Per Sri A. Hazarath Rao, President:-

The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking Rs.2,80,000/- incurred by him towards hospitalization and Rs.50,000/- towards mental agony besides costs.

2.  In brief the averments of the complaint are:

        The complainant on 23-07-09 took family health optima insurance policy from the opposite parties for Rs.1,00,000/- vide bearing No.P/131214/01/2010/000170 and the said policy was valid from 25-07-09 to 24-07-10.   The complainant renewed the policy from 25-07-10 to 24-07-11 increasing the policy amount from Rs.1,00,000/- to Rs.4,00,000/-.   The complainant fell sick due to heart valves problem in M/s Apollo Hospitals, Hyderabad.  The complainant took treatment as inpatient in the said hospital from             13-09-10.   Specialist doctors of Apollo hospital operated the complainant for cure of heart valves problem.   The complainant incurred Rs.2,80,000/- towards treatment at M/s Apollo hospitals.   Before getting treated in the said hospital the complainant intimated the same to the opposite parties who in turn issued claim intimation No.C.L.I./2011/131214/0046012.   After discharge from the hospital the complainant submitted treatment particulars and bills.   The complainant sent need value invoice and sticker documents as sought by the 2^nd opposite party on 29-11-10 as per their requirement.   The 2^nd opposite party on 09-02-11 required the complainant to send medical report of M/s star hospital in June, 2010.  The 2^nd opposite party on 27-02-12 repudiated the complainant’s claim on flimsy grounds.  The complainant never suppressed any material facts regarding his health condition at the time of taking policy. The health condition of the complainant was in perfect condition.  A panel doctors of the opposite parties examined the complainant at the time of taking policy and having satisfied with his condition the 3^rd opposite party issued the policy.   The complainant again renewed his policy with the opposite parties for Rs.4,00,000/- from 25-07-11 to                        24-07-12.   The opposite parties did not respond to the notice issued by the complainant.  Rejecting the claim on flimsy grounds amounted to deficiency of service.  The complaint therefore be allowed.    

3.  The opposite parties 2 and 3 filed memo adopting the version of              1^st opposite party and their contention in brief is hereunder:

        The complainant does not raise any consumer dispute and as such the Consumer Protection Act has no application.  The contract of insurance is uberamafides.  The complainant/insured had under went Aortic valve replacement on 17-03-09 and concealing the same had taken policy with the opposite parties on 25-07-09 without disclosing the same.  In the present case the onset of symptoms is prior to inception of the policy in March, 2009 itself and therefore the claim of the complainant is inadmissible.   The contract of insurance is liable to be declared as null and void. The opposite parties are rightly repudiated the claim and did not commit any deficiency of service.    

4.   Exs.A-1 to A-24 and Exs.B-1 to B-3 were marked on behalf of the complainant and opposite parties respectively.     

5.  Now the points that arose for consideration in this complaint are:

1. Whether the opposite parties committed deficiency of service by repudiating the claim on flimsy grounds?
2. Whether the complainant is entitled to damages?
3. To what relief?

6.  Admitted facts in this case are these:

        1. The complainant took family health optima insurance policy              from the opposite parties for the first time on 25-07-09                            covering the period upto 24-07-10 for Rs.1,00,000/- (Ex.A-1).

        2. The complainant renewed the policy again increasing the sum                   upto Rs.4,00,000/- covering the period from 25-07-10 to                      24-07-11 (Ex.A-2).

        3. The complainant again renewed the policy for the 2^nd time                for the same amount covering the period from 25-07-11                          to 24-07-12 (Ex.A-14).

        4. The complainant took treatment in M/s Apollo Hospitals,                    Hyderabad from 13-09-10 to 23-09-10 (Ex.A-5).

        5. The opposite parties on 22-10-10 required the complainant to                   submit need value invoice and sticker who in turn complied                    the same (Exs.A-6 and A-7).

        6. The complainant issued notices to the opposite parties                            (Exs.A-15 to A-18).

        7. The complainant repudiated the claim on 27-02-12 (Ex.A-13).

7.      POINT No.1:-   The burden is on the opposite parties to prove that the complainant suppressed material facts regarding his health condition.   Mere allegation of concealment of material facts is not acceptable in the absence of any evidence in support thereafter as held by the NCDRC in M/s Aviva Life Insurance Company India Private Limited vs. T. Umavathi 2007 (3) CPR 322 (NC).  In view of the above decision of National Commission the other decisions relied on by the complainant reported in Valsa Jose vs. Bajaj Allianz General Insurance Company Limited and another 2008 (II) CPJ 391;             New India Assurance Company vs. P.U.K. Menon & another (CCR 1995 472) and Sri Akshoy Kumar Paul and another vs. The New India Assurance Company (CCR 1994 page 149) are of no significance.

8.     The complainant contended that he did not suppressed any material facts regarding his health.  Any negative aspect cannot be proved by adducing positive evidence.   Therefore the burden lies on the opposite parties to prove that the complainant suppressed material facts regarding his health knowingly at the time of taking policy and thereby its repudiation is proper.

9.     To prove the same the opposite party relied on the discharge summary (Ex.A-5) filed by the complainant which was issued by                M/s Apollo Hospitals, Hyderabad.  In Ex.A-5 under column ‘history’ it was revealed that the complainant was suffering from heart problem even in June, 2010.   In Ex.A-5 (=Ex.B2) it was mentioned under the head ‘comments’ it was mentioned Mr Srinivasa Rao Maddi a 35 years old gentleman was admitted with diagnosis of Rheumatic Heart disease, severe aortic stenosis.   The patient was evaluated and underwent aortic valve replacement on 17-03-09.  The discharge summary issued by M/s Apollo Hospitals, Hyderabad filed by the complainant Ex.A-5 itself revealed that he was suffering from Rheumatic Heart Disease and underwent aortic valve replacement on                   17-03-09 itself i.e., prior to taking the 1^st policy itself on 25-07-09.

10.   In Satwant Kaur Sandhu vs. New India Assurance Company Limited (2010 ACJ 265) the Supreme Court held:

    “There is no dispute that Section 45 of the Insurance Act, 1938 (for short & the Act’;), which places restrictions on the right of the insurer to call in question a life insurance policy on the ground of mis-statement after a particular period, has no application on facts at hand, inasmuch as the said provision applies only in a case of life insurance policy. The present case relates to a mediclaim policy, which is entirely different from a life insurance policy. A mediclaim policy is a non-life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrima fides, meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment”.

11.   Ex.A-5 document belied the contention of the complainant that he did not suppress anything regarding his health and was in perfect health condition.   The opposite party also filed terms and conditions of Family Health Optima Insurance Plan wherein the pre existing disease was defined as ‘any ailment or injury or related condition(s) for which the insured person had signs or symptoms and/or was diagnosed and/or received medical advice/treatment within 48 months prior to insured person’s first policy with the company’ (Ex.B-1).

12.   The opposite party proved the suppression of material fact regarding ill-health of the complainant even prior to taking the policy by complainant’s documents itself.   Under those circumstances, we are of the opinion that the repudiation of the claim by the opposite party is justified and thereby did not commit any deficiency of service.   We therefore answer this point against the complainant.  

13.  POINT No.2:-   In view of findings on point No.1 the complainant is not entitled to any compensation much less the one claimed.   We therefore answer this point also against the complainant.

14. POINT No.3:-    In view of above findings, in the result the complaint is dismissed without costs.

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 30^th day of November, 2012.

          MEMBER                                                               PRESIDENT

APPENDIX OF EVIDENCE

                                                         DOCUMENTS MARKED

For Complainant :

For Opposite Parties: 

                                                                                                                                                  PRESIDENT