Sri Shyamal Gupta, Member

          Present Appeal is directed against the Order dated 20-12-2016 passed by the Ld. District Forum, South 24 Parganas in C.C. No. 429/2015 whereof the complaint has been allowed.  Being aggrieved by and dissatisfied with the same, OP thereof has preferred this Appeal.

          In short, case of the Complainant is that her wife got admitted at a Private hospital for pacemaker implantation on 03-07-2015.  Thereafter, she was again admitted at a different hospital on 31-07-2015 for Gastritis etc.  Complainant’s claim in respect of both the cases being repudiated by the OP Insurer, the instant complaint was filed before the Ld. District Forum.

          By filing a WV, it is stated by the OP that the patient had undergone right Radical Mastectomy (Breast surgery)  in the year 1998 followed by Chemotherapy.  However, the Complainant suppressed such material fact while obtaining the mediclaim policy concerned.  For such willful suppression of material fact, the claims were rightly repudiated by the OP.

Decision with reasons

          Heard both sides on the matter and perused the material on record carefully.

          The claims of the Respondent, as it appears, were repudiated primarily on the ground of suppression of medical history in respect of the Respondent’s wife, more precisely, the fact of undergoing breast surgery and chemotherapy in the year 1998.  Although the Respondent stated that such surgical treatment was carried out in the year 1988.

          On a reference to the photocopy of the proposal form on record, it transpires that the wife of the Respondent disclosed that she had “problem of kub, past surgical complications and sinus related problems”.

          It is absolutely clear from the above declaration that past medical history in respect of Respondent’s wife was briefly declared.  One wonders, despite such declaration in the proposal form, why the Appellant did not insist for medical papers pertaining to surgical interventions or other complication from the Respondent before issuance of the Mediclaim Policy in question. 

It is to be kept in mind that in terms of Sec. 19 of the Contract Act, even if consent to an agreement is caused by coercion, misrepresentation, or fraud, it does not necessarily render the contract void if it is found that the party to the contract, whose consent was so caused by fraud, misrepresentation or coercion had the means of discovering the truth by ordinary diligence.  In this case, in view of the declaration made by Respondent’s wife, why the Appellant did not insist for past medical papers, it is for them to introspect. 

By allowing the complaint, the Ld. District Forum, therefore, committed no legal infirmity.  The Ld. District Forum though directed the Appellant to reimburse the entire expenditure incurred by the Respondent for the purpose of treatment of her wife, it appears from the documents on record that the policy was taken for a sum insured of Rs. 2,00,000/-. It is obvious, therefore, that the liability of the Appellant, under any circumstances, cannot exceed the aforesaid sum insured.  Differently put, the beneficiary cannot claim a single penny in excess of the sum insured of the mediclaim policy concerned. 

Further, in terms of Exclusion Clause No. 5, 30% of the claim amount is required to be borne by the Insured in case of all claims save and except in respect of pre-existing diseases.  Since no document is furnished from the side of the Appellant to show that the concerned treatment was the outcome of pre-existing diseases, to our mind, 30% of the claim amount has to be shouldered by the Respondent.  The impugned order, thus, invites our intervention to a limited scale. 

The Appeal, thus, succeeds in part. 

Hence,

O R D E R E D

that A/60/2017 be and the same is allowed on contest in part.  The impugned order is modified to the extent that the Appellant shall reimburse Rs. 1,40,000/- being insurance benefit within 45 days hence together with the compensation and litigation cost as ordered by the Ld. District Forum.  In case the Appellant fails to ensure due compliance of this modified order, it shall be liable to pay simple interest @ 9% p.a. over Rs. 1,40,000/- from this day till full and final payment is made.