KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM APPEAL NO.915/03 JUDGMENT DATED: 8/8/08 PRESENT:- SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.V.VISWANATHAN : JUDICAL MEMBER P.K.Mathew, Melekottu House, Pathanamthitta : APPEELLANT (By Adv.S.Raghukumar) Vs The Branch Manager, The New India Assurance Co.Ltd., : RESPONDENT Pathanamthitta (By Adv.M.Nizamudeen) JUDGMENT SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The above appeal is directed against the order dated 26/8/03 of CDRF, Pathanamthitta in OP No.78/99. The complaint therein was filed by the appellant against the respondent/opposite party claiming mediclaim insurance amount. The opposite party/Insurance Company repudiated the claim on the ground that the alleged mediclaim is based on pre-existing disease related a fall one year back. The Forum below on appreciation of the evidence adduced from both sides, accepted the case of the opposite party/ Insurance Company and thereby dismissed the complaint in OP.78/99. Hence the present appeal. 2,. We heard the counsel for the appellant/complainant and respondent/opposite party. The learned counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He relied on the decision of State Commission reported in II (2001) CPJ 467 and submitted that the complainant insured was not aware of the illness and so the repudiation of the claim on the ground of pre-existing disease is unsustainable. He much relied on the oral testimony of DW2 Dr.N.J.Mani who treated the complainant at Baby Memorial Hospital, Calicut. He canvassed for the position that there was no nexus between the treatment undergone by the complainant and the fall of the complainant one year back. Thus, the appellant/complainant requested for allowing the compliant in OP No.78/99. On the other hand, the respondent/opposite party supported the findings and conclusions of the Forum below. He also relied Ext.R1 proposal and form submitted by the complainant for taking the medi-claim insurance policy and pointed out the suppression of material facts by the complainant insured. Thus, the opposite party/respondent requested for dismissal of the appeal. 3. Before the Forum below the complainant was examines as PW1 and Exts.P1 to P11 were marked on his side. The opposite party/Insurance Company examined DWs 1 and 2 and marked Exts.R1 to R4 documents. 4. For the sake of convenience, the parties to this appeal will be referred to according to their status before the Forum below in OP.No.78/99. 5. Points that arise for consideration are:- i) Whether the respondent/opposite party Insurance Company is justified in repudiating the insurance claim put forward by the complainant? ii) Is there occurred any deficiency in service on the part of the opposite party/Insurance Company? iii) Is there any sustainable ground to interfere with the impugned order dated 26/8/03 passed by the CDRF, Pathanamthitta in OP.No.78/99? 6. Points 1 to 3:- There is no dispute that the complainant took the Mediclaim Insurance Policy for the period from 26/8/97 to 25/8/98 and that during the pendency of the aforesaid policy the complainant was hospitalized at Baby Memorial Hospital, Calicut and he had treatment for Degenerative Joint Disease and Synovial Chrondomatosis. The complainant was in the hospital for 21 days. That is, from 6/10/97 to 28/10/97 and there after from 13/11/997 to 18/11/97. The complainant had claimed reimbursement of Rs.7,492/- covered by medical bills and other documents. The opposite party repudiated the said claim by Ext. P9 repudiation letter dated 2/2/98. The reason sated for the aforesaid repudiation is that the problems to the ankle and the treatments given are consequent to fall happened about one year back. It is further stated that all pre-existing disease/ injuries prior to the commencement of insurance is an exclusion as per medi-claim policy conditions. Thus, according to the opposite party/Insurance Company the treatment undergone by the complainant at Baby Memorial Hospital is in connection with the fall which happened about one year back. 7. The fact that the complainant had a fall one year back and he had undergone an operation for open reduction and implantation is not in dispute. The complainant as PW1 has admitted the fact that he had such a fall prior to the taking of the policy and consequent to the fall he had undergone a surgical procedure. It is also admitted by PW1 that in February 1997. He had undergone another operation for the removal of the implants. Thus, the complainant had sustained fracture to the right leg is admitted. The point to be considered is as to whether the said fracture had any connection with the present disease of Degenerative Joint Disease and Synovial Chrondomatosis. DW2 Doctor, who treated the complainant at Baby Memorial Hospital for the aforesaid Degenerative Joint Disease has categorically deposed that the Degenerative Joint Disease had nothing to do with the frature sustained by the complainant. A close study of the testimony of DW2 would make it abundantly clear that the treatment undergone by the complainant during the pendency of the Medi-claim Insurance Policy is not at all connected with the fracture which the complainant sustained due to the fall. That be so, the opposite party/Insurance Company cannot be justified in repudiating the medi-claim put forward by the complainant. 8. It is to be noted that as per Ext.P9 repudiation, the opposite party had no other case. But in the written version they took the plea that there was pre-existing disease and that the complainant suppressed material facts regarding his health condition. The opposite party/Insurance Company has also relied on Ext.R2 letter dated 19/1/98 issued by DW2 Dr.N.J.Mani. In Ext.R2 letter it is specified that the complainant was suffering from diabetes mellitus and that the complainant had traumatic trimalleolar fracture right ankle due to a fall. It is stated that the problems of the ankle are consequent to a fall and trauma. It is also stated that the histo-pathological examination showed synovial chondromatosis due to the metaplasia which can occur in chronic infection. In Ext.R2 it is also stated that the complainant had developed infection of the ankle joint. So on going through R2 letter issued by DW2 it can very safely be concluded that the treatment undergone by the complainant at Baby Memorial Hospital during the pendency of the Medi-claim Insurance Policy was related to pre-existing disease. In other wards, the aforesaid disease and treatment was resulted from the fracture sustained by the complainant one year back. It would also show that the complainant was suffering from diabetes mellitus. It is to be noted that DW2 was confronted with R2 letter dated 19/1/98 but he pretended ignorance or lack of memory. The details in R2 letter would give an indication that the R2 letter was issued on the basis of the records which were available in the hospital. It is specifically stated in R2 letter that the histo-pathological examination showed synovial chondromatosis due to the metaplasia which can occur in chronic infection. This would make it clear that R2 letter was issued on the basis of materials available with the hospital authority viz; Baby Memorial Hospital where the complainant had the treatment. 9. A perusal of the answers given by the complainant to the questions under Clause 13 of Ext. R1 proposal form for Medi-claim Insurance Policy would make it clear that the complainant suppressed material facts regarding his disease of diabetes and also regarding the accidental fall and the operation undergone by him. Question 13 (o) is as follows: Any other illness or diseases or accident or operation sustained by you? The answer is “No”. To the Question 13(n) diabetes or any urinary disease? The answer is “No”. It is to be noted that the complainant is an advocate by profession and he gave the answers to such questions by concealing or suppressing the real facts. The complainant as PW1 has admitted that is having Diabetes. It is also admitted by him that he had a fall and resulted in fracture. By fully knowing those facts regarding his health condition, he suppressed those facts which were within his knowledge. So, the complainant who suppressed material facts is not entitled to get any benefit under the said policy which he obtained from the opposite party/Insurance Company by suppressing the material facts. It is to be noted that the R2 letter issued by DW2 cannot be ignored. It is also to be noted that the said letter was issued by DW2 before the institution of the complaint in OP 78/99. So, much evidentiary value is to be given to Ext.R2 letter issued by DW2. It is also to be noted that the R2 letter would give clear indication that the complainant was having a pre-existing disease on account of his fall which occurred one year back and suppressing that fact the complainant obtained the Medi-claim Insurance Policy. That be so, the present claim of the complainant is to be negatived. The opposite party/Insurance Company is justified in repudiating the insurance claim. The Forum below has considered the material aspects of the case. We do not find any ground to interfere with the impugned order passed by the Forum below . Thus, the present appeal is devoid of merits and liable to be dismissed. In the result the appeal is dismissed. The impugned order dated 26/8/03 passed by CDFR, Pathanamthitta in OP 78/99 is confirmed . The parties are directed to suffer their respective costs. M.V.VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER Pk.
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