Per Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member.

Heard Mr.Rajhans for appellant and Mr.Mahajan for respondent.

This is an appeal filed by original complainant whose complaint has been dismissed by the District Consumer Forum, Pune, while disposing of consumer complaint No.81/2009 on 09/12/2009. Facts to the extent material may be stated as under :-

The complainant filed the consumer complaint against the respondents. According to complainant, he and his wife taken medi-claim policy from  opposite party on 26/12/2005 bearing policy No.152902/34/07/11/000003161 and sum assured of `1,00,000/-. The complainant further stated that, the said medicalim policy continued for the period from 26/12/2005 onwards. For every year, he renewed the policy and paid the premium regularly. Complainant further stated that, complainant underwent a thorough medical check-up and as per the medical check-up, it was confirmed that the health of the complainant was good and he was healthy and he sufferd from no disease. After scrutinizing all the papers, the opposite party has issued the medi-claim policy to the complainant and his wife.

In the month of July/August,2006, he started losing the balance while walking occasionally and started loss of hearing on the left side. This went on for two years till the month of May 2008. On 31/5/2008 complainant consulted Dr.R.P.Raje and he suggested to carry out radiography of Cervical Spine and CT Scan of brain (Plain and Contrast). The complainant carried out both the tests which revealed that there are degenerative changes in Cerival Spine (Cervical Spondilosis and extra-axial mass lesion in left Cerebello-Pontine Angle cistern with morphology and features described in the report is highly suggestive of neoplastic lesion like Acousite schewannoma and mild obstructive huydrocephalus. Considering the report Dr.Raje referred the complainant to Dr.Bandisti where he was checked by Dr.R.S.Wadia and on 5/6/2008 as at the material time, Dr.Bandisti was out of the town dr.Wadia recommended MRI of brain (Plain and contrast). The said report revealed that, “there is large left CP Angle mass showing Cystic and enhancing solid components with intracanalicular extention and ventricular mass effect.  Thereafter, on 02/07/2008 the complainant was admitted in Deenanath Mangeshkar Hospital, Pune  where Dr.Jaydev Panchwagh operated him and removed CP Angle tumor. After the said operation the complainant was discharged on 11/7/2008. Prior to the operation, the complainant through Deenanath Mangeshkar Hospital submitted proposal on 26/6/2008 for cashless hospitalization to medi-claim. However, by their letter opposite party informed him that the medi-claim will not be available on cashless facility inrespect of the complainants illness. Thereafter, he made  the payment and lodged the claim with the insurance company for Rs.1,00,000/-. However, the agent of Insurance Company by his letter dt.15/09/2008 repudiated the claim and showed it’s inability to admit the liability under the pretext that “Claimant had history of loss of hearing of left ear since 4 years i.e. from 02/07/2003 and the complaint is a complication of left CP Angle tumor, claimant had policy inception since 26/12/2005 hence present disease is pre-existing, therefore denied under clause (4.1) of the terms and condition of the policy. As such complainant filed consumer complaint claiming `1,00,000/-  against the Insurance Company.

          Insurance company was duly served with the notice by the Forum. But the opposite party did not appear before the forum but filed V.P. of Advocate Milind Mahajan on 27/8/2009. Thereafter, three dates were given by the Forum to file written statement and affidavit, but the Insurance Company failed to file affidavit and to contest the matter and thereafter on hearing the arguments of the appellant the complaint was dismissed. As such the complainant filed the present appeal before us.

          We are finding that, the Forum below has decided the complaint erroneously. The Forum did not decide the complaint in the right perspective. The complainant himself in the complaint application more particulary in para (5) has stated that since the month of July/August 2006, he started losing the balance while walking occasionally and started loss of hearing on the left side. So, before filing the complaint in the year 2008 complainant simply mentioned that he was feeling loss of hearing and loss of balance, where as policy was purchase first time on 26/12/2005 on that date the complainant having the loss the balance while walking and loss of hearing. it can be stated that when the policy was purchased covering medi-claim by the complainant in the year 2005 he was suffered any such illness and Insurance Company repudiated the claim on the ground that it was preexisting disease.

          In the policy itself it has been mentioned  at page No.32 that, there is no preexisting disease, so they had issued policy after thorough investigation and after the tests they came to the conclusion that, at the time of purchasing the insurance policy by the complainant he had no any disease. The Forum’s finding held that, complainant was having preexisting disease of  losing the balance while walking and started loss of hearing on the left side  is totally incorrect observation made by the learned District Forum. If after purchasing the policy after one year or six months if he stared losing the balance while walking occasionally and started loss of hearing on the left side, it can not be said to preexisting disease. The Forum below dismissed the complaint despite the fact the opposite party had not filed written statement or any affidavit of the expert doctor. In such circumstances, complaint was erroneously dismissed by the District Consumer Disputes Redressal Forum and by allowing this appeal, we are required to grant compensation to the appellants for the deficiency in service exhibited by the respondent Insurance company. In the circumstances, we allow this appeal. Hence the following order. :-

ORDER

1.                 Appeal is partly allowed.

2.                 Dismissal of the complaint is quashed and set aside.

3.                 We direct the Insurance Company to pay sum of `1,00,000/- as per the policy to the complainant alongwith interest @ 7% p.a. from the date of repudiation of the policy.

4.                 We also direct the Insurance Company to pay sum of `5000/- towards cost of this appeal.

5.                 Copies of the order be furnished to the parties.