ORDER

PARAMJIT SINGH (PRESIDENT.)

Brief facts of the case are that complainant was covered under the Group Health Policy in the name of Indusind Bank Ltd. opposite party No.1 for a period of one year from 7/11/2008 to 6/11/2009 undr HWT 0000217000000 with Chola Mandalam M.S. General Insurance Company opposite party NO2 ivide certificate NO. IND-GHP-00001618 No.0086658092075 for the basic health cover benefits for a sum of Rs.100000/- vie certificate of insurance dated 20/11/2008 issued in this respect.

That unfortunately complainant suffered illness for which she was firstly examined by her family doctor S.Mahindra on 9/3/2009 and for the first time he recommended PNAC Thyroid test performed upon the complainant which was got done from Sardana Laboratory , Phagwara and on the receipt of report consultations were done wit Dr.Rahul Chopra at Patel hospital, Jalandhar who got performed Ultrasonography upon the complainant for thyroid. Both aforesaid reports were later on consulted with Dr.S.Mahindra family doctor of the complainant. Thereafter complainant was referred to DMC hospital, Ludhiana were she was operated upon by Dr.G.S. Brar under admission in the said hospital from 10/4/09 to 16/4/09 vide registration NO. 26529 of the consultant doctor.

That after discharge from the said hospital, complainant filed claim with opposite party NO.2 ie CholaMandalam M.S. General Insurance Company for the claim of Rs.16332/- which includes Rs.950/- as pre hospitalization expenses and the remaining wa hospitalization charge including amount spent on medicines . The bills were duoy attached wit the claim form and submitted to opposite party No.2 on 28/4/2009 but the complainant was surprised to receive letter dated 19/5/09 from opposite party No.2 vide which complainant was informed that her claim is inadmissible as the ailment is considered to be pre existing as per alleged general exclusion NO.c1. The repudiation of claim of the complainant by the opposite party is totally wrong, illegal, and not binding on the complainant. There is absolutely no past history of the complainant for the said disease nor she was ever tsted for the same at any stage in her life. Hence this complaint.

2. Notice of the complaint was sent to the opposite parti4s opposite party no.1 was served but was not present so he was proceeded exparte. opposite party no.2 appeared through counsel and filed written statement.

3. In support of her version complainant has produced in evidence affidavit and documents Ex.C1 to C29.

4. On the other hand opposite p arty NO.2 produced in evidence affidavit Ex.RA and documents Ex.R1 to R4.

5. After that with the help of counsel for both the parties, record has been perused and submissions have been considered. It is not disputed that complainant had got mediclaim policy for te period from 7/11/2008 to 6/11/2009. It is also not disputed that on 9/3/2009 she was fist time examined by Dr.S. Mahindra and thyroid test was performed at Sardana Laboratory, Phagwara and thereafter complainant consulted Dr.Rahul Chopra at Patel hospital, Jalandhar and finally she was operated upon by Dr.G.S. Brar at DMC hospital, Ludhiana under admission in the said hospital from 10/4/09 to 16/4/09. The amounts of medical bills is also not disputed.

Now the main consideration is that whether complainant was having pre existing disease or complainant has the knowledge of the same. Counsel for the complainant argued that she was not having any problem and has not taken any treatment of thyroid and she has not suppressed anything from opposite party No.2 at the time of filling te proposal form, she was not having past history of this disease. He further states that it is fundamental principle of insurance law that utmost good faith must be observed by parties and good faith forbids either party from non disclosure of the facts whih the party knew.

On te other hand counsel for the opposite party has argued that complainant was an old patient of thyroid for so many years and she was suffering from thyroid disease but she deliberately did not disclose it in declaration form filled in by her at the time of taking mediclaim policy. Counsel for the complainant has placed before us decision of Punjab State Consumer Disputes Redressal Commission, Chandigarh in a case reported as Ashwani Gupta vs United India Insurance Company Ltd. 2009 (1) CPC 561 wherein it was held that :

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"apparently burdened proof-case of repudiation-

lies upon insurer-if assured was suffering from

pre existing disease wry insurer had not checked it at the

time when proposal form was accepted by it-OP has failed to

fulfill this requirement before repudiating the claim . So

appellant held entitled to claim."

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Counsel for complainant has drawn or attention to another decision of Punab State Consumer Disputes Redressal Commission, Chandigarh in a case reported as II )2009) CPJ 499 whrein it was held that "

" Onus to prove suppression lies on insurer. Proposal

form not produced on record. Information given by insured

originally or in subsequent form not known-

Presumption goes against insurer. No evidence produced

to prove tat complainant had knowledge of disease or she was

taking medical treatment of te disease-Suppression of

material facts not proved-Insurer held liable."

Counsel for complainant argued tat it is proved on te record that before taking this mediclaim policy on 7/11/2008, complainant has taken treatment of thyroid in any hospital or ad consulted any medical man for treatment of this disease and there is no evidence that insured had any knowledge of any pre existing disease, so claim of the complainant should be accepted with special costs.

The same views were expressed by Hon’ble National Commission in its decision 2009 (II) CPJ 317. So we are of the view that complainant has successfully proved her case and there is nothing on the record to prove that complainant was suffering from any thyroid disease prior to 9/3/2009 when she first time consulted Dr.S.Mahindra and she was never treated for this disease by any medical person. so we direct opposite party No.2 to pay Rs.66332/- alongwith interest @ 8% from the date of repudiation of claim of the complainant i.e. 19/5/09 till date of realisation alongwith Rs.4000/- as cost of litigation within one month from the receipt of copy of this order.

Let certified copies of order be supplied to the parties without delay and file be consigned to record room.

Announced : Shashi Narang Gulshan Prashar Paramjit Singh

14.1.2010 Member Member President