<br /> <br /> By SRI.K. VIJAYAKUMARAN ACHARY, PRESIDENT.<br /> <br /> This is a complaint filed by the complainant for cancellation of revocation of policy and Rs.20,000/- as compensation and cost.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant has taken a Tailor made group medi claim policy on 19.9.2002 remitting Rs.3250/-. The validity of the policy was from 19.9.2002 to 18..9.05. As per the policy conditions if the insured incur expenditure towards treatment for disease Rs.25,000/- will be given. After 6 months of taking the policy the complainant suffered a minor attack. This fact was informed to the 2nd opp.party who contacted the first opp.party and a claim was submitted to the 1st opp.party. On 9.9.2003 the claim was repudiated by the fist opp.party on the ground of pre existing disease. It was further informed that the policy taken by the complainant was also cancelled. Though the complainant expressed his willingness to under go medical examination at the time taking the policy opp.party 2 said that it is not necessary. The complainant was not suffering from any disease before taking the policy. On repudiation of the claim the complainant issued a advocate notice for which the opp.party issued a reply stating that the complainant was suffering from hypertension and diabetes which he had suppressed and therefore, the opp.party has every right to cancel the policy. Hence the complaint. <br /> <br /> The opp.parties filed a version contending, interalia, that the complaint is not maintainable either in low on or facts. The complainant has approached the Forum with unclean hands by suppressing material facts. The definition complaint, complainant, Consumer Dispute, service as defined in section 2[1] of the Consumer Protection Act do not cover the claim made out in the complaint. It is admitted that the opp.party had issued a Tailor made group medi claim policy to the complainant for a sum of Rs.25,000/- for the period from 19.9.2002 to 18.9.2005. It is a duty and obligation on the part of the assured to fully disclose all material facts which would affect the mind of this opp.party whether to accept the risk or not and on what terms. The opp.party had issued the medi claim policy to the complainant fully trusting on the declaration given in the proposal form. The complainant had deliberately given false declaration in the proposal form about his medical history and the existing illness and disease he was suffering at the time of proposing for the insurance. The complainant was infact suffering from in the diabetes for the last 10 years and Hypertension for the past 3 years. Diabetes and hypertension are alterable coronary risk factors and patient with these diseases are more likely to get coronary artery disease. The complainant had given no correct statement, answer or particulars for the questionnaire given in the proposal form. He has not mentioned anything about history of diabetes and hypertension or any disease in the proposal form. As per the medical history of the complainant given by the treated Doctor the complainant was a chronic patient of diabetes mellitus and hypertension. The concealment of material fact in the proposal form would avoid the policy and the contractual obligation of this opp.party to indemnify the risk given under the policy. The treatment taken by the complainant for the coronary artery disease is the complication arising from the prolonged pre existing disease via. Diabetes and hypertension. An investigator deputed by the 1st opp.party who has also filed a report stating that the complainant was suffering from diabetic for the last 10 years and hypertension since 3 years. As per the exclusion clause No.4.1 of the insurance policy the company shall not be liable to make any payments under the policy in respect of the treatment expenses for the diseases claimed by the complainant. The claim was repudiated for valid reasons. The Coronary Artery disease is a complication arising from the diseases such as diabetes mellitus and systemic hypertension. The complainant has no cause of action against the opp.party there is no deficiency in service on the part of the opp.parties. Hence the opp.party prays to dismiss the complaint with their costs.<br /> <br /> <br /> <br /> Points that would arise for consideration are:<br /> <br /> 1. Whether there is deficiency in service on the part of the opp.party<br /> 2. Reliefs and cost.<br /> <br /> <br /> <br /> For the complainant PW.1 is examined. Exts. P1 to P7 are marked.<br /> <br /> <br /> For the opp.party DW.1 is examined. Ext. D1. to D7 are marked<br /> <br /> <br /> Point 1 and 2:<br /> <br /> There is no dispute that the complainant as an insured of the 1st opp.party by virtue of Ext.P1. The case of the complainant is that he suffered a Mio-cardial infraction and was admitted in the Vijaya hospital, Kottarakkara on 10.12.2002 and was discharged on 17.12.2002 and when he submitted a claim towards the treatment expenses the same was repudiated and the policy cancelled by the 1st opp.party as per Ext.P3 on the ground of pre existing disease and suppression of material facts. The definite contention of the complainant is that he was not suffering from any disease when he joined the scheme and that opp.party has no right to cancel the policy without giving notice to him.<br /> <br /> The contention of the opp.party is that the complainant was a chronic diabetic and hypertensive patient and while applying for the insurance policy he has suppressed these illnesses in the proposal form. Ext.D7 is the proposal form. Ext.D7 the proposar has stated that the existing disability and existing diseases are nil. Ext.D4 is the letter issued by the doctor who treated the complainant and Ext.D2 is the discharge summary. In Ext.D2 the doctor has stated that 54 year old male, diabetic, hypertensive with history of left sided chest discomfort. In Ext.D4 he has stated that the complainant was detected to have diabetes for 10 years back and hypertension 3 years back. Ext.P1 policy was taken on in September, 2002. As already stated in Ext.D7 the complainant has stated that existing disability and diseases are nil. Ext.D2 and 4 would show that the complainant was suffering from chronic diabetes and hypertension at the time when the policy was taken from which it is obvious that there is material suppression in Ext.D7.<br /> The learned counsel for the complainant would argue that the claim is made for Mio-cardial infraction and not for diabetes or hypertension and so he is eligible to get the claim. It is argued by the counsel for opp.party that even if the claim is not in respect of pre existing disease the disease for which the complainant had undergone treatment is one arising out of pre-existing condition and so they are justified in repudiating the claim. The further contention is that there is material suppression in Ext.D7 with regard to pre existing disease and under section 45 of the Insurance Act 1938 they are entitled to repudiate the claim as well as the policy within 2 years. He would canvass the point that in cases of this nature it is not necessary for the insurer to establish that suppression was fraudulently made by the policy holder or that he must have been aware at the time of making the statement that the same was false or that the fact was suppressed which was material to disclose relying on the decision of Apex Court reported in 2008 [1] KLT 698. A deliberate wrong answer which has a great bearing on the contract of insurance if discovered may lead to the policy being vitiated in law and reliance can be drawn from the decision of Apex Court reported in 2008 [1] KLT 698. He would further argue relying on the very same decision that as per section 45 of the Insurance Act 1938 any policy can be called in question and repudiated within a period of 2 years from the date of inception of policy if there was any material suppression and in the case in hand there is material suppression regarding diabetes and hypertension and therefore repudiation is valid . As a matter of fact by any stretch of inauguration it cannot be presumed that the complainant was not aware of diabetes which was present for the last 10 year and hypertension for the last 3 years. In Ext.D7 complainant has stated that pre-existing diseases are nil which, as argued by the opp.party is a material suppression and as such the repudiation of contract is valid. Point found accordingly.<br /> <br /> <br /> Since the policy has been repudiated the complainant is entitled to get back the premium remitted by him.<br /> <br /> <br /> <br /> In the result the complaint fails and the same is dismissed. The opp.parties are directed to refund the premium collected from the complainant within one month from the date of this order. No costs.<br /> <br /> <br /> <br /> Dated this the 20th day of May, 2008<br /> <br /> <br /> I N D E X <br /> <br /> List of witnesses for the complainant<br /> PW.1. – George John.<br /> <br /> List of documents for the complainant<br /> P1. p Insurance Certificate<br /> P2. – Notice<br /> P3. – Repudiation letter<br /> P4. – Advocate Notice<br /> P5. – Postal receipt<br /> P6. – Acknowledgement card<br /> P7. – Reply notice<br /> <br /> List of witnesses for the opp.party<br /> DW2. – Sabu<br /> DW2. – Michel Antony<br /> <br /> List of documents for the opp.party<br /> D1. – Claim Form<br /> D2. – Discharge summary<br /> D3. – Letter sent by Insurance Investigator to the Dr. Jabir.<br /> D4. – D3 reply<br /> P5. – Investigation report<br /> D6. Repudiation letter<br /> D7. – Proposal Form.. <br /> <br />