Delhi District Court
Mrs Arvinder Kaur vs Niva Bupa Health on 7 January, 2025
IN THE COURT OF Sh. RAJESH KUMAR GOEL
DISTRICT JUDGE (COMMERCIAL)-02, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI.
DLCT010161722023
CS (Comm.) No. 1494/2023
CNR No.DLCT010161722023
IN THE MATTER OF:
Mrs. Arvinder Kaur
W/o Sh. Dalvinder Singh
F-32 B, Sudershan Park,
Near Tyagi Market,
Moti Nagar, Delhi-1100
............ Plaintiff
Versus
Niva Bupa Health Insurance Company Ltd.,
39, 3rd Floor, Pusa Road,
W. E. A., Karol Bagh,
New Delhi-110005.
.......... Defendant
Date of filing of suit : 10.11.2023
Date of Argument : 25.11.2024
Date of Judgment : 07.01.2025
JUDGMENT
1. Vide this judgment, I shall decide the present suit for recovery of Rs.10,51,945/- (Rupees Ten Lakh Fifty One Thousand Nine Hundred and Forty Five only) filed the plaintiff Mrs. Arvinder Kaur (hereinafter referred to as Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 1 of 26) 'plaintiff') against the defendant namely Niva Bupa Health Insurance Company Ltd. (hereinafter referred to as 'defendant company').
FACTUAL MATRIX:
2. The brief facts of the case as made out from the plaint are as under:-
a) That on 16.02.2023, the plaintiff had taken a Floater Policy No. - 33030818202300 (hereafter referred to as "insurance policy") for herself, for her husband Dalvinder Singh and son Tanmeet Singh from the insurance company for a period of one year ending on 15.02.2024.
b) Since the husband of the plaintiff namely Dalvinder Singh was having acute chest pain, therefore on 25.03.2023, he was taken to Action Balaji Hospital, Paschim Vihar, New Delhi; he was admitted and requisite investigation was conducted by the doctors and treatment was given; the doctors further got a Coronary Artery Angiography (CAG) done on 27.03.2023, which indicated "double vessel disease".
c) Post admission of Dalvinder Singh in the said hospital, plaintiff applied for cashless treatment of her husband at the TPA Desk under the insurance policy issued by the insurance company; the claims of the plaintiff under cashless facility were first approved and subsequently, were cancelled and rejected.
d) The insurance company vide its cashless denial letter dated 30.03.2023 informed the plaintiff that said facility cannot be extended as according to the insurance company, the patient (plaintiff's husband) has a history of chest pain for the last three - four years, which is prior to the policy start date and the same was not informed to the insurance company at the time when the insurance policy was issued.
e) According to the plaintiff, Sh. Dalvinder Singh had no prior history of chest pain and for the very first time he had experienced the said chest pain on 25.03.2023.
Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 2 of 26)
f) There is no as such medical document indicating that Dalvinder Singh had chest pain for the last three - four years, rather in the discharge summary dated 30.03.2023, it has been clearly mentioned that Dalvinder Singh is a non-case of type II DM and was admitted with chest pain for three-four hours duration.
g) It is stated that the plaintiff, being in dire need of money, made repeated inquiries from the insurance company but to no avail; plaintiff contacted the treating doctor and requested the doctor a clarification in writing for the satisfaction of the insurance company and the doctor concerned issued the certificate clarifying the duration of the disease.
h) It is the case of the plaintiff that despite the submissions of certificate of clarifying the duration of the disease, the insurance company rejected the claim of the plaintiff vide email dated 25.04.2023 on factitious grounds. Hence the present suit was filed.
i) Since, the subject matter of the suit is a commercial dispute, therefore, the plaintiff is said to have approached Central DLSA in terms of section 12 (A) of the Commercial Court Act, 2015 and the Central DLSA has released a non-starter report dated 07.11.2023 in per-institution mediation process.
3. On being served the notice of the suit, insurance company has field the written statement taking certain objections, which are as under:-
a) The plaintiff has concocted a false story and the present suit is frivolous and is not maintainable.
b) The suit of the plaintiff is premature as the plaintiff has never submitted that doctor's certificate in respect of the amount claimed.
c) As per the available medical documents, it is evident that the patient was having the chest pain for the last three - four years, which was not disclosed, therefore, the rejection of the insurance policy was in consonance with the terms of the policy.
Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 3 of 26)
d) The doctor's certificate dated 29.06.2024, was filed by the plaintiff is clearly an afterthought, after the rejection of the claim on 25.04.2023 by the insurance company just to extract the money from the insurance company.
e) The allegations made by the plaintiff, are ill-founded and malafide and the plaintiff has not approached the court with clean hands.
f) The contract of insurance is based upon the principle of utmost good faith and the insured is supposed to disclose every material fact, which has been concealed by the plaintiff as the plaintiff did not disclose pre- existing adverse medical history of her husband and misrepresented the material facts and thereby committed the fraud with the insurance company.
g) It is the case of the insurance company that the rejection of the plaintiff's claim was done as the plaintiff did not disclose pre-existing chest pain for three - four years and the rejection of the claim and cancellation of the policy by the insurance company is in consonance with the Clause 8.2 (d) and 8.12 of the terms and conditions of the insurance policy.
h) The plaintiff had submitted the claim of Rs.1,97,538/-
which was rejected by the insurance company but the present suit was filed for exaggerated amount, therefore the suit is not maintainable; the insurance company was never given an opportunity to verify the claim of Rs.13,63,641/- of the plaintiff.
i) All other allegations of the plaintiff have been denied by the insurance company and it is prayed that the present suit may kindly be dismissed.
4. The plaintiff filed the rejoinder/replication denying the allegations made in the written statement and reiterated the facts as mentioned in the plaint.
Settlement of issues and Fixing the Schedule for Second Case Management Hearing.
5. From the pleading of the parties, vide order dated Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 4 of 26) 10.09.2024, following issues were framed by this court:-
1. Whether the husband of the plaintiff namely Sh. Dalvinder Singh had a history of CHEST PAIN since three - four years prior to the policy start date and the same was not disclosed to the defendant at policy issuance stage, thereby plaintiff gave incorrect or false information while obtaining the policy in question ? (OPD)
2. Whether the plaintiff is entitled for the recovery of an amount of Rs. 10,51,945/-, as prayed for ? (OPP)
3. In case, if the issue no. 2 is decided in affirmative, whether the plaintiff is entitled to the pendente lite and future interest as prayed for in the plaint? If yes, the rate thereof ? (OPP)
4. Relief.
Evidence led by the parties:
6. In order to prove her case, the plaintiff has examined herself as PW1, Sh. Yogesh Kumar Patel, an executive from Khetarpal Hospital as PW2, Ms. Parmeet Kaur, Assistant Manager from Action Balaji Hospital as PW3, Mr. Rajiv Lochan, Assistant from Apollo Hospital as PW4 and Sh. Gagan Chandra Bag, Billing Manager from the Apollo Hospital as PW5.
7. PW1 Arvinder Kaur filed her evidence by way of an affidavit Ex.PW1/A. PW1 Arvinder Kaur has relied upon the documents i.e. insurance policy documents ExPW1/1 (colly), documents pertaining to cashless denial, letter dated 30.03.2023 ExPW1/2 (colly), original certificate dated 29.06.2023 ExPW1/3, original discharge summary released by Balaji Action Medical Hospital Exhibit Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 5 of 26) PW3/1, original consultation prescription dated 6.4.2023 ExPW3/2, original discharge summary dated 13.04.2023 ExPW3/3, discharge summary dated 24.05.2023 issued by Central Hospital ExPW1/4, document showing the treatment ExPW2/3, original discharge summary released by Shri Action Medical Institute ExPW1/5, Advice dated 12.06.2023 given by Dr. Sandeep Guleria ExPW1/6, Discharge summary ExPW4/2 (colly), List/details of summary medical bills Mark PW1/7, Original bill ExPW3/4, Original bill ExPW3/5, Original bill ExPW3/6, Original bill ExPW3/7, Original bill ExPW3/8, bill dated 24.05.2023 issued by Central Hospital Mark PW1/8, cash receipt ExPW2/1, Original bill dated 29.05.2023 ExPW2/2, Original bill ExPW3/9 (colly), Original bill dated 19.06.2023 issued by Appolo Pharmacy ExPW1/9, Original bill dated 23.06.2023 issued by Appolo Pharmacy ExPW1/10, Bill ExPW5/1, Bill ExPW5/2 (colly), Bill of supply ExPW3/10, copy of the mail dated 19.04.2023 ExPW1/11, rejection letter dated 25.04.2023 ExPW1/12, Non starter report dated 07.11.2023 ExPW1/13, affidavit u/o XI Rule 6 (3) CPC ExPW1/14 and certificate u/s 65 B of the then Indian Evidence Act ExPW1/15.
8. PW1 Arvinder Kaur was cross examined by the Ld. Counsel for the defendant. During her cross examination, PW1 admitted the case summary dated 28.03.2023 Ex.PW1/X1 issued by Sri Action Balaji Institute; replied Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 6 of 26) that claim was submitted to the insurance company only once at the time of admission of her husband in the hospital; admitted that her claim was rejected on 25.04.2023 vide document Ex.PW1/12; also admitted that the certificate dated 29.06.2023 Ex.PW1/3 was issued by Balaji Action Medical Institute after the claim was rejected by the insurance company; no claim was submitted to the insurance company after the rejection of the claim on 25.04.2023; further admitted that insurance company had informed vide email dated 19.04.2023 Ex.PW1/11 about the cancellation of the insurance policy; no legal notice or communication was sent to the insurance company asking them as to why the claim has been rejected.
9. PW2 Sh. Yogesh Kumar Patel, an Executive from Khetarpal Hospital, produced the summoned record pertaining to the patient Dalvinder Singh (husband of the plaintiff) and deposed that cash receipt dated 28.05.2023 Ex.PW2/1 and the bill dated 29.05.2023 Ex.PW2/2 have been issued by Khetarpal Hospital in respect of the patient Dalvinder Singh and the referral summary of patient Dalvinder Singh is Ex.PW2/3.
10. PW3 Ms. Parmeet Kaur, Assistant Manager, Medical Record Department, Action Balaji Hospital, has also produced the summoned record pertaining to the patient Dalvinder Singh and has proved the documents i.e. original discharge summary dated 30.03.2023 released by Balaji Action Medical Hospital Ex.PW3/1, original Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 7 of 26) consultation prescription dated 06.04.2023 ExPW3/2 and original discharge summary dated 13.04.2023 ExPW3/3, bill of supply dated 30.03.2023 Ex.PW3/4, bill of supply dated 06.04.2023 Ex.PW3/5, bill of supply dated 06.04.2023 Ex.PW3/6, bill of supply dated 13.04.2023 Ex.PW3/7, bill of supply dated 20.04.2023 Ex.PW3/8, bill of supply dated 09.06.2023 Ex.PW3/9 and bill of supply dated 29.06.2023 Ex.PW3/10.
11. PW4 Sh. Rajiv Lochan, Assistant from Apollo Hospital produced the requisite record and deposed that prescription given by the Doctor (Prof.) Sandeep Guleria is Mark PW4/1 and the discharge summary issued by Apollo Hospital in respect of the patient Dalvinder Singh is Ex.PW4/2.
12. PW5 Sh. Gagan Chandra Bag, Dealing Manager from the Apollo Hospital by producing the requisite record proved the bills dated 26.06.2023 pertaining to the patient Dalvinder Singh as Ex.PW5/1 and Ex.PW5/2.
13. PW2 Yogesh Kumar Patel, PW3 Ms. Parmeet Kaur, PW4 Sh. Rajiv Lochan and PW5 Sh. Gagan Chandra Bag have not been cross examined by the Ld. Counsel for the defendant despite the opportunity being given to the defendant.
14. Defendant insurance company has examined its Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 8 of 26) authorized representative namely Sh. Rahul Raunak as DW1 and filed his evidence by way of an affidavit Ex.DW1/A. DW1 Sh. Rahul Raunak has relied upon the documents i.e. authorization letter dated 16.01.2024 Ex.DW1/1, another authorization letter dated 17.01.2023 Ex.DW1/2 and the case summary of the patient Dalvinder Singh dated 28.03.2023 Ex.PW1/X1.
15. DW1 Sh. Rahul Raunak was cross examined by the Ld. Counsel for the plaintiff. During his cross examination, DW1 admitted that the request for cashless facility is sent by the hospital to the insurance company; insured has no role to play for making the request of cashless facility; in case some query is raised by the insurance company, the same is answered by the hospital or the treating doctor; in the present case also the request for cashless facility was received from the hospital by the defendant, which was initially approved but subsequently, it was cancelled.
16. DW1 Sh. Rahul Raunak replied that subsequently, it was revealed that the patient was having chest pain for the last three to four years, as reflected in the case summary Ex.PW1/X1, therefore, the cashless facility was cancelled; admitted that the discharge summary Ex.PW3/1 is having the reference that patient was having chest pain for three- four hours duration; defendant insurance company had received the copy of the said discharge summary Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 9 of 26) Ex.PW3/1; denied that hospital had answered the query of the defendant insurance company as per the denial letter Ex.PW1/2; stated that the document Ex.PW1/2 is the same communication vide which the hospital was informed about the rejection of the claim; admitted that defendant insurance company is also having the in-house medical team and the present case of the plaintiff might have been examined by that medical team; no communication was made with the treating doctor of the patient in the present case; admitted that as per the insurance policy, the defendant insurance company had agreed to bear the medical expenses post-hospitalization for a period of 180 days and the defendant insurance company would not entertain any claim of the insured after the cancellation of the insurance policy.
Arguments made by the Ld. Counsels:
17. Ld. Counsels for both the parties have filed the written synopsis of arguments and have argued the matter orally as well. A careful examination of their written synopsis would reveal that the same is more or less reproduction of their stand as taken by them in their respective pleadings. They have referred to the testimonies of witnesses recorded which have already been noted down by this court and have argued the matter orally as well on the lines of the written synopsis. For the sake of brevity, I am avoiding reproducing their arguments, however, the same shall be referred to and Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 10 of 26) considered wherever necessary.
18. I have perused the record and heard the Ld. Counsels for both the parties.
Discussion, Analysis and findings on the Issues Issue No. 1 Whether the husband of the plaintiff namely Sh. Dalvinder Singh had a history of CHEST PAIN since three - four years prior to the policy start date and the same was not disclosed to the defendant at policy issuance stage, thereby plaintiff gave incorrect or false information while obtaining the policy in question ? (OPD) Issue No.2 Whether the plaintiff is entitled for the recovery of an amount of Rs. 10,51,945/-, as prayed for ? (OPP)
19. Both these issues are interconnected, therefore, the same are being decided together.
20. Before proceeding further, I deem it appropriate to pen down the admitted and proved facts/documents to make the controversy short, which are as under:-
a) The plaintiff (PW1) had taken Floater Policy No. 33030818202300 (insurance policy) ExPW1/1 (colly) from the defendant.
b) The patient was admitted to the hospital namely Sri Balaji Action Medical Institute on 25-03-2023.
c) Vide communication dated 30.03.2023 ExPW1/2 (colly), defendant denied the cashless facility to the plaintiff.
d) The case summary of the husband of the plaintiff Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 11 of 26) namely Dalvinder Singh prepared by the hospital at the time of admission of the patient dated 28.03.2023 is ExPW1/X1.
e) The certificate dated 29.06.2023 ExPW1/3 was issued by Sri Balaji Action Medical Institute after the claim was rejected by the defendant company.
f) vide email dated 19.04.2023 ExPW1/11, defendant company had informed the plaintiff about the cancellation of the insurance policy and no claim was submitted by the plaintiff after rejection of the claim on 25.04.2023 by the the defendant company.
21. From the pleadings of the parties, documents on record and the evidence led by the parties, it is evident that the objections of the defendant company are on two counts, Firstly, that the husband of the plaintiff was having chest pain for the last 3-4 years prior to the date of policy which was concealed by the plaintiff at the time of taking the policy. Secondly, after rejection of cashless facility vide communication dated 30.03.2023 ExPW1/2 (colly), the plaintiff never made any request or representation to the defendant company for reimbursement of the expenditure incurred in the treatment of the husband of the plaintiff.
22. In the course of the argument, Ld. Counsel for the defendant submitted that during the cross examination PW1 Arvinder Kaur has admitted the case summary dated 28.03.2023 ExPW1/X1, which clearly indicates that the husband of the plaintiff was having chest pain for the last 3-4 years which was concealed from the defendant Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 12 of 26) company at the time of taking the policy. Therefore, the defendant company is not liable to make the payment to the plaintiff for the expenditure incurred in the treatment of the husband of the plaintiff.
23. The entire case of the defendant is based upon only one document i.e case summary dated 28.03.2023 ExPW1/X1 which reads as under:-
" Mr. Dalvinder Singh, 58 yrs/M.UHID: 201323400 is a known case of type II DM was admitted with ℅ chest pain for 3-4 yrs duration. His ECG s/o AWMi, KFT was deranged. 2D Echo was done which showed EF-30%. Nephro ref was taken. After taking high risk consent. CAG was done on 27.03.2023 which showed double vessel disease. PTCA + step to LAD was done successfully. Patient was managed with antiplatelet, statin, anticoagulation, diuretics and other supportive treatment. patient was being managed under the care of a cardiologist and nephrologist. patient require 2-3 more hospital stay."
24. From aforesaid documents it is clear that there is a reference that patient Dalvinder Singh was having Chest Pain for "3-4yrs duration", which according to the plaintiff was a typographical mistake and instead of "yrs" it should have been 'hrs". I am of the opinion that the contention of the ld. Counsel for the plaintiff appears to be more plausible and acceptable to this court rather than the contention of the Ld. Counsel for the defendant company that the patient was having chest pain for the last 3-4 years. Only on the basis of the aforesaid document, the claim of the plaintiff cannot be rejected. The insurance policy ExPW1/1 (colly) is not in dispute.
Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 13 of 26) The objection of the defendant company is that there was no disclosure of the material information about the previous medical conditions of the patient. In this regard, I may refer to the general terms and conditions (8.12) Disclosure of Information (filed with the policy ExPW1/1 (colly)), which say that the policy shall be void and all premium paid thereon shall be forfeited to the Company in the event of misrepresentation, mis-description or non- disclosure of any material fact by the policyholder. The explanation attached to this condition has defined "
Material facts" which means " all relevant information sought by the company in the proposal form and other connected documents to enable it to take informed decisions in the context of underwriting the risk".
25. I am also referring to the medical declaration made by the plaintiff at the time of taking the policy. One of the declarations about the husband of the plaintiff was at page no.90 of the paper book (filed with the policy ExPW1/1 (colly)) regarding whether the husband of the plaintiff was having various diseases as mentioned therein and it was answered in negative. The next question on the same page says that if the patient was having a common cold, flu, infections, minor injury or other minor ailments etc. and it was answered in affirmative.
26. This court can take judicial notice of a fact that as and when a medical policy is taken by any person, the insurer would have its own medical examination of the insured to know the previous medical history of the Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 14 of 26) insured. In the present case, during the cross examination, DW1 Rahul Raunak admitted that the defendant company is also having inhouse medical team and the present claim might have been examined by that inhouse medical team. He further admitted that the defendant company has not placed on record any report or the opinion of the in-house medical team in respect of the present claim and the defendant company had not made any communication with the treating doctor of the patient in the present case. This indicates that the defendant company rejected the claim of the plaintiff only on the basis of narration made in the case summary ExPW1/X1, without further verifying the same.
27. Further during the cross examination DW1 Rahul Raunak has not disputed the discharge summary dated 30-03-2023 ExPW3/1 wherein it is mentioned that the patient was admitted with chest pain "for 3-4 hrs duration". He further admitted that the discharge summary was prepared at the time when the patient was going to be discharged from the hospital and the defendant company had received the said discharge summary. When the witness was asked whether the defendant company had sent any communication to the hospital for correction or verification of the said discharge summary, the witness replied that he is not aware of the same. Meaning thereby, the discharge summary ExPW3/1 has not been disputed by the defendant company.
Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 15 of 26)
28. The case of defendant company, as noted herein above, is based upon only one document ExPW1/X1 dated 25.03.2023 which has narration of the words "3-4 yrs duration". The subsequent discharge summary dated 30.03.2023 which is just after 5 days ExPW3/1 clearly mentions that the patient was admitted with chest pain for "3-4 hrs duration". This itself is conclusive proof to accept that the words "3-4 years' as mentioned in the earlier case summary dated 25.3.2023 ExPW1/X1 basically appears to be a typographical mistake. Had there been a case the patient was having a chest pain for the last 3-4 years duration, there was no occasion for the doctor to mention the same in the subsequent discharge summary ExPW3/1 which was released only after 5 days, that the patient was having chest pain for 3-4 hrs at the time of admission. The defendant company even had not made any attempt to have clarification or verification from the hospital or the treating doctor about the same. If the defendant company is so concerned about the case summary ExPW1/X1, then there is no occasion for them at the same time to reject the discharge summary ExPW3/1 which is tilting the entire case in favour of the plaintiff.
29. Here it is also pertinent to mention that the plaintiff in support of her case has also filed on record a certificate dated 29-06-2023 Ex PW1/3. At the time when PW1 Arvinder Kaur (plaintiff), tendered her evidence by way Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 16 of 26) of affidavit Ex PW1/A, Ld counsel for the defendant took one objection regarding mode of proof of the said certificate dated 29-06-2023 Ex PW1/3. This court disallowed the objection while observing " plaintiff is the receiver of the aforesaid document and the receiver has every right to prove the document which is in the possession of the receiver and which is not alleged to be forged and fabricated. therefore , the objection of the Ld counsel for the defendant is not sustainable".
30. Further, during her cross examination one of the replies given by PW1 would suggest that the defendant company as such has no objection to the said certificate as relied upon by the plaintiff. The said reply reads as "It is correct that the certificate dated 29-06-2023 Ex PW1/3 was issued to us by Shri Balaji Action Medical Institute after our claim was rejected by the defendant insurance company. I had made the request to Shri Balaji Action Medical Hospital on 29-06-2023 itself for issuance of the said certificate". PW1 further replied that the said certificate was handed over to the agent namely Chanpreet Singh and not to the defendant company. During the cross examination of DW1, it has come on the record that in the policy ExPW1/1( colly), Chanprit Singh Taneja has been shown as intermediary(agent). The only suggestion put to PW1 in this regard was that no such certificate was handed over to the said agent. The defendant company has not disputed or challenged the genuineness of the said certificate. For the sake of convenience the said certificate dated 29-06- 2023 Ex PW1/3 is being reproduced as under:-
Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 17 of 26) "To whom it may concern Patient Mr. Dalvinder Singh, 58 years old/ M, UHID
- 201323400, was admitted on 25.03.2023 with the diagnosis of CAD - ACS. His PTCA to LAD was done. By mistake C/O chest pain was mentioned for 3-4 years instead of 3-4 hrs in discharge summary• sd/-
Dr NITIN AGGARWAL"
31. Interestingly, the said certificate has been issued by the same Doctor namely Nitin Aggarwal, who is said to have issued and prepared the case summary ExPW1/X1, only on the basis of which the claim of the plaintiff was rejected by the defendant company. In the backdrop of the aforesaid facts, the certificate dated 29-06-2023 Ex PW1/3 stands proved, which settles the entire dust raised by the defendant that the patient was having chest pain for the last for 3-4 years previous to policy date.
32. In view of my aforesaid discussion, this court can conveniently reach at a conclusion that the husband of the plaintiff namely Sh. Dalvinder Singh had no previous medical history of CHEST PAIN for the last three - four years prior to the policy start date and there is nothing on record suggesting that plaintiff had concealed some material facts from the defendant company at the time of taking the policy.
33. Coming to the second objection of the defendant company that after rejection of cashless facility vide communication dated 30.03.2023 ExPW1/2 (colly), the plaintiff never made any request or representation to the defendant company for reimbursement of the expenditure Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 18 of 26) incurred in the treatment of the husband of the plaintiff, I may mention that even if no such request was made, still it would not make any difference and on this basis alone the claim of the plaintiff can not be rejected.
34. It is not in dispute that the cashless claim of the plaintiff was initially declined by the defendant company vide communication dated 30-03-2023 ExPW1/2(colly). The denial remarks of the defendant company were as under:-
"Previous Approval stand cancelled. As per submitted documents, patient has a history of CHEST PAIN since 3-4 years, which is prior to policy start date. This was not disclosed to us at policy issuance stage. Expenses related to the treatment of a Pre-existing Disease (PED)(Exc/01) and its direct complications shall be excluded until the expiry of 36 months of continuous coverage after the date of tadiy to of request (refer polly cause fore, We regret we are unable to extend cashless to this request.."
35. The above communication conveying the denial, was followed by another communication dated 25-04- 2023 ExPW1/12, whereby the plaintiff was informed by the defendant company as under:-
"..We regret to inform that your claim has not been approved due to following reason (s). As per submitted documents patient has a history of chest pain since 3-4 years, which is prior to policy start date. This was not disclosed to us at policy issuance stage. We regret the claim is not payable under non disclosure.."
36. The last communication from the defendant in this regards is email dated 06-08-2023 Ex PW1/11, vide Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 19 of 26) which it was informed to the plaintiff that the policy has been cancelled and defendant company is unable to continue with the policy coverage with the rider that defendant may review the case of the plaintiff only if further facts /documents are provided to them by the plaintiff.
37. In the background of the aforesaid facts now it is to be seen whether after the cancellation of policy the insured had any right in the said policy including the refund of premium etc. As per clause 8.2. Cancellation of the policy document, in case any claim has been lodged(declined) or policy has been cancelled on the ground of misrepresentation, which is there in the present case, in that eventuality the insured would not be entitled to have a refund of even the premium. So how a layman would be thinking of making a representation or a request again to the insurer when her claim has been rejected from the day one. The power of review with the insured was only in case she has some new facts or documents. In the present case admittedly after rejection of the claim by the defendant company ,the plaintiff had no such new documents. Moreover, during his cross examination DW1 Rahul Raunak admitted that after cancellation of the policy the defendant company would not entertain any claim of the insured.
38. Be that as it may, even if for the sake of argument it is presumed that the plaintiff should have made a further request for refund of the money,there are certain Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 20 of 26) circumstances, from which it can be easily inferred that the plaintiff made the request to the defendant for allowing her claim, though not directly but indirectly.
39. Section 12A of The Commercial Court Act, 2015 provides for compulsory mediation before institution of the suit, where no urgent relief is contemplated. There is a prescribed mechanism for the Pre-Institution Mediation and Settlement. PW1 Arvinder Kaur deposed that before filing the present suit she had gone for Pre -Institution Mediation and in this regard a Non Starter Report dated 07-11-2023 ExPW1/13 was released. Even DW1 Rahul Raunak during his cross examination admitted that the defendant company had participated in the said process of mediation. The compliance of section 12A is not mere a formality. This provision of law gives an opportunity to the contesting parties to settle their disputes by one of the techniques of ADRs mechanism i.e Mediation. Nothing precluded the defendant company from treating these proceedings as representation of the plaintiff as at that time there was no litigation between them.
40. Further, vide order dated 13-05-2023, at the joint request of both parties the present case was referred to mediation, but it could not be settled there also. That was another opportunity to the defendant company to attend the request of the plaintiff in a positive manner and the same also could have been treated as a request from the side of the plaintiff as these proceedings were also outside the regular court proceedings.
Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 21 of 26)
41. Last but not the least, filling of the present suit by the plaintiff was a notice to the defendant company to consider the claim of the plaintiff and on receipt of the summons of the suit at initial stage itself the same could have been considered by the defendant company as a request of the plaintiff, but it was not done.
42. Thus, the objection of the defendant company that after rejection of cashless facility vide communication dated 30.03.2023 ExPW1/2 (colly), the plaintiff never made any request or representation to the defendant company for reimbursement of the expenditure incurred towards the treatment of the husband of the plaintiff, has no merits and is liable be rejected outrightly.
43. The normal rule which governs civil proceedings is that a fact will be said to be proved if it's proved by a preponderance of probabilities. The principle of preponderance essentially requires the Plaintiff to introduce more or even slightly better evidence than the defence. In other words, this principle could also refer to a more probable and rational view in adjudicating a specific fact/issue. The Merriam Webster Dictionary defines it as the "standard of proof in most civil cases in which the party bearing the burden of proof must present evidence which is more credible or convincing than that presented by the other party or which shows that the fact to be proven is more probable than not.
Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 22 of 26)
44. The concept has been very succinctly explained by the Hon'ble Supreme Court in the case of Narayan Ganesh Dastane v. Sucheta Narayan Dastane [AIR (1975) (SC) 1534] by observing as follows:-
"The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, section 3, a fact is said to be proved when the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact- situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the court has often a difficult choice to make but it is this choice which ultimately determines where. The preponderance of probabilities lies."
45. In the present case the plaintiff has been able to pass the said test of preponderance of probabilities as the Plaintiff's evidence is better than the stand taken by the defendant company. The case as set by the plaintiff on merits is more credible or convincing than that presented by the defendant company.
46. Now coming to the claim, it is not in dispute that the Insurance Policy was of Rs10,00,000/-. During the examination PW1 Rahul Raunak has proved the policy Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 23 of 26) and other medical documents from ExPW1/1 to ExPW1/6 and from ExPW1/9 to ExPW1/12. Although, PW1 was cross examined by the Ld. Counsel for the defendant but the aforesaid documents were not challenged even during the cross examination of the witness. Same is the case with other witnesses also examined by the plaintiff.
47. PW2 Yogesh Kumar Patel has proved the medical documents pertaining to the cash receipts/bills of the patient Dalvinder Singh as ExPW2/1, ExPW2/2 and ExPW2/3; PW3 Parmeet Kaur has proved the medical documents/bills/receipts as ExPW3/1 to ExPW3/10; PW4 Rajeev Lochan has proved the discharge summary of patient as ExPW4/2 and the PW5 Gagan Chandra has proved the bills ExPW5/1 to ExPW5/2 (colly).
48. PW2 to PW5 were not cross examined by the Ld. Counsel for the defendant company despite opportunity being given to them. Their testimonies have gone unrebutted and unchallenged. Meaning thereby, these medical documents/receipts/bills are not in dispute on the basis of which the plaintiff has filed the present claim.
49. Further, as per the terms and conditions of the insurance policy ExPW1/1(colly) (4.6) Pre-hospitalization Medical Expenses and 4.7 Post hospitalization Medical expenses, the defendant company is under obligation to make the payment of pre-hospitalization medical expenses for a period of 60 days immediately preceding the insured Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 24 of 26) person's admission for inpatient care or Day Care Treatment or Alternative treatments or Modern treatments etc. and similarly, defendant company is also under obligation to pay post hospitalisation medical expenses only up to 180 days immediately a patient is discharged from the hospital etc. The case of the plaintiff duly comes under the aforesaid terms and conditions.
50. In view of my aforesaid discussion, the defendant company is under obligation to make the payment to the plaintiff towards the expenditure incurred in respect of the treatment of the patient (husband of the plaintiff) to the extent of insured amount only i.e Rs 10 lakhs. Hence, issue no.1 and 2 are decided in favour of the plaintiff and against the defendant company.
Issue no.3 In case, if the issue no. 2 is decided in affirmative, whether the plaintiff is entitled to the pendentelite and future interest as prayed for in the plaint? If yes, the rate thereof ? (OPP)
51. The plaintiff has claimed the pendente-lite and future interest also. As per the averments made in the plaint, the plaintiff has also claimed the interest @ 12 % p.a on Rs 10,00,000/- w.e.f 30.9.2023 till filing of the suit to the extent of Rs 51,945/-. Keeping in view the overall facts and circumstances of the case, Court is of the view that same is on higher side. Interest of justice would be met by awarding the interest @ 8 % per annum. It has come on the record that the claim of the plaintiff was Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 25 of 26) rejected vide communication dated 25.04.2023 ExPW1/12 and the insurance policy in question was finally cancelled vide communication dated 06.08.2023 ExPW1/11. As noted herein above, the plaintiff has claimed the interest w.e.f 30.9.2023. That being so, the plaintiff would be entitled for the interest @ 8 % on Rs 10,00,000/- w.e.f 30.9.2023 till its actual realization.
Issue No.4 Relief
52. In view of my aforesaid discussion, the present suit is decreed in favour of plaintiff and against the defendant company and following reliefs are granted:-
(i.) Plaintiff is entitled to recover Rs 10,00,000 (Rs Ten lakh only) from the defendant company .
(ii) Plaintiff is also awarded interest @ 8 % p.a on Rs 10,00,000/- w.e.f 30.9.2023 till its actual realization
(ii) Cost of the suit is also awarded to the plaintiff.
53. Decree sheet be prepared accordingly
54. File be consigned to Record Room, after due compliance. RAJESH by Digitally signed RAJESH KUMAR GOEL KUMAR Date:
GOEL 2025.01.08 15:10:16 +0530 (Rajesh Kumar Goel) District Judge (Commercial Court)-02 Central District, Tis Hazari Courts, Delhi 07.01.2025 Announced in the Open Court today i.e: 07.01.2025 (digitally signed on 08.01.2025) Mrs. Arvinder Kaur Vs Niva Bupa Health Insurance Company Dated 07.01.2025 (Page No. 26 of 26)