JUDGEMENT

          Complainant by filing this complaint has submitted that complainant purchased one Mediclaim Insurance Policy (Individuals) being No. 311504/48/2013/1966 from the Oriental Insurance Company Ltd. on 24.07.2012 for him and his wife with sum assured of Rs. 4 lakhs each and the said insurance policy was valid from 01.08.2012 to midnight of 31.07.2013.

          On 29.08.2012 complainant was admitted to Bellevue Clinic Nursing Home, Kolkata for his treatment as per advice of Dr. Mrinmoy Nandi on 27.08.2012 as the complainant was suffering from Sebaceous Cyst (Back) and as per advice of Dr. Nandi the complainant treated by getting administrations with Belleview Clinic on 29.08.2012 and he was discharged on 31.08.2012.

          Complainant to get reimbursement of medical expenses under the above mentioned Mediclaim Policy against the Hospitalisation expenses intimated the same op and practically complainant paid a sum of Rs.43,357/- as hospitalization charges lodged the claim with the op no.2 on 07.09.2012 and other reports for reimbursement of the payment.  But op no.2 on 07.09.2012 had sent a request to the complainant on 02.11.2012 for providing details information of the bank account of the complainant for facilitation of claims payment and for other matter and on receiving the same the complainant duly sent his Bank information to op no.2 by letter dated 21.11.2012.

          Complainant waited for about 4 months from the date for getting the relief and thereafter wrote a letter on 05.03.2011 about the status of his claim.  But till date, op did not inform and for deficiency and negligence of service this complaint is filed and prayed for reimbursement of the said claim.

          On the contrary op Insurance Company by filing written statement submitted that no doubt complainant submitted claim along with Medical Bill to Op TPA.  No doubt the op TPA asked the complainant to submit bank details etc, but later on after proper scrutinisation of the paper, TPA observed that the present complainant violated the Clause No. 2.3 & 3.10 of Mediclaim Insurance Policy (Individuals) and it is specifically mentioned in Clause-2.3 & 2.3(A) that Hospitalisation Period-expenses on Hospitalization are admissible only if hospitalization is for a minimum period of 24 hours and submitted the statement of the complainant, complainant was suffering from painless Sebaceous Cyst (Back) which cannot grow suddenly in the human body.  It should take to grow in the human body two to three year and complainant did not disclose at the time of taking the policy which is totally against the caluse-3.10 of Mediclaim Insurance Policy (Individuals) and it is a case of suppression of material fact.

          Moreover in Clause-3.10 of the policy, the pre-existing health condition or disease means any conditions, ailment or injury or related conditions for which the insured persons had sign or symptoms, and/or diagnosed, and/or received medical advice/treatment, which 48 months prior to his/her first policy with the company.  Op further submitted that when the complainant lodged the claim to the TPA, at that time he confessed that this Sebaceous Cyst (Back) was swelling in nature at the back for the last 2 years, painless, slow growing and on examination it was diagnosed as Sebaceous Cyst (Back) followed by Excision of Sebaceous Cyst (Back) under Local Anesthesia and discharged with advise and it is further submitted that removal of Sebaceous Cyst (Back) are generally done on OPD basis.

          Further it is submitted that on the basis of the letter of the complainant dated 10.09.2012 and with the recommendation of TPA this op repudiated the Claim on 07.11.2012.  So the entire allegation is false and fabricated and complainant has suppressed various facts and for which the complainant is not entitled to any claim.

                                                     Decision with reasons

          On proper study of the complaint and also the written version, including the argument of the Ld. Lawyers and also the copy of the Mediclaim Policy claim form, it is found that complainant has personally noted that nature of illness was Sebaceous Cyst (Back) and from the report of the Dr. Mrinmoy Nandi, it is found that Dr. Nandi advised for admission on 29.08.2012 for Excision of Sebaceous Cyst (Back) and at 02:30 P.M. at Operation Theatre and on that date Excision of Sebaceous Cyst (Back) was done.  Except there is no medical paper to show for what reason he was in the hospital from 29.08.2012 to 31.08.2012, there was no doctors advise for further stay at the said hospital.  Further after considering the repudiation letter dated 07.11.2012 it is found that TPA reported that on scrutiny of the claim, it was observed that complainant took admission in Belle View Clinic on 29.08.2012 and was discharged on 31.08.2012 with complaint of swelling at the back for the last two years painless, slow growing and after examination it was diagnosed that complainant was suffering from Sebaceous Cyst (Back) followed by Excision of Sebaceous Cyst (Back) under local Anesthesia and discharged with advise and removal of Sebaceous Cyst (Back) are generally done on OPD basis.  So, the history of that basis is not justified.

          Further considering the argument of Ld. Lawyer for the op it is found that complainant at the time of opening the said Mediclaim Insurance Policy, did not disclose about the existence of any swelling at back for last two years in his Mediclaim Form filed for the purpose of purchasing the said policy and no doubt as per provision of Clause-3.10 before purchasing the policy, complainant had been suffering from painless, slow growing Sebaceous Cyst (Back) which cannot grow suddenly in human body and complainant know his own history that same was in existence at the time of purchasing the said policy and for which it is suppression of material fact.

          Moreover as per provision of Clause-3.10 it shall be treated as pre-existing health condition of disease because ailment or injury or related conditions for which the insured persons had signs or symptoms, and from diagnosis, and/or received medical advice/treatment, which 48 months prior to his/her first policy with the company.  But in the present case complainant admittedly was suffering from swelling at the back for last two years and it was painless and slow growing and no doubt he was operated on 29.08.2012 whereas the present policy was effective from 01.08.2012 to 31.07.2013 that means on the very month of taking the policy, complainant underwent said Excision of Sebaceous Cyst (Back) and no doubt within 28 days from the date of purchasing the said policy, Sebaceous Cyst (Back) was aggravated, that means the complainant suppressed the entire material fact and truth and for which the op after examining all the materials as per Clause-3.10 and under Clause-2.3 & 2.3(A) repudiated the claim.

          Now the question is whether the complainant had his knowledge about that existence of Sebaceous Cyst (Back).  In this regard we have gathered from the entire fact that complainant purchased the said policy at the age of 63 years and as per condition of the policy Clause-3.10 we find that the present Cyst was in existence prior to purchasing  the present policy and considering the Clause-3.10 it is clear that if pre-existing condition or disease was found on the date of purchasing the policy or on and from the date of effect of the date of the policy, the policy holder is not entitled to any claim or any benefit of the Mediclaim Insurance Policy Claim within 48 months prior to his or her first policy with the company and in this case it is proved beyond any manner of doubt that the complainant did not disclose the vital fact of such existence of cyst on the back and it is proved beyond any manner of doubt that complainant also admitted in the complaint and op also found after consultation with Mediclaim Terms and conditions that existence of Sebaceous Cyst on the back of the complainant for two years preceding his operation on 29.08.2012 and in this regard the present question is whether there was any pre-existing disease or whether op has been able to prove the said fact.

          Practically Ld. Lawyer for the complainant did not utter a single word in this regard but only submitted that claim was submitted but his claim has not been disposed by the op.  But fact remains that claim has already been repudiated by the op on 07.11.2012.  So, considering that fact and also the material on record we must have considered whether the repudiation was valid or not and in this regard considering the definition of Sebaceous Cyst (Back) and also considering the treatment-sheet and material documents it is proved beyond any manner of doubt that the present policy was effective from 01.08.2012 to 31.07.2013 whereas the present operation [Sebaceous Cyst (Back) operation Excision] was made at Belle View Clinic on 29.08.2012, just after 28 days from the date of purchasing the policy.

          Then it is clear that it was not a sudden effect.  But it was in existence as admitted by the complainant before the doctor which is evident from the documents produced before the TPA Authority.  So, considering the definition of the pre-existing disease as per Clause-3.10 and also the nature of Sebaceous Cyst (Back) as operated on 29.08.2012 we are confirmed that complainant had been suffering from Sebaceous Cyst (Back) for more than two years prior to purchasing the policy which was effective from 01.08.2012.

          But truth is that complainant did not disclose this matter about his health condition or any symptoms of the policy holder and no doubt with positive purpose he did not disclose because he was ready for operation of the same just after purchasing the valid Mediclaim Insurance Policy and no doubt in this case complainant did it with his full knowledge that he was suffering from Sebaceous Cyst (Back) as there was necessity for operation.  So, he purchased the policy with effect from 01.08.2012 and thereafter he consulted with the Clinic for operation and operation was done on 29.08.2012.  So, it is clear that insured complainant was fully aware of the fact at the time of taking out the policy about Cyst and nature of Cyst and it was within knowledge of the complainant without operation it cannot be removed and in this regard we have relied upon one ruling reported in AIR 1962 S.C. 814 wherefrom we have found that the repudiation for insured claim the insurer must satisfy the following conditions - 1) statement must be on material matter or must suppress fact which was material to disclose, 2) suppression must be fraudulently made by the policy holder and 3) the policy must have to know at the time of making the statement that it was false or he has suppressed facts which are material to disclose and considering that 3 conditions if any repudiation is made in that case the repudiation is legal valid.

          Considering this principal of law and the present act of the complainant that he was well aware of existence of Sebaceous Cyst (Back) on the date of purchasing the policy on 01.08.2012 and it is also proved from the fact that just after purchasing the policy he booked Belle View Clinic etc and operation was done on 29.08.2012 and prior to that several examinations were also made.  So, it is clear that only for the purpose of getting hospitalization benefit and for operating the Sebaceous Cyst (Back) he purchased the policy and it was within his full knowledge of the complainant that he submitted false materials about his health as made in all respect and he did not disclose the symptoms as found in the body that is Sebaceous Cyst (Back), knowing fully well if it would be disclosed in the proposal claim form, his Mediclaim Insurance Policy shall not be issued by the Insurance Authority and he would be placed before the Medical Board of the Insurance Company and considering that fact we are sure and confirmed that material matter was suppressed and that was not disclosed by the complainant and that suppression was made fraudulently only for the purpose of purchasing the policy and for getting Mediclaim benefit against his immediate operation on 29.08.2012 and no doubt Sebaceous Cyst (Back) as per Mediclaim Terms cannot be found like as boil (fora) and within two or three days but Sebaceous Cyst (Back) is a continuous process which is formed for long period and after slow growth its removal is required when it is found that its removal is required when it is found that it is creating much trouble in the body system.

          So, it is clear from the Medical terms that Sebaceous Cyst (Back) was not formed within 10 or 20 days or one month or two months etc.  So, it is clear that the entire fact that is Sebaceous Cyst (Back) in his body was suppressed fraudulently for the purpose of getting benefit and policy holder was aware of the fact.  But even then he falsely stated that there was no defect in his body or he was not suffering from any such disease.  But as per condition of the policy, the material regarding health and body of an insured must be disclosed and considering the certificate and other materials it is found and also from the report of the doctors, it is found that ops have produced sufficient material that insured had prior knowledge about such ailment what he has suppressed and in fact considering that fact, op repudiated the claim being satisfied about the material and non-disclosure of the health condition by the insured at the time of taking the policy and it is also proved by the op that it is suppressed fraudulently made by the policy holder when it was known to the policy holder that his statement was false and very act of the policy holder to get a policy with effect from 01.08.2012 immediately he was admitted to hospital for removal of the said Sebaceous Cyst (Back) within 28 days from the date of purchasing the policy and it indicates that this policy holder was interested for the purpose of getting medical benefit of the operation of that cyst which was in existence in his body for more than two years prior to purchase the said policy.

          So, it is clear that complainant was aware of the said fact and so his body for the status was not disclosed in the policy knowing fully well that if it was disclosed policy could not be accepted.  So, he adopted such path and suppressed the material fact.  So, in the present case it is proved that there was continuous history of suffering from Sebaceous Cyst (Back) and that is the disorder one kind of disease which was within the knowledge of the insured.  So, the entire declaration made by the complainant in the Application Form is false fabricated and with due knowledge he suppressed the said fact for which we are convinced to hold that op repudiated the Insurance Policy claim of the complainant after satisfying itself about the conditions as laid down in AIR 1962 S.C. Page-8.  So, in view of the above fact and also considering the policy clause-3.10 and other we are convinced to hold that Insurance Company by their convenient evidence and materials repudiated the same.  So, we are not in a position to interfere with the repudiation which are made by the ops.

          In the result, the complaint fails.

          Hence, it is

                                                           ORDERED

          That the complaint be and the same is dismissed on contest with cost of Rs.5,000/- against ops.