SRI.K. VIJAYAKUMARAN, PRESIDENT. Complaint for realization of insurance amount compensation and costs. The averments in the complaint can be briefly summarized as follows: The complainant is a member of United India Insurance Company controlled and managed by the opp.parties from 7.4.2006 onwards. The complainant is a member of the Family Health Plan Scheme and he has remitted the subscription till 6.4.2008. The complainant has undergone treatment in Sankar’s Hospital, Kollam approved by the company and incurred an expenditure of Rs.9529/- The complainant preferred a claim, but the same was repudiated. Hence the complaint. The opp.parties filed version contending interalia, that the complaint is not maintainable either in law or on facts. The right of the Consumer Vigilance Cell to represent the complainant in this case is disputed. The complainant has approached this Forum with unclean hands by suppressing the material facts. This opp.party had issued a hospitalization and domiciliary hospitalization benefit individual medi claim policy to the complainant the insured sum is Rs.15,000/- for a period commencing from 7.4.2007 to 6.4.2008 subject to various terms and conditions of the policy. The above policy was a continuing renewal of the previous policy which was expired on 6.4.07 M/s. M.D. India Health Care Services Pvt. Ltd. was designated as the 3rd party administrator in settlement of the claim. The complainant was a patient who was suffering from Hypertension since 15 years and the same was suppressed by the complainant in the proposal form submitted by him. As per the clinical summery issued from the treated hospital the complainant was suffering from the past illness of known hypertension for 15 years and diabetic mellitus of 3 months duration since his admission at the hospital. Therefore the disease for which the complainant has undergone treatment is a complication of hypertension which the patient is suffering from the last 15 years. Since the complication resulted from the pre-existing disease of hypertension, is not covered under condition No.4 [1] of the exclusion clause of the policy, the complainant is not entitled to coverage and therefore the claim was repudiated. There is no deficiency in the service on the part of the opp.party. Points that would arise for consideration are: 1. Whether there is deficiency in service on the part of the opp.party 2. Reliefs and costs. For the complainant PW.1 is examined. Ext.P1 to P3 are marked. For the opp.party Ext. D1 to D4 are marked. POINTS: As a matter of fact the policy is not disputed. The fact that the complainant had under gone treatment at Sankar’s Hospital, Kollam and preferred a claim which was repudiated by the opp.party is also not in dispute. The contention of the complainant is that the repudiation is illegal. It is argued that even if pre existing diseases are suppressed by the insured the opp.parties have no right to repudiate the claim [para 7 arguments notes] relying on the decision of the Apex Court reported in II [2008] CPJ 43. The contention of the opp.party is that the contract of insurance is based on utmost good faith and the insured if suppressed and material fact or existing disease in the proposal form which if discovered within a period of 2 years of the inception of policy the same may lead to the policy being vitiated in law and in support or that contention the learned counsel for the opp.party has relied on the decision of Apex Court reported in 2008[1] KLT 698. Ext. D1is the proposal form for mediclaim policy submitted by the complainant which shows that he has declared that he has no existing diseases. It is argued by the opp.party that Ext. D2 policy was issued solely on the basis of the statements given in Ext.D1 proposal form. Ext. D3 is the clinical summary issued by the doctor who treated the complainant. In Ext. D3 it is stated against the column past illness “known hypertension 15 years “ which means that the complainant has suppressed his pre-existing disease in the proposal Form. There is force in the contention that had the complainant disclosed his existing disease the opp.party would get an opportunity of avoiding the contract. The learned counsel for the opp.party would canvass the point that the proposal can be repudiated if a fraudulent act is discovered and that in such a case it was not necessary for the insurer to establish that the suppression was fraudulently made or not relying on the decision reported in 2008 [1] KLT 698. It is worth pointing out in this context that the complainant has not produced the discharge summary for reasons best known to him. When the opp.party repudiated the claim on the ground of suppression of pre existing disease hased in Ext.D3, the burdent on the complainant to establish that he has not suppressed any material fact by examining the doctor which he failed to discharge. As pointed out earlier as per the decision in 2008 [1] KLT 698 it is not necessary for the insurer to establish that the suppression of material fact was fraudulently or not. The complainant is relying on the decision reported in II 2008[CPJ 43 [SC] to establish that an insured is entitled to get claim evening if there is pre-existing illness at the time of taking policy. That decision is not applicable herein as the same mainly deals with renewal of policy. The Apex Court in the decision 2008 [1] KLT 698 further held that Sec. 45 of the Insurance Act postulate repudiation of such policies within a period of 2 years if a fraudulent act is discovered. The complainant herein failed to establish that the statement in Ext. D3 is not correct and that there is no material suppression in Ext. D1. In these circumstances we hold that the repudiation is proper. There is no deficiency in service on the side of the opp.party. Point found accordingly. In the result the complaint fails and the same is hereby dismissed. No costs. Dated this the 31st day of March, 2010. . I N D E X List of witnesses for the com plainant: PW.1. – Somarajan List of documents for the complainant P1. – Notice dt. 12.8.08 P2. – Repudiation letter P3. – Details of Medicines and pharmacy charges List of witnesses for the opp.party: NIL List of documents for the opp.party D1.- Proposal form D2. – Policy with condition D3. – Clinical summary D4. – Claim repudiation letter | 
