Dr Soumya Suseelan P vs Max Bupa Health Insurance Co.Ltd., Rep. ...
2026 Latest Caselaw 787 Ker

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.

2026:KER:6560

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-

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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.

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

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

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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

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/

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-

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