Dr Ganesan A/L Periasamy v Great Eastern Life Assurance (Malaysia) Berhad (WA-22NCC-447-10/2021)

The Plaintiff’s claim against the Defendant in this action is regarding two insurance policies. A]

The Plaintiff is a medical practitioner who applied for and obtained two life insurance policies from the Defendant.

On 29.3.2020, the Plaintiff applied for insurance coverage through proposal forms submitted to the Defendant. Two policies were subsequently issued: i) Policy No. 103779682-7 for RM3,000,000 ii) Policy No. 103648316-5 for RM250,000

The policies were applied for on 29.3.2020. The Defendant forwarded the policy documents to the Plaintiff via electronic mail on 9.4.2020. The commencement date of both policies was also 9.4.2020.

Both policies contained a 60-day Waiting Period clause, which excluded coverage for any condition for which signs or symptoms existed during the Waiting Period. This Waiting Period commenced from 9.4.2020 and ended on 8.6.2020.

On 8.5.2020, the Plaintiff underwent a CT Urography at Prince Court Medical Centre (“PCMC”). The report, dated 12.5.2020, recorded “mild right hydronephrosis and right hydroureter, right renal upper pole nodule and retroperitoneal, peritoneal, pelvic and inguinal lymphadenopathy.”

Subsequently, on 13.7.2020, the Plaintiff was diagnosed with Stage III follicular lymphoma. He submitted claims under both policies on 2.9.2020.

The Defendant rejected the claims via letters dated 2.2.2021 and declared both policies null and void from inception under letters dated 8.2.2021 and 22.2.2021, citing material non-disclosure, application of the exclusion clauses, and submission of a tampered medical report. B]

The issues for determination in this action can be summarised as follows: i) Whether the Plaintiff failed to disclose material facts in breach of his pre-contractual duty of disclosure under the Financial Services Act 2013; ii) Whether the signs and symptoms of follicular lymphoma existed during the Waiting Period such that the exclusion clauses in the policies apply; iii) Whether the Plaintiff breached his duty of utmost good faith by submitting a tampered CT Urography report; iv) Whether the Plaintiff is estopped from being denied coverage based on the Defendant’s alleged conduct, including failure to explain exclusions and delivery of policy documents. Page 4 of 14 C]

The Plaintiff argued that he had disclosed all relevant medical information and that any omissions were not deliberate or reckless.

The Plaintiff contended that the Defendant failed to prove that the alleged non-disclosures were material to the underwriting decision.

The Plaintiff disputed the authenticity and relevance of certain medical reports and argued that the exclusion clause should not apply. D]

The Defendant contended that the Plaintiff made deliberate and/or reckless misrepresentations in the proposal forms and medical statement by failing to disclose: i) A prior consultation with Dr Rajesh (DW5) on 2.12.2010 for chest pain and suspected heart attack; ii) An echocardiogram conducted at Narayana Institute of Cardiac Sciences, Bangalore, India on 28.12.2018 showing left ventricular hypertrophy; iii) Various other medical conditions and consultations.

The Defendant argued that these non-disclosures were material to the underwriting decision and that had they been known, the policies would not have been issued.

The Defendant further alleged that the Plaintiff tampered with medical documents, particularly the CT urography report, in breach of his duty of utmost good faith. E]

The applicable legal framework is found in the Financial Services Act 2013 (“FSA”), particularly Schedule 9 which governs pre-contractual duty of disclosure and remedies for misrepresentation in insurance contracts.

Under paragraph 7 of Schedule 9 of the FSA, to void insurance policies, the Defendant must prove on the balance of probabilities that: i) There was misrepresentation (non-disclosure) by the Plaintiff of material facts. ii) Such misrepresentation was made deliberately and/or recklessly. iii) If the true facts were known, the Defendant would not have entered into the policy contracts or would only have done so on different terms. Page 6 of 14 F]

The Plaintiff failed to disclose that an echocardiogram done at Narayana Institute of Cardiac Sciences in India on 28.12.2018 had shown left ventricular hypertrophy (“LVH”). This information was not included in either the proposal forms or the health questionnaire completed on 1.4.2020.

The Plaintiff contended that the echocardiogram was part of an informal, exploratory visit, not linked to any symptoms, and that the finding was later disproved by a normal CT coronary angiogram. However, no corroborating documents (e.g., referral letters or context-setting notes) were provided. The Defendant produced the report, which bore the Plaintiff’s name and clinical findings. The Plaintiff’s assertion that the test was casual is inconsistent with the setting, and with his own admission that he retained the report. I find that the non-disclosure was material and unjustified.

Dr Zainal Abidin (DW1) testified that a CT angiogram does not override an echocardiogram’s findings of LVH. I accept his expert view, which was not rebutted by any opposing medical evidence.

The relevant question in the Defendant’s proposal form, “Have you ever had or been told you had heart disease or any abnormal result from medical investigation?”, was clear and specific. The Plaintiff answered “No.” This triggers the statutory Page 7 of 14 presumption under paragraph 7(8) of Schedule 9, FSA, which deems that the proposer knew the relevance of the matter.

Ms. Yamoana Jessica a/p Chinasamy, the Manager in the New Business (Underwriting) Department of the Defendant (DW7), testified that had the LVH been disclosed in the proposal forms and/or medical statement, the Defendant would not have issued the policies but would have instead requested further details to enable the Defendant to decide whether to accept the proposals and issue the two policies or not, and if so, to decide the terms of the policies to be offered or quoted.

The Defendant’s expert, Dr Zainal Abidin (DW1), testified that a CT coronary angiogram is not a diagnostic substitute for an echocardiogram in detecting LVH.

The evidence of DW1 and DW7 is unrebutted and as such I accept the testimonies of these Defendant’s witnesses (Takako Sakao v. Ng Pek Yuen [2009] 6 MLJ 751).

The questions in the proposal forms were clear and specific. Question 4(a) of the Health & Medical Questionnaire asked: “Have you ever had or been told you had heart disease or any abnormal result from medical investigation?” The Plaintiff answered “No.”

The presumption under paragraph 7(8), Part 2 of Schedule 9 to the FSA applies: if a proposer is asked a clear and specific Page 8 of 14 question, the insurer is deemed to have communicated the importance of that matter. The Plaintiff, being a medical practitioner, was acutely aware of the import of such a question.

The Plaintiff’s contention that he did not believe it was necessary to disclose is not a valid excuse under the FSA. The duty is not qualified by subjective views.

I find the non-disclosure both material and reckless, particularly given the Plaintiff’s medical background.

These non-disclosures were clear breaches of the Plaintiff’s duty to answer truthfully the clear and specific questions posed in the proposal forms regarding his medical history. G]

Both policies contain exclusion clauses that bar coverage for any condition if signs or symptoms are present during the Waiting Period.

The CT Urography of 12.5.2020 showed widespread lymphadenopathy. Dr Zanapiah (DW2), Consultant Haematologist, stated that these are radiological signs of lymphoma. Dr Nur Thaqifah (PW2), did not dispute this and recommended further investigations.

The Plaintiff argued that lymphadenopathy is nonspecific and that lymphoma was not diagnosed until July 2020. He also urged that adverse inferences be drawn from the Defendant’s failure to call the radiologists involved.

I disagree. The medical experts on record had the necessary qualifications to interpret the CTU. The Plaintiff, himself a doctor, sought specialist review at HKL based on these findings. He was then referred to Haematology and Urology departments at HKL. This sequence of actions indicates that the CTU findings were clinically significant and prompted medical concern.

Thus, the threshold for signs and symptoms under the exclusion has been satisfied for the clause to be invoked. H]

The Plaintiff claimed he was unaware of the exclusion clauses and that the Defendant’s agent did not explain the policy terms.

However, the Statement of Agreed Facts confirms the policies were emailed on 9.4.2020. The Plaintiff acknowledged in cross-examination that he had access to them. An insurer is not required to orally explain every clause. There is also no evidence of any express waiver nor any legal obligation on the Page 10 of 14 Defendant to orally highlight exclusion terms. Accordingly, these arguments do not assist the Plaintiff.

I find that estoppel or waiver does not apply in the present case. I]

The CTU report submitted to the Defendant bore a scan date of 28.5.2020 and report date of 1.6.2020. However, PCMC records showed the actual dates as 8.5.2020 and 12.5.2020.

The Plaintiff denied any manipulation of the CTU report. While he maintained that he submitted the report as received from PCMC, no credible explanation was provided for how a version bearing different dates (scan date altered from 8.5.2020 to 28.5.2020 and report date altered from 12.5.2020 to 1.6.2020) came to be in the Defendant’s possession.

The Defendant contends that the Plaintiff was motivated by a mistaken belief regarding the calculation of the Waiting Period, specifically, that it commenced from the date of the proposal form (29.3.2020) rather than from the actual risk commencement date (9.4.2020). Based on this incorrect premise, the Plaintiff calculated that the Waiting Period ended on 27.5.2020, thereby making the altered date of 28.5.2020 appear to fall just outside the Waiting Period. The Plaintiff alleges that this flawed understanding prompted the Defendant to tamper with the CTU report.

PCMC confirmed the discrepancy and lodged a police report.

Having reviewed the evidence, I conclude that the version of the CTU report submitted to the Defendant had been tampered with.

However, I do not make a positive finding that the Plaintiff himself was the person responsible for the tampering. Nonetheless, in the absence of any satisfactory explanation, I find that the Plaintiff’s conduct in submitting a document with materially incorrect dates was at least reckless and amounted to a breach of the duty of utmost good faith.

In Veheng Global Traders Sdn Bhd v. AmGeneral Insurance Bhd & Anor and Another Appeal [2019] 7 CLJ 715, the Federal Court held that if the insured knowingly makes a false or fraudulent claim, whether regarding the amount or any other aspect, the entire claim under the policy becomes void, and all rights to claim under the policy are forfeited. In this regard the Federal Court held as follows: “[40] In the present case‚ the Court of Appeal‚ in its evaluation of the whole evidence in total based on established principles in interpretation of contract and breach of contract‚ had applied the correct approach of ‘fraudulent claim’, not on ‘collateral lies’ as formulated in Versloot Dredging (supra). Based on that evaluation‚ the Court of Appeal had come to a correct finding that the insured had indeed utilised false or Page 12 of 14 forged documents in order to obtain benefits under the policies. The insured’s claim was clearly a fraudulent claim. The insured claim had never been a “justified claim” on collateral lies. We agree with the following findings of the Court of Appeal‚ as at para. [64] of the judgment It is my judgment that the appellants have succeeded in proving that some of the documents submitted (Veheng) were false or forged. … As such on the false documents alone‚ (Veheng’s) claim is fraudulent and ought to be dismissed based on the breach of Condition 15 of the FMD Policies and Condition 12 of the FCL Policies and (Veheng’s) common law duty to act in good faith …” (own emphasis added) J]

The Defendant has established grounds to repudiate the Plaintiff’s claims, based on the following: i) Material non-disclosure of medical history. ii) Application of the exclusion clause. iii) Breach of the duty of utmost good faith.

For the reasons stated above, the Plaintiff’s claim is dismissed with costs. Dated this 5th day of August, 2025 -SGD- (WAN MUHAMMAD AMIN BIN WAN YAHYA) Judge High Court of Malaya, (Commercial Division (NCC 3)) Kuala Lumpur COUNSEL FOR THE PLAINTIFF : Keshvinjeet Singh (Kumaradevan Rajadevan together with him) Messrs Gunaseelan & Associates Unit B-2-1, VIVA, No. 378, Jalan Ipoh, 51200 Kuala Lumpur Tel: 03-40453421 / 3091 Email: lakum97@gmail.com Page 14 of 14 COUNSEL FOR THE DEFENDANT : Wong Hok Mun (Koh Pei Siah together with him) Messrs Wong Hok Mun Partnership D3-5-5, Block D3, Solaris Dutamas, No. 1 Jalan Dutamas 1, 50480 Kuala Lumpur Tel: 03-30057570 Email: elainekoh@whmp.com.my

Takako Sakao v. Ng Pek Yuen [2009] 6 MLJ 751

Veheng Global Traders Sdn Bhd v. AmGeneral Insurance Bhd &