KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 41/2006
JUDGMENT DATED:19-11-2010
PRESENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
The Manager,
Oriental Insurance Co.,
Annapoorna Mandir, : APPELLANT
Kollam Road, Alappuzha.
(By Adv. Sri.G.S. Kalkura)
Vs.
Sri.Baby Kumaran,
Panchajanyam, : RESPONDENT
Avalookkunnu.P.O,
Alappuzha.
JUDGMENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant was the opposite party and respondent was the complainant in OP.A.19/03 on the file of CDRF, Alappuzha. The complaint therein was filed alleging deficiency of service on the part of the opposite party/Oriental Insurance Company Ltd in repudiating the insurance claim by the repudiation letter dated:25/2/2002. Notice was served on the opposite party and opposite party entered appearance. He filed written version denying the alleged deficiency of service. It was contended that the complainant while submitting the proposal for the insurance policy suppressed material facts by concealing the earlier treatment undergone by the insured persons. Thus, the opposite party justified their action in repudiating the insurance claim.
2. Before the Forum below the complainant was examined as PW1 and Exts.A1 to A6 documents were marked on his side. From the side of the opposite party RWs 1 to 4 were examined and B1 to B8 documents were also produced and marked. At the instance of the opposite party X1 series of treatment record was produced from Sahrudaya Hospital, Thathampally, Alappuzha. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:26th April 2005 allowing the complaint and directing the opposite party to disburse Rs.89,721/- towards the medical expenses incurred by the complainant for the treatment of the complainant’s father Sri.Kumaran. The opposite party was also directed to pay interest at the rate of 9% per annum with cost of Rs.250/-. Hence the present appeal.
3. This commission was pleased to hear the learned counsel for the appellant/opposite party and the respondent/ complainant. The counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on the testimony of RWs 1 and 2 the doctors who had occasion to treat the insured Kumaran and also X1 series of treatment record produced from Sahrudaya Hospital, Thathampally, Alappuzha and also Ext.B3 medical certificate and B5 discharge summary. He further submitted that the Forum below failed to appreciate the evidence available on record in its correct perspective. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below and for dismissal of the complaint in OP.A.19/03 on the file of CDRF, Alappuzha. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below. He relied on the testimony of RW2 regarding the treatment given to the insured Kumaran and the complete recovery of the patient from the illness. Thus, the respondent prayed for dismissal of the present appeal.
4. The fact that the respondent/complainant and his father Kumaran were insured by A1 mediclaim policy for the period from 28/8/2000 to 27/8/2001 is not in dispute. It is to be noted that the said mediclaim policy was renewed for the succeeding year for the period from 28/8/2001 to 27/8/2002. The issuance of the said mediclaim policy is admitted by the appellant/opposite party, Oriental Insurance Company Ltd. Ext.B1 is the proposal form submitted by the respondent/complainant as proposer for joining the mediclaim insurance scheme. Ext.B1 proposal form was submitted by the respondent/complainant. He was examined as PW1. He admitted his signature in B1 proposal form. The declaration given by the complainant would show that the complainant and his father were having good health and they had not undergone any treatment previously for any sort of ailment. It is also declared by the respondent/complainant that the insured persons had not been undergone treatment for any sort of neurological disorders. It is based on B1 proposal the mediclaim policy was issued in the name of the complainant Baby Kumaran and his father K.K.Kumaran as the insured persons.
5. The complainant submitted mediclaim for Rs.89,721/- in connection with the medical treatment of his father Kumaran for the period from 20/7/2001 to 17/10/2001. Admittedly the complainant’s father Kumaran was also having the mediclaim insurance coverage during the relevant period. The aforesaid claim for Rs.89,721/- was repudiated by the opposite party/Oriental Insurance Company Ltd vide repudiation letter dated:25/2/2002. Ext.A4 is the repudiation letter dated:25/2/2002 issued by the appellant/opposite party to the respondent/complainant. In A4 repudiation letter it was specifically stated that the insured Baby Kumaran suppressed the material facts regarding the treatment of the insured Kumaran while submitting the proposal with the declaration therein. It is also stated that the complainant deliberately concealed material facts regarding the illness and treatment undergone by the insured Kumaran while submitting the proposal for getting mediclaim insurance policy.
6. The material aspect for consideration is regarding the alleged suppression of material facts. The definite case of the appellant/opposite party, insurance company is regarding the suppression of material facts in respect of the health condition of the insured Kumaran. B1 proposal for the mediclaim policy was submitted on 28/8/2000. The evidence of RW2, Dr.Panduranga Hegde and Ext.X1 treatment records and B3 certificate issued by RW2 would make it crystal clear that the insured Kumaran had undergone treatment for Basal Ganglion Hemorrhage from 1994 onwards. It would also show that the aforesaid disease of Basal Ganglion Hemorrhage is a neurological problem affecting a portion of the brain. The testimony of RW2 would further show that the complainant’s father continued treatment as an outpatient during the period from 24/10/1994 to 6/8/1997 and thereafter from 8/7/1997 to 14/7/1997; then again from 11/9/1999 to 29/9/1999. The testimony of RW2 is sufficient enough to substantiate the case of appellant/opposite party/insurance company that the respondent/ complainant suppressed material facts regarding the state of health and the previous illness of the insured Kumaran. Ext.B3 certificate issued by RW2 would also strengthen the testimony of RW2 and the fact that the insured Kumaran was having various illnesses previous to the submission of B1 proposal for the mediclaim policy.
7. The evidence of RW2 is further fortified by the testimony of RW1, Dr.Mathew Abraham and B5 discharge summary issued from Indira Gandhi Co-operative Hospital and B6 Medical Certificate issued by RW1, Dr.Mathew Abraham who was attached to Indira Gandhi Co-operative Hospital, Kochi. The other documentary evidence regarding the treatment of late Kumaran would also show that the insured, Kumaran had undergone treatment previous to the submission of B1 proposal for the mediclaim policy. Thus, the materials available on record are sufficient enough to come to a definite conclusion that the respondent/complainant deliberately concealed the material facts regarding the treatment history of the insured, Kumaran. The appellant/opposite party, insurance company succeeded in establishing their case that the respondent/complainant suppressed material facts while submitting B1 proposal for the mediclaim insurance policy. If that be so, the appellant/opposite party, insurance company is perfectly justified in repudiating the insurance claim by issuing A4 repudiation letter dated:25/2/2002. But unfortunately, the Forum below failed to appreciate the oral and documentary evidence adduced from the side of the opposite party/Oriental Insurance Company Ltd. The Forum below cannot be justified in ignoring the oral as well as documentary evidence adduced from the side of the opposite party and allowing the complaint in OP.A.19/03. This State Commission have no hesitation to interfere with the impugned order passed by the Forum below and to dismiss the complaint in OP.A.19/03.
In the result, the appeal is allowed. The impugned order dated:26th April 2005 passed by CDRF, Alappuzha in OP.A.19/03 is set aside. The complaint therein is dismissed. Parties to this appeal are directed to suffer their respective costs throughout.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
