SRI.K. VIJAYAKUMARAN, PRESIDENT. Complaint claiming insurance amount of Rs.43384/-, compensation of Rs.10,000/- and costs. The averments in the complaint can be briefly summarized as follows: The complainant has been a subscriber of Mediclaim Insurance Policy issued by the 1st opp.party. The authorized agent came to the house of the complainant and explained the benefits and importance of the health medical expenses policy and because of the compulsion and instigation the complainant had joined the said policy for himself and his family consisting of 2 members. . The complainant paid Rs.2819/- on 26.4.2004 to the said agent and subsequently a policy was issued . The validity of policy period was from 27.5.2004 to 26.5.2005. On January 2005 the complainant developed back pain and out of severe back pain he consulted Dr. Cheriyan Thoma, S.P. Fort Hospital, Thiruvananthapuram on 28.3.2005 and after elaborate check up the doctor opined that the complainant has intervertabal Disc prolapse L4.L5 with right Sciatica. Hence as advised by the Doctor the complainant was admitted in the SP Fort Hospital and undergone a surgery on 9.4.2005. He was discharged on 14.4.2005. When the complainant preferred a claim for reimbursement of the amount his claim was repudiated. Hence the complaint. The opp.party filed a version contending interalia, that the complaint is not maintainable either in law or on facts. The complainant is filed as an experimental measure. It is true that the complainant has taken a Health plus medical expense policy for a period of one year from 27.5.2004 to 26.5.2005. But the opp.parties are not liable to make any payment in respect of expenses incurred by the insured under the exclusion clause of the policy. The complainant has pre-existing disease and under clause 3.4 the insurer has no liability in the event of misrepresentation, misdiscription or non discloser of material facts If such claim be in any manner fraudulent or supported by any fraudulent means or advice whether by the insured person or any person acting on his behalf . More over the type of decease for which treatment was availed are completely excluded in the policy under the exclusion clause. The averments that on January onwards the complaint felt back pain and for severe back pain he consulted Dr. Cheriyan Thomas, S.P. fort Hospital, on 28.3.2005 and found that he had Disc prolapse L4-L5 with right Sciatica etc. are absolute falsehood. The complainant had pre-existing decease and discomfort of the type as mentioned above from 2001 onwards. The complainant sustained injuries on hip right and dislocation in a motor accident happened on 2.11.2001 and from 3.11.2001 onwards he was under the treatment of the said doctor. He had symptoms of back pain also in connection with the injuries sustained in the said accident. He filed a petition before the MACT, Kollam as OP[MV] No.1736/2001. The complainant was continuing treatment for back pain also long prior to the date of commencement of the policy. The complainant was deliberately suppressing the pre existing injuries sustained in and earlier treatment done for the same. The back pain is a subsequent discomfort of the injuries which was subsisting at the time f when the proposal form for the policy was submitting. In the questionair in the proposal form with regard to the medical history to be disclosed by the proposer or insurer, he falsely stated that he is in good health and free from physical infirmity or medical complaints. The non disclosure amounts cheating against the insurer. When the claim application was received the opp.party made all investigation with a view to ascertain the facts through a qualified investigator who conducted detailed investigation report that the complainant was suffering from the above said decease from 3.11.2001 onwards Therefore the claim was repudiated. According to expert medical opinion interverterbral disc prolapse and back pain can been caused due to fall on a hard object, road accident and consequent injuries on the backbone etc. The complainant’s back pain can be caused due to the complications developed after the road accident, which is long prior to the date of commencement of the policy. The complainant was fully aware of the disc prolapse before submitting the proposal form. The complainant has deliberately took the policy before the date of surgery by knowing the necessity of the surgery to be done by suppressing the material facts. The complainant is lnot entitled to get any relief from the opp.parties. The complainant has no cause of action, hence the opp.party prays to dismiss the complaint with their costs. Points that would arise for consideration are: 1. Whether the complainant was suffering from any preexisting disease at the time of taking the policy. 2. Whether there was any suppression of material facts which would the vitiate the insurance policy. 3. Reliefs and costs. For the complainant PW.1 is examined. Ext.P1 to P6 are marked. For the opp.parties DW.1 is examined. Ext. D1 to D10 are marked. Points: It is not disputed that the complainant is an insured of the opp.parties and that at the time when the complainant has under gone surgery the policy was subsisting. According to the complainant he has incurred an expenditure of Rs.43384/- for his treatment at S.P. Fort Hospital Trivandrum and when he preferred the claim for the above sum, the opp.parties repudiated his claim without any valid reason. The opp.parties contents that the complainant was having pre-existing disease at the time of taking Ext.P1 policy and therefore under exclusion 2 [1] of the policy. The opp.parties are not liable to make any payments under policy in respect of any claim incurred in connection with or in respect of disease which are pre-existing. It is argued by the learned counsel for the opp.parties that the complainant had sustained an accident earlier for which he had under gone treatment at the SP. Fort hospital, Thiruvananthapuram evidenced by Ex. D4 and D5. which are respectively the claim petition before the MACT., Kollam and the award passed by the MACT allowing a sum of Rs.65,400/- as compensation. The definite contention of the opp.parties is that the back pain alleged to have been developed by the complainant is a consequence of the above accident and consequent surgery. In the version the opp.parties have raised a contention that the complainant sustained road traffic accident and the back pain developed by the complainant is a consequence of the such accident which occurred prior to the taking of policy. Despite such an averment in the complaint, the complainant did not make any attempt to prove that the back pain developed by him in the year 2005 is not due to the accident and consequential surgery by examining competent persons. Therefore, there is considerable force in the contention of the opp.parties that the back pain was a pre-existing illness. The 2nd contention advanced by the opp.parties is that there is material suppression on the side of the complainant. It is argued that inExt. D3 proposal form under medical history the complainant has stated false information which would vitiate a contract of insurance. Under the clause Medical history of Ext.P3 Are you in good health and free from physical and mental disease or infirmity it is stated Yes. Under 2nd item have you even suffered from any illness or disease upto the date of making the proposal. The answer given is no Under 3rd item do you have any physical defect or deformity, the answer is no. Under 4th item have you ever been admitted to any hospital/nursing home/clinic for treatment or observation ? the answer given is no. According to the opp.parties the answers given above by the complainant are false which can be seen from Ext.D4 and D5 which would establish beyond doubt that the complainant sustained injuries for which he has undergone treatment and received compensation from the Motor Accident Claim Tribunal, Kollam. It is further argued that these are material suppression which would vitiate the contract of insurance. It is well settled that the contract of insurance is a contract Uberrimafides and every fact of material must be disclosed. Otherwise there is good ground for recession of contract. The duty to disclose of material facts continues right up to the conclusion of the contract. The learned counsel for the opp.parties argued that the proposal can be repudiated if a fraudulent act is discovered at any time The complainant’s counsel would argue that the entries in the proposal form were made by the agent of the opp.party and there is no fraudulent act on the side of the complainant. That argued cannot be accepted. Even assuming that an agent of the insurance company has fill in the application the information for the same must have been furnished by the complainant and the liability of the information furnished in the proposal form can only be to the person who puts his signature on the proposal form. It cannot be believed by any stretch of imagination that the complainant was not aware of the fact that he sustained injuries in the road accident and had undergone treatment at the time of taking policy. In the Supreme Court decision reported in 2008 [1] KLT 698 it was held that it was not necessary for the insurer to establish that the suppression was fraudulently made by the policy holder or that he must have been aware at the time of making statement that the same was false or that the fact was suppressed which was material to disclose. 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. In that decision the policy was repudiated on the ground that the proposor has given wrong answers to the question in the proposal form. In that case for the question did you ever have any operation accident or injury ?the answer was no. In that case the insured has undergone a surgery for adenoma thyroid prior to the taking of policy but he had subsequently due to another illness. Supreme court held that it is not for the insurer to establish that the suppression was fraudulently made by the policy holder or that he must have been away at the time of making the statement that the same was false or the fact was suppressed which was material to disclose. It was further observed therein that the principle underlying the doctrine of disclosure and the rule of good faith oblige the proposer to answer every question put to him with complete honesty The non disclosure of the previous surgery by the proposer was deliberate or not, the opp.parties can repudiated the claim on the ground of material suppression. In these circumstances we are of the view that the repudiation cannot be interfered with. There is also no deficiency in service on the part of the opp.parties. Point found accordingly. In the result the complaint fails and the same is hereby dismissed with their costs. Dated this the 27th day of April, 2009 I N D E X List of witnesses for the complainant PW.1. – M. Samad List of documents for the complainant P1. – Policy certificate P2. – copy of notice P3. – Repudiation letter P4. – Discharge summary P5. certificate dated 5.8.2005 P6. – Certificate dated 24.9.2005 List of witnesses for the opp.parties DW.1. - R. Rudran Nair List of documents for the opp.parties D1. – Copy of Policy D2. – Policy condition D3. – Proposal Form D4. – Claim petition P5. – Copy of Award D6. – Copy of FIR D7. – Medical Certificate D8. – Discharge summary D9. – Medical certificate attached to the claim form D10. – Medical Bill from SB fort Hospital |