KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHPAURAM FIRST APPEAL.46/2009 JUDGMENT DATED: 9.7.2010 PRESENT SMT. VALSALA SARANGADHARAN : MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER New India Assurance Company Limited, : APPELLANT MGT Building, Kalpetta North, Wayanad District, Represented by the Divisional Manager, New India Assurance Company, Divisional Office, Thiruvananthapuram. (By Adv.Sreevaraham G.Satheesh) Vs. Jikku Seban George, : RESPONDENT S/o George Joseph, Manimalatharappil, Sulthan Batheri. (By Adv.A.Abdulla Sait) JUDGMENT SMT. VALSALA SARANGADHARAN : MEMBER This appeal is preferred against the order dated 31.10.08 of CDRF, Wayanad in CC.49/08. The complaint was preferred by the respondent herein as complainant against the appellant as opposite party whereby the Forum directed the opposite party to pay Rs.1,00,000/- with 12% interest from 13.6.06 till payment along with cost of Rs.1000/- to the complainant. 2. The case of the complainant was that he wa as mediclaim policy holder which covers the family members for the period from 13.2.06 to 12.2.07 on paying a premium of Rs.6643/- with the assured sum of Rs.1,00,000/-. The complainant was a student of 12th standard during the period of policy. He was a member in the school football team and sustained an injury on the knee while playing football and underwent treatment at Sree Ramachandra Medical Centre on 10.4.06. After medical examination it was understood that the complainant had a disease named osteod osteoma and had to spent Rs.1,25,000/- for tests and treatment. The claim of the complainant was rejected on the ground that the disease was pre existing. The complainant and his parents had no knowledge about any disease at the time of taking the policy. Hence the complainant filed complaint claiming the policy amount of Rs.1,00,000/- with 12% interest from 13.6.06 along with costs from the opposite party. 3. In the version filed, the opposite party admitted the existence of the alleged policy. It is contended that as per the policy condition the complication arising from pre existing diseases are excluded from the purview of the policy and hence the claim was repudiated. As per hospital records the complainant was admitted on 10.4.06 for the removal of osteoma tumour on the middle of the right femur bone . The complainant had pain in the region of right knee over a month which itself would show that within 30 days of inception of the policy, the complainant was affected of illness. Moreover the tumour osteod osteoma will not develop within a short period of one or two months. As per the terms and conditions of the policy if the insured contracted any disease with in 30 days from the date of inception, the insurer is not liable to pay any compensation and the policy was repudiated on that ground. Hence there was no deficiency in service on their part and prayed for dismissal of the complaint. 4. The evidence adduced consisted of oral testimony of PW1, OPW1; Exts.A1 to A11 and Exts.B1 to B9. 5. We heard the learned counsel for the appellant and respondent. The learned counsel for the appellant submitted that clause 4.2 of the policy clearly excludes any disease contracted within 30 days of the commencement of the policy. Moreover in the medical certificate and in the discharge summary it is clearly stated that the patient was having complaint of pain on the right thigh for the past one month from 10.4.06 and the policy begins from 13.2.06. From the documents stated above, it is clear that the disease was in existence even before 13.3.06. He argued for the position that the exclusion clause does not require any knowledge about the ailment. The mere existence of the disease alone is required for applying the clause and the patient is having trauma to right knee eight months back. This is also indicative of the fact that the disease was existing even prior to the inception of the policy. Hence as per clause 4.1 of the policy the claim is not payable. Alleging that there is no deficiency in service on their part in repudiating the claim made by the complainant, opposite party prayed for allowing the appeal. 6. On the other hand the learned counsel for the respondent/ complainant supported the findings and conclusions arrived at by the Forum below and submitted that the complainant had pain on the right thigh during March 2006 and had thought that the pain was due to the knee injury he had sustained while playing football at school which was situated in Tamilnadu. Since the complainant was writing the final year examination he could not inform his parents in Kerala. After examination his parents took the complainant to Sree Ramachandra Medical Centre at Chennai and after tests including MRI scan the diseased was diagnosed as osteod osteoma. He had undergone a surgery and the expenses incurred for this was about Rs.1,25,000/-. The claim supported by the bill along with claim form was sent to the agency appointed by the opposite party, but the claim was repudiated. According to the complainant he was not aware of the disease till 10.4.06 hence the repudiation of the claim amounts to deficiency in service and prayed for dismissal of the appeal. 7. On hearing both sides and also on perusing the records we find that the complainant was covered under the mediclaim policy for the period from 13.2.06 to 12.2.07. It is also the admitted case that the complainant had undergone treatment at Sree Ramachandra Medical Centre on 10.4.06. It is seen that the claim was rejected on the ground that, complainant had pre existing disease at the time of taking the policy. The appellant has relied on Ext.B4 in support of this contention. On a perusal of Ext.B4 we find that in column - admission complaints and brief history of present illness, it is written as “complaints of pain in right thigh for past one month. Pain started insidiously, pain is intermittent, relieved by aspirin. No history of trauma to thigh, fever or constitutional symptoms History of trauma to right knee 8 months back which was not associated with swelling. No history of knee giving way or locking. Occasional clicking positive. Not associated with pain”. Though the appellant/opposite party would argue that if the complainant had pain in right thigh for the past one month, the ailment will not be covered as the ailment dates back to 10.3.06 and the policy had taken on 13.2.06, we are not inclined to accept the said contention of the appellant. It is to be found that the doctors in the hospital usually do not record the exact dates with regard to the ailment the patient is having. It will only be the approximate period that will be noted in the admission records. It is to be found that if the complainant had the disease called osteod osteoma and he was having full knowledge about it and had suppressed the above fact from the appellant/opposite party, the same could have been treated as suppression of material fact. In the instant case the insured had no knowledge about such a disease . Pain on the right thigh can be due to various reasons especially in the light of the fact that the complainant who was a football player had sustained a knee injury while playing football in the school. It is also not stated that he had the thigh injury within the period from 10.3.2006 to 10.4.06. He had only stated that the pain was for approximately one month. In the instant case the appellant/opposite party was not sure as to from which date the complainant was suffering from this disease. In this case there is a position where two views are possible and relying on the contra proferentum principle, we feel that a view that is in favourable to the complainant is to be taken. In the present case the appellant could not procure a conclusive evidence of concealment of the disease osteod osteoma. It is only a suspicion that the pain on the right thigh of the insured may be due to osteod osteoma and also that the disease was existing at the time of taking the policy. Thus the appellant has not succeeded in proving that the complainant had pre existing ailment at the time of taking the policy. On going through the facts and circumstances of the case it is clear that the complainant had no knowledge regarding the disease at the time of taking the policy which was detected on 10.4.06. 8. Considering all the aspects of the case we are of the view that the repudiation of the claim merely on the ground of suspicion and in the absence the conclusive proof with respect to the concealment of the preexisting ailment at the time of taking the policy was unjustifiable. Forum below had taken all the aspects into consideration in a just and proper manner. We do not find any cogent grounds to interfere with the order passed by the Forum below. The present appeal is devoid of merits and is liable to be dismissed. In the result the appeal is dismissed. The impugned order passed by the CDRF, Wayanad in CC.49/08 is confirmed. As far as the present appeal is concerned there shall be no order as to costs. SMT. VALSALA SARANGADHARAN : MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER ps | 
