1.       The New India Assurance Co.Ltd., original opponent has preferred this appeal against the judgment and order dated 28.8.2006 passed by District Forum Aurangabad in C.C.No.119/2008, whereby the appellant Insurance Company is held liable to pay compensation . Present respondent is original complainant.

2.       The background of this case is that, respondent/org.complainant had obtained Health Plus Medical Expenses policy bearing No.16401/48/04/00950 from appellant Insurance Company for the insured sum of Rs.50,000/- which was valid for the period 14.01.2005 to 13.01.2006.  That, on 2.3.2005 she had a sudden low back-ache along with numbness.  Therefore she rushed to Dhoot Hospital  and got investigation done. That, concerned doctor advised her for operation.  Therefore  she immediately approached to Sahyadri Speciality Hospital Pune and consulted Dr.C.A.Apte, Neurologist who also advised operation. Therefore  she was admitted in the said hospital and had undergone operation of “Unilateral Fenestration and Discectomy” on 25.3.2005 and was discharged from hospital on 29.3.2005. That, the total expenses which she had to incur on this operation and other expenses were to the tune of Rs.31,210/-. Hence she filed reimbursement claim of said medical expenses of Rs.31,210/- on 20.4.2005 with the appellant Insurance Company. However Insurance Company vide letter dated 22.9.2005 rejected the claim on the ground that she had pre-existing disease and therefore  the said claim was beyond the scope of policy. It was contended by her that the allegations of pre-existing disease was totally false. In fact before the policy was issued to her she had pre-medical check up by the doctor of Insurance Company and it was only after the said check up she was issued the policy.  She therefore  contended that the repudiation of the policy was deficiency in service on the part of Insurance Company. That, by the said repudiation she had to suffer mental as well as physical agony and also there was a loss of profession.  Therefore  she filed complaint before the District Forum seeking direction to the Insurance Company to reimburse her medical expenses of Rs.31,210/- which she has already incurred along with Rs.50,000/- as compensation  towards mental harassment as well as loss of profession.

3.       Appellant Insurance Company appeared before the Forum and resisted the claim. It had filed written version dated 26.6.2006 whereby the policy in question was admitted, but the claim was denied. It was submitted that respondent/complainant was suffering from the pre-existing disease for which she had claimed reimbursement of medical expenses.  Therefore  her claim was beyond the scope of the policy . Hence it was contended that appellant Insurance Company had rightly rejected the claim and there was no deficiency in service as alleged by the respondent and requested to dismiss the complaint with interest.

4.       District Forum after perusal of the record and hearing the parties has partly allowed the complaint and directed the Insurance Company to pay to respondent Rs.31,210/- with interest @ 6% p.a. from the date of rejection of the claim along with compensation  of Rs.2000/-.

5.       Aggrieved by the said judgment and order, Insurance Company has filed the present appeal which was finally heard on 6.12.2012.  Adv.H.A.Patankar holding for Adv.V.N.Upadhye was present for the appellant whereas Adv.Shri.Sachin Navander was present for respondent.  We heard both the counsels. Adv.Shri.Sachin Navander for the respondent also submitted written notes of argument on earlier date. Accordingly, appeal was reserved for judgment and order.

6.       The appellant has also filed application for condonation of delay. Delay shown is of 17 days. We heard both the counsels on the point of delay. It was submitted by advocate of the appellant that the said delay is the procedural delay.  That, before filing of the appeal it is necessary to get approval of the higher authority.  Accordingly the file was sent by Aurangabad Division Office to Nagpur Regional Office for approval and after having approved the proposal of appeal the files were sent to Mumbai Regional Office for filing appeal at Mumbai as there was then no Bench at Aurangabad. Thus in this process delay of 17 days is occurred in filing of appeal. Delay being of short period and same is procedural delay, we have condoned the same.

7.       As regards the merit of the case, Adv.Shri.H.A.Patankar submitted that the disease of the respondent was pre-existing for which no reimbursement of medical expenses is allowed as per terms and conditions of the policy . He contended that this fact regarding pre-existing disease was evident  from the report of hospital where she had undergone operation. He further contended that all these facts were brought before the Forum. However District Forum passed the order without application of mind and there is absolutely no reasoning and no issues were framed before passing the order. Therefore the order needs to be quashed and set aside.

8.       On the other hand the learned counsel submitted that the appellant Insurance Company has not brought on record any cogent evidence about alleged breach of contract. He also submitted that appellant Insurance Company has not filed any affidavit on record to prove that there was pre-existing disease before issuance of the policy. That, the respondent has also withdrawn the amount deposited by Insurance Company and hence impugned judgment and order passed by District Forum needs no interference.

9.       We have perused the record as well as considered the oral arguments and also written notes of arguments as submitted by advocate of  the respondent.  The major question which arises for our consideration and decision is whether repudiation of insurance claim by the appellant Insurance Company is proper and justified. The only ground on the basis of which the claim was rejected is that there was a pre-existing disease.  In support of it`s contention regarding pre-existing disease the  Insurance Company has filed two documents i) the discharge summary issued by Sahyadri Speciality Hospital as on 24.3.2005, in which concern doctor while giving the history of the patient has  mentioned that she had low back ache and left leg pain since two months. Secondly there is another letter dated 21.9.2005 issued by Jalna Mission Hospital in which there is a mention that Dr.C.A.Apte had examined the respondent on 19.2.2005 for back ache of three months duration. Thus on the basis of the observations made by these two doctors the appellant Insurance Company held that respondent had pre-existing disease. In fact there is no independent evidence regarding actual treatment taken by the respondent for the said disease of low back pain prior to obtaining of insurance policy. History of the patient as recorded by doctors cannot be taken as evidence to prove the pre-existing disease.  Secondly, there is also no affidavit filed by these doctors to substantiate the contention of the Insurance Company that there was pre-existing disease. In this regard we rely on judgment and order dated 4.10.2010 passed by this Commission in F.A.No.1241/06 in case of LIC V/s Bhaskar Anand Pradhan wherein view is taken that only past history is not sufficient to prove pre-existing disease. We further rely on the following two citations wherein it is held by the Hon`ble National Commission to prove the pre-existing disease the affidavit of concerned doctors is must.

i)                   Sukumar Bag –Vs- Oriental Insurance Co.Ltd., 2008(4) CPR 399(NC),

ii)                   The New India Assurance Co.Ltd. –Vs- P.P.Khanna, 1997(2) CPR (NC).

It is also to be noted that before issuance of the policy she was examined by doctor of appellant Insurance Company and after having examined she was issued the policy.  Therefore Insurance Company cannot now  take up a new ground that she had pre-existing disease.

10.     In view of the above said facts and observation although as contended by the learned counsel  for the appellant that the District Forum has not given a reasoned judgment and order, we find that  it has rightly concluded that the appellant Insurance Company was under obligation to make reimbursement of the expenditure incurred by complainant. As such Insurance Company by repudiating the claim has committed deficiency in service. Hence we are not inclined to interfere with the judgment and order passed by District Forum.  In the result we pass the following order.

                                                O   R    D    E    R

1.     Appeal is dismissed.

2.     No order as to cost.

3.     Copies of the judgment be issued to both the parties.

Pronounced on 21.12.2012.