITIONER/S:
DR SOUMYA SUSEELAN P, AGED 36 YEARS
W/O SANJEEV A.S., PALACKATHADATHIL HOUSE, KADAPLAMATTOM P.O.,
PALA, KOTTAYAM DISTRICT, PIN - 686571
BY SRI.S.K.SAJI, SMT.MAYAMOL T.S.
SMT.G.R.MANJU
RESPONDENT/S:
1 MAX BUPA HEALTH INSURANCE CO.LTD., REP. BY THE MANAGING
DIRECTOR CUM CHIEF EXECUTIVE OFFICER
MAX- BUPA HEALTH INSURANCE CO. LTD., MUMBAI, MAHARASHTRA, PIN -
400001
2 THE MANAGING DIRECTOR CUM CHIEF EXECUTIVE OFFICER
MAX- BUPA HEALTH INSURANCE CO. LTD., MUMBAI, MAHARASHTRA, PIN -
400001
3 VIPIN NAGI, GRIEVANCE OFFICER, MAX-BUPA HEALTH INSURANCE CO.
LTD., 2ND FLOOR, D5, LOGIX INFOTECH PARK, SECTOR 59, NOIDA,
GAUTHAM BUDH NAGAR, U.P, PIN - 201301
4 THE MANAGER,
MAX- BUPA HEALTH INSURANCE CCO. LTD., 3 RD FLOOR, ALAPATT
HERITAGE BUILDING, M.G ROAD, ERANAKULAM, PIN - 682035
5 THE INSURANCE OMBUDSMAN, KOCHI
PULINAT BUILDING, 2ND FLOOR, ALTANTIS JUNCTION, MAHATMA GANDI
ROAD, PERUMANOOR, KOCHI, KERALA, REPRESENTED BY GOVERNMENT
PLEADER,HIGH COURT OF KERALA, PIN - 682031
BY SRI.JITHIN SAJI ISAAC
SHRI.K.J.SAJI ISAAC
DR.ELIZABETH VARKEY
SHRI.ABHISHEK S. KUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 7.1.2026,
THE COURT ON 27.1.2026 DELIVERED THE FOLLOWING:
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WPC 8184/24
2026:KER:6560
JUDGMENT
(Dated this the 27th day of January 2026) The petitioner had a health insurance policy from 14.4.2020 till 13.4.2021 for a sum of Rs.5 lakhs for each person. The persons covered under the policies were herself, her husband, mother, mother - in - law and son. On 24.4.2020, the mother - in - law, named Thankamani was diagnosed with carcinoma of left breast and Modified Radical Mastectomy was done. A sum of ₹5,18,207.83 was expended by the petitioner for the treatment received. The claim was rejected and the petitioner filed a complaint before the insurance Ombudsman. The complaint was dismissed and the petitioner filed W.P.(C) No. 27939 of 2021 and this court by Ext.P5 judgment, set aside the order of the insurance Ombudsman and directed reconsideration after giving necessary opportunity of being heard within 4 months from the date of receipt of a copy of the judgment.
3WPC 8184/24
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2. The Insurance Ombudsman, by Ext.P6 award, upheld the rejection of the claim and the complaint was dismissed. The petitioner challenges Ext.P6 and wants a declaration that the petitioner is entitled to claim the amount of ₹5,18,207.38 with interest.
3. Heard the counsel for the petitioner and the respondent Insurance company.
4. The counsel for the petitioner submits that the dismissal of the award by the Ombudsman is illegal and improper. He submitted that the petitioner's mother-in-law underwent treatment for cancer and there is no pre-existing disease which was suppressed. It is true that the patient had undergone Excision of Benign breast swelling 15 years ago, but the same will not amount to surgery or a procedure under policy terms. The patient had no malignant medical condition prior to the policy. The respondent insurance company, after being satisfied that there is no pre- 4 WPC 8184/24
2026:KER:6560 existing disease, had issued the policy and the same cannot be rejected on the ground of pre-existing decease.
5. Earlier, the Ombudsman had dismissed the claim and it was challenged before this court in W.P.(C) No.27939 of 2021 and this court by Ext.P5 directed the Ombudsman to consider whether the Excision of Benign breast swelling done before 15 years, is a surgery or procedure. The Ombudsman, without considering the policy condition regarding surgery or procedure, dismissed the claim. Therefore, prayed that the Writ Petition be allowed.
6. A counter affidavit is filed by the respondents, wherein it is stated that the Ombudsman, after direction from this court, considered whether the Excision of Benign breast swelling is a surgery or procedure and relying on clause 11.81 of Policy certificate, came to a definite conclusion that it is a surgery and therefore, the petitioner has suppressed the fact in question No.D of Section A of Clause 5 of the Proposal Form.
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7. Under clause 5D the question that is posed in the proposal form is thus:
'Has the applicant EVER undergone or been advised to undergo or does he/she plan to undergo any form of surgery or procedure?'.
8. The answer to the said question is 'No'. Section B of the clause 5 would be applicable, if answer to sub clause D of section 5 was 'Yes'. Since the petitioner has stated 'No', section B was unanswered, thereby the respondent Company was kept dark. The petitioner suppressed the fact in the proposal form that the patient has undergone a surgery or procedure. It is on this ground of suppression of material facts that the claim was rejected. Ext.P7 is the rejection letter issued to the petitioner wherein it is specifically stated that the reason for rejection is known case of breast lump prior to policy and it is not the case of rejection on the basis of pre - existing disease.
9. Counsel for the respondent Insurance Company Shri. 6 WPC 8184/24 2026:KER:6560 Jithin Issac submitted that the rejection of the claim was not due to violation of the policy condition as enumerated in 11.62, which is Pre-existing disease, but on a different ground, that is suppression of material facts. 11.81 of the policy document defines Surgery or Surgical Procedure as manual and/or operative procedure required for treatment of an illness or injury, correction of deformities and defects, diagnosis and cure of disease, relief from suffering or prolongation of life, performed in a Hospital or Day Care Centre by a Medical Practitioner.
10. Counsel for the petitioner relies on the judgment of the hon'ble apex court in Sulbha Prakash Motegaonkar v. Life Insurance Corporation of India (2015 KHC 7126). This was a case in which a life insurance was repudiated for non disclosure of conditions like lumbar spondylitis with PID and sciatica, which was not life threatening. However, it had nothing to do with the insured's cause of death, which was due to ischaemic heart disease 7 WPC 8184/24 2026:KER:6560 and myocardial infarction. Thus, such non-disclosure was non material to the insurance cover and did not justify the denial of the claim. Relying on this judgment, it was contended that the carcinoma was detected only after the policy was issued and thus, it has no connection with the procedure done 15 years back.
11. In Manmohan Nanda v. United India Assurance Co. Ltd. and others [2022 (4) SCC 582], the hon'ble apex court held that the basic test hinges on whether the mind of a prudent insurer would be affected, either in deciding whether to take the risk at all or in fixing the premium, by knowledge of a particular fact if it had been disclosed. Therefore, the fact must be one affecting the risk. If it has no bearing on the risk, it need not be disclosed and if it would do no more than cause insurers to make enquiries delaying issue of the insurance, it is not material if the result of the enquiries would have no effect on a prudent insurer.
12. A perusal of the Proposal Form produced along with 8 WPC 8184/24 2026:KER:6560 the counter affidavit shows that the petitioner in Sub. Clause D of clause 5 has stated 'No' to the question whether the patient had ever undergone any surgery/procedure. As stated above, clause 11.81 deals with the definition of Surgery or Surgical Procedure. Removal of a lump from the breast will directly come under correction of deformities and diagnosis and also reliefs from suffering or prolongation of life. If the removal was not necessary for the well - being of the patient, the Doctor who diagnosed the same ought not have removed it through the surgical procedure. Therefore, it is established that there was a surgical procedure of removing a lump from the patient's breast. In the said Proposal Form, the same is suppressed. The treatment undergone by the patient is carcinoma of the breast. The rejection is not on the ground of pre - existing disease but on the suppression of material facts. The Ombudsman had relied on the dictum laid by the hon'ble Supreme Court in Manmohan Nanda (supra) to come to the 9 WPC 8184/24 2026:KER:6560 conclusion that the petitioner has suppressed the fact of the surgical procedure and therefore, there is suppression of material facts.
13. At this juncture, it is to be noted that the petitioner is a Doctor by profession and therefore, while signing the Proposal Form, she is bound to disclose the surgical procedure done on the patient. She cannot plead ignorance that the Excision of Benign Breast Swelling is not a surgery or a surgical procedure. I have gone through the award of the Insurance Ombudsman in detail and satisfied that cogent reasons have been given by the learned Ombudsman to justify the dismissal of the complaint and rejection of the claim.
Resultantly, this Writ Petition stands dismissed.
Sd/-
BASANT BALAJI JUDGE dl/ 10 WPC 8184/24 2026:KER:6560 APPENDIX OF WP(C) NO. 8184 OF 2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE POLICY CERTIFICATE VIDE NO.
30917387202001DATED 28.04.2020 Exhibit P2 TRUE COPY OF THE DISCHARGE SUMMARY FROM KIMS, THIRUVANANTHAPURAM DATED 06.05.2020 Exhibit P3 TRUE COPY OF THE COMPUTER-GENERATED PRINTOUT OF E-
MAIL MESSAGE TO THE PETITIONER FROM THE FIRST RESPONDENT DATED 10.03.2021 Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT BY THE RESPONDENT NOS 1 TO 5 DATED 03.03.2022 2021 Exhibit P5 TRUE COPY OF THE JUDGMENT IN WP (C) 27939 OF 2021 DATED 12.09.2023 OF THIS HON'BLE COURT Exhibit P6 ORIGINAL OF THE AWARD BY THE 5TH RESPONDENT DATED 30.01.2024 VIDE COMPLAINT REF. NO. KOC-H-031-2324- 1438 RESPONDENT EXHIBITS Exhibit R1(a) True copy of the proposal form submitted by the petitioner for the policy Exhibit R1(b) True copy of the Indoor Case Paper of Thankamany K in Kerala Institute of Medical Sciences, Thiruvanathapuram PETITIONER EXHIBITS Exhibit P7 TRUE COPY OF THE LETTER FROM MAX BUPA HEALTH DATED 12.04.2021