KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION\

                      VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL NO.519/10

JUDGMENT DATED 5.4.11

PRESENT

SMT.VALSALA SARANGADHARAN     --  MEMBER

SHRI.M.V.VISWANATHAN                     --  JUDICIAL MEMBER

United India Insurance Co.Ltd.

Mannarkad Branch, reptd. by the             --  APPELLANT

Sr.Divisional Manager, United India

Insurance Co.Ld. Divisional Office-1,

LMS Compound, Thiruvananthapuram.

   (By Adv.R.Jagadish kumar)

                   Vs.

Hamsa, S/0 Kunjumoideen,

Ottupura Veedu, Thenkara,                      --  RESPONDENT

Mannarkad, Palakkad District.                                    

  (By Adv.G,.V.Sudheev kumar)

                                                          JUDGMENT

SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER

          Appellant is the opposite party and respondent is the complainant in CC.131/09 on the file of CDRF, Palakkad.  The complaint therein was filed alleging deficiency in service on the part of the opposite party United India Insurance Company Ltd;  in repudiating   the insurance claim for Rs.17373/- under the Universal Health Insurance Policy.  The opposite party entered appearance and filed written version denying the alleged deficiency in service.  The Insurance Company justified their action in repudiating the insurance claim.  It was contended that the disease for which the insurance claim is preferred was a pre-existing disease and that the same is not covered by the insurance policy.  Thus, the opposite party/Insurance Company prayed for dismissal of the complaint.

          2. Before the Forum below, the complainant filed proof affidavit.  Exts.A1 to A6 were marked on his side.  Though the opposite party filed proof affidavit and the 2 documents, he was not ready for submitting himself for cross-examination.  The complainant filed an interlocutory application seeking permission to cross examine the opposite party.  The Forum below allowed the said petition for  cross examination of the opposite party.  But, the opposite party failed to appear before the Forum below for   cross-examination.  Hence, the documents and the affidavit filed by the opposite party were not accepted by the Forum below.  On an appreciation of the evidence on record, the Forum below passed the impugned order dated 17.7.10 allowing the complaint and directing the opposite party/Insurance  company  to pay the insurance claim for Rs.17,373/- with interest at the rate of 12%  per annum from the date of repudiation till the date of the impugned order and cost of Rs.2,000/-.  The opposite party is directed to pay the decreed amount within one month from the date of receipt  of the impugned order, failing which the opposite party is directed to pay interest on the whole amount at the rate of 9% per annum from the date of the order till realization.  Hence the present appeal.

3. We heard both sides.

4. The learned counsel for the appellant/opposite party submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He much relied on the proposal form and copy of the Universal   Health Insurance Policy produced by the opposite party/Insurance Company before the Forum below and argued for the position that the pre-existing disease was not covered by the insurance policy and that the claim preferred by the respondent/complainant was related to the treatment for pre-existing disease.  Thereby the appellant/opposite party justified their action in repudiating the insurance claim.  It is further submitted that A3 discharge summary issued from AL Shifa hospital would show the pre-existing disease condition of the complainant at the time of taking the universal insurance policy.  Thus, the appellant prayed for setting aside the impugned order passed by the Forum below.  On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below.  He pointed out the failure on the part of the opposite party in submitting himself for cross examination.    He also relied on A1 & A2 insurance policies  issued by the opposite party/Insurance Company and submitted that there was no condition excluding pre-existing disease.  Thus, the respondent prayed for dismissal of the present appeal.

5. There is no dispute that the respondent/complainant had taken Universal Health Insurance Policy for the period from 28.2.08 to 27.2.09.  Ext.A1 is the aforesaid Universal Health Insurance Policy issued by the appellant/opposite party, United India Insurance Company Ltd.  As per the said policy, the complainant Hamsa and his wife and daughter were covered by the said policy.  The aforesaid Universal Health Insurance Policy was renewed by the respondent/complainant for the period from 28.2.09 to 27.2.10.  Ext.A2 is the renewed policy issued by the appellant/opposite party Insurance Company covering the complainant Hamsa and his wife and daughter.  Ext.A1 and A2  Universal Health Insurance Policies would give an indication that pre-existing disease was not excluded by the said policies.  A perusal of A1 and A2 Universal Health Insurance Policies would show that the column specified/prescribed for pre-existing disease was kept blank.  Nothing is written in A1 & A2 Universal Health Insurance Policies  issued by the appellant/ opposite party,  United India Insurance Company Ltd.  The aforesaid action on the part of the Insurance Company would give a clear indication that   pre-existing disease clause was no included or incorporated in the terms and conditions of the said policy.  Had there been a condition excluding pre-existing  disease, there should be an entry  against the column pre-existing disease.  It is to be noted that A2 is the   Universal Health Insurance Policy covering the period from 28.2.09  to 27.2.10.   As per  the said policy pre-existing disease was not a clause  for the said policy.  If that be so, the appellant/opposite party, Insurance Company cannot be permitted to contend that   pre-existing disease was excluded by A2 Universal Health Insurance Policy.    It can be concluded that pre-existing disease was not a condition or clause  included in A2 policy.  In such a situation, the Forum below can be justified in negativing  the case of exclusion clause  pleaded by the opposite party/Insurance Company.

6. Appellant/opposite party has also produced before the Forum below   copy of the Universal Health Insurance Policy issued in the name of the complainant.  The aforesaid policy copy is nothing but A2 policy produced from the side of the complainant.  In the policy copy  produced  by the opposite party also noting  is entered against the column pre-existing disease.  Thus,   it would give an indication that there was no condition incorporated in the said policy regarding pre-existing disease.  The opposite party/Insurance Company has also produced photocopy of the application form for issuance of Universal Health Insurance Policy.  The aforesaid application for the insurance policy has been treated as the proposal  for the policy submitted by the complainant, Hamsa.  But, the  complainant Hamsa had no opportunity to say  about the aforesaid application form.  He has not admitted   the aforesaid application form.   The photocopy of the   application form   produced from the side of the opposite party would show that the complainant Hamsa  has affixed his signature in the said application form.  In the said application form there is also a column  for   existing disease  (<UDEUDWm !HW+^ ) Against the said column the complainant has given a negative answer by stating  “nil”.  But it is to be noted that there is no mention about pre-existing disease.   Even the aforesaid application form would only show that there was no insurance coverage for the disease which was existing on the date of submission of the application for the insurance policy.  There is no stipulation regarding pre-existing disease.  So, the case of the opposite party/Insurance Company that the complainant was having heart disease on the date of submission of the proposal for the policy cannot be accepted.  The mere fact that the complainant had some heart disease during the year 2007 cannot be taken as a ground to hold that the proposor/insured was having the disease at the time of submitting the proposal for the policy.    So, the case of the opposite party/Insurance Company that the complainant suppressed material facts regarding existing disease cannot be upheld.

          7. Appellant/opposite party much relied on A3 discharge summary issued from AL Shifa Hospital Private Ltd.  A3 discharge summary was issued from the said hospital in the name of the complainant Hamsa on his discharge from that hospital on 16.7.09.  A3 discharge summary would only show that the complainant was admitted in that hospital on 10.7.09 and he was discharged on 16.7.09.  A3 document would only show that the complainant had a past history of M.I. 2 years back.  There is nothing in A3 discharge summary to show that the complainant was having any heart disease on the date of submission of the proposal/application form for the Universal Insurance Policy.    It is further to be noted that there is no question in the proposal form regarding pre-existing disease.  The opposite party/Insurance Company had only asked as to whether the complainant/insured is having any existing disease on the date of submission of the application form for the Universal Health Insurance Policy.  Thus, the appellant/opposite party Insurance Company has not succeeded in establishing their case that pre-existing disease was excluded by the terms and conditions of the policy.  More over, the appellant/opposite party Insurance Company has not produced the terms and conditions of the policy.  The application form produced from the side of the opposite party/Insurance Company would  only show that the existing disease is not covered by the said Universal Health Insurance Policy.  Thus, in all respects the case of the appellant/opposite party Insurance Company that pre-existing diseases are not covered by the policy cannot be upheld.   

8. The appellant/opposite party Insurance Company has not proved their case regarding pre-existing disease.  The Doctor who treated the complainant at AL Shifa Hospital has not been  examined to prove the case of the Insurance Company that the complainant/insured  was having pre-existing disease.  In fact, the entries in A3 discharge summary have not been proved by the appellant/opposite party Insurance Company to substantiate his case regarding pre-existing disease or existing disease.   It is pertinent to note at this juncture, that the complainant filed a petition before the forum below seeking permission to cross examine the  opposite party who filed proof affidavit before the forum below.  The Forum below has rightly allowed the said petition and directed the opposite party to subject himself for cross examination.  But the opposite party failed to appear before the Forum below for cross examination.  No reasonable explanation is forthcoming for the failure of the opposite party to comply with the order passed by the forum below.  The present case  of the appellant/opposite party that submitting answers to the queries is sufficient cannot be accepted  for a moment.  Once the Forum below has allowed the petition preferred by the complainant seeking permission for cross-examining the opposite party, it was incumbent upon the opposite party to comply with the said order passed by the forum below.  Thus, in effect the opposite party failed  to prove the  documents produced before the Forum below.  The Forum below can be justified in not marking those documents produced from the side of the opposite party.  Thus, the Forum below is perfectly justified in directing the opposite party/Insurance company to honour the insurance claim for Rs.17,373/-.

          9. Ext.A5 series of bills and receipts produced from the side of the complainant would justify the claim for Rs.17,373/-.  The repudiation of the aforesaid claim would amount to deficiency in service.    The Forum below has rightly ordered interest at the rate of 12% per annum on the said amount of Rs.17,373/- from the date of repudiation of the insurance claim till the date of the impugned order.  The Forum below  is also justified  in awarding Rs.2,000/- by way of cost of the proceedings to the complainant.  The opposite party/Insurance company has been given one month’s time from the date of receipt of the order to pay the decreed amount.   It is only in default to pay the  decreed amount the opposite party/Insurance Company is burdened with the liability to pay future interest at the rate of   9% per annum on the whole amount which has been decreed by the forum below.  Thus, in all respects, the  impugned order passed by the forum below does not warrant any interference by this State Commission.  So, the impugned order passed by the Forum below is to be confirmed.

          In the result, the appeal is dismissed.  The impugned order dated 17.7.10 passed by CDRF, Palakkad in CC No.131/09 is confirmed.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

 M.V.VISWANATHAN  --  JUDICIAL MEMBER

 VALSALA SARANGADHARAN --  MEMBER