KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.76/2009 JUDGMENT DATED: 05/12/2009 PRESENT:-SMT.VALSALA SARANGADHARAN : MEMBER SHRI.M.V.VISWANATHAN : JUDICIAL MEMBER The Manager, New India Assurance Company Ltd., P.B.No.43, N.S.Towers, : APPELLANT Near Stadium Bus Stand, Coimbatore Road, Palakkad. (By Adv.Sri.Rajan Kaliyath) Vs M.Sundaran, S/o.Muthu, Puthanpura, Kazhani, Kattepully, : RESPONDENT Kavassery, Alathur, Palakkad. JUDGMENT SHRI.M.V.VISWANATHAN : JUDICIAL MEMBER The above appeal is preferred from the order dated 31/12/08 passed by CDRF, Palakkad in CC No.17/07. The complaint therein was filed alleging deficiency in service on the part of the opposite parties in repudiating the insurance claim. The opposite parties entered appearance and justified their action in repudiating the insurance claim. They contended that the complainant / insured was having pre-existing disease namely, coronary artery disease and suppressing that fact he took the medi-claim insurance policy from the opposite party New India Assurance Company Ltd., Before the Forum below Ext.A1 to A3 and B1 to B5 documents were produced and marked from the side of the parties. On an appreciation of the documentary evidence on record, the Forum below passed the impugned order directing the opposite parties to pay the insurance claim amount of Rs.15,000/- with compensation of Rs.2,000/- and cost of Rs.1,000/-. Aggrieved by the impugned order dated 31/12/08 the present appeal is filed by the opposite parties therein. 2. When this appeal was taken up for final hearing, there was no representation for the respondent/complainant. We heard the learned counsel for the appellants/opposite parties. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on B3 document and submitted that the respondent /complainant (insured) was having coronary artery disease on 10/3/06 and that fact was suppressed by the complainant while taking A1 Universal health Insurance policy. Thus, the appellants requested to set aside the impugned order passed by the Forum below. 3. The points that arise for consideration are:- 1) Whether the appellants/opposite parties can be justified in repudiating the insurance claim put-forward by the respondent/complainant? 2) Whether the appellants/opposite parties have succeeded in establishing their case that the complainant insured was having pre-existing disease prior to the taking of A1 Universal Health Insurance Policy? 3) Is there any sustainable ground to interfere with the impugned order dated 31/12/08 passed by the Forum below in CC No.17/07? 4. Points 1 to 3:- Admittedly the respondent/complainant had taken A1 Universal Health Insurance Policy issued by the appellant/opposite party, the New India Assurance Company Ltd. The said policy was valid for the period from 25/05/06 to 24/05/07. There is no dispute that the complainant was admitted in Amritha Institute of Medical Science and Research Centre, Cochin on 07/07/06 and he was discharged from that hospital on 24/07/06. He had undergone a procedure at that hospital on 15/07/06. It was diagnosed that the respondent/complainant (insured) is having coronary artery disease and was having unstable angina on 07/07/06. The procedure done for the said illness was CABG x 3 Grafts. For the said treatment the complainant submitted B3 claim along with the discharge summery issued from Amritha Institute of Medical Science and Research Centre. The aforesaid claim was repudiated by the appellants/opposite parties on the ground that the disease of coronary artery disease was contracted by the respondent/complainant prior to taking of the policy. Thus, the appellants justified their action in repudiating the insurance claim. 5. It is a settled position that the burden is upon the insurance company to establish their case regarding pre-existing disease or suppression of material facts. Ext.B3 discharge summery produced along with claim would not show that the complainant was having the disease of coronary artery disease prior to the taking of A1 policy. Admittedly the policy was taken on 25/05/06. But the complainant / insured was admitted at Amritha Institute of Medical Science and Research Centre only on 07/07/06. The procedure CABG was done on 15/07/06. There is nothing on record to show that the complainant / insured was aware of existence of the disease coronary artery disease prior to the taking of the policy. There is no other document to substantiate the case of the appellants/opposite parties that the respondent/complainant was having pre-existing disease namely, coronary artery disease prior to 25/05/06. The appellants/opposite parties much relied on the wordings in the discharge summery regarding inferior wall MI on 10/03/06. There is no evidence on record to show that the complainant insured had undergone any treatment or medical consultation on 10/03/06. There is also nothing on record to show that on 10/03/06 the respondent/complainant (insured) contracted the disease by name coronary artery disease or inferior wall MI. In such a situation it is too much on the part of the appellants/opposite parties to contend that the respondent/complainant insured was having pre-existing disease of coronary artery disease on 10/03/06 or prior to taking of the policy. It is true that the respondent/complainant in B1 proposal form answered in negative regarding details of pre-existing disease/illness. There is nothing on record to show that the aforesaid answered given in negative were made by suppressing any material facts. Thus, the Forum below has rightly held that the appellants/opposite parties failed in substantiating their contention regarding pre-existing disease or suppression of material facts. The forum below has rightly directed the opposite parties to pay the insurance claim amount of Rs.15,000/- with cost of Rs.1,000/-. 6. The Forum below has also award compensation of Rs.2,000/- to the complainant / insured. We are of the view that awarding of compensation over and above the insurance claim amount was unwarranted. Hence the order directing the opposite parties to pay a further sum of Rs.2,000/- by way of compensation is set aside. In all other respects the impugned order passed by the Forum below is confirmed. These points are answered accordingly. In the result the appeal is allowed partly. The impugned order dated 31/12/08 passed by CDRF; Palakkad in CC No.17/07 is modified. Thereby the impugned order passed by the Forum below directing payment of compensation of Rs.2,000/- to the complainant is deleted. But the order directing the opposite parties to pay a sum of Rs.15,000/- being insurance claim amount with cost of Rs.1,000/- is confirmed. The further direction to pay future interest @ 9% per annum from the date of the order till realization is also upheld. 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 Kb. | 
