DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 10^th day of December 2008.

Present : Smt. H. Seena, President

Smt. Preetha.G. Nair, Member

Smt Banumathi.A.K, Member

C.C.No.146/2006

Kuttysankaran

Dhanya

Kumaramputhur

Mannarkkad

Palakkad . - Complainant

(Advocate C. Madhavankutty)

V/s

United India Insurance Company Ltd

Branch Office

Hospital Junction

Mannarkkad

Palakkad – 678 529. - Opposite party

(Advocate C. Mohanram)

O R D E R

Order by Smt. H. Seena, President

The case of the complainant in brief is as follows:-

The Complainant has taken a medi claim policy under the Opposite party. As per the policy conditions, the complainants health was certified by Medical Officer and Opposite party issued the policy. Thereafter the complainant was admitted in Moulana Hospital, Perinthalmanna as inpatient from 08/07/2005 to 09/07/2005 for angiogram. The doctors on diagnosis found that the complainant has CAD-TVD with LV function class Angina. The doctor noted the date of commencement of the above illness is about 2 months back. Complainant was again admitted in Moulana Hospital, Perinthalmanna as inpatient from 06/09/2005 to 14/09/2005 and Coronary Artery Bypass operation was done and later continued outpatient treatment. Thereafter claim petition along with the required documents was submitted before the opposite party. But the Opposite party has rejected the complainant's claim on the ground of pre-existing disease. According to the complainant, the act of the Opposite party repudiating the claim is without any basis. The investigation by the Opposite party that the complainant is suffering from hypertension for

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the past 10 years is baseless and made only to reject the claim. Further the present heart

problem has no connection with hypertension. Complainant had incurred Rs.1,00,000/- towards medical expenses which should have been met by the Opposite party as per the c overage of policy. According to the complainant, the act of the Opposite party amounts to clear deficiency of service on their part.

Notice was served on the Opposite party. Version was filed. The contention of the Opposite party is as follows:-

The Opposite party has repudiated the claim on valid grounds. Even at the time when the policy was taken, the complainant was suffering from bronchial asthma and hypertension. For the hypertension, the complainant was taking medicine for the last 10 years and for asthma, he was undergoing treatment from 1973 onwards. Suppressing all these material facts, policy was taken and in the proposal form nothing is stated about the pre-existing diseases. Since there is suppression of material facts and fraud was also practised by the complainant, the policy itself is void and on the basis of that, the complainant cannot make any claim. The above diseases also contributed for the heart problem of the complainant and because of that he had undergone bypass surgery. The nature of illness of the present claim is to be considered as pre-existing and the Opposite party has repudiated the claim on valid grounds. According to the Opposite party, there is no deficiency of service on their part and the complaint is liable to be dismissed.

The evidence adduced by both parties consists of the proof affidavit and Exhibit A1 to A4 on the side of the complainant and Exhibit B1 to B3 and Exhibit B3(a) along with proof affidavit on the side of the opposite party. Exhibit B3 was marked with objection.

The issues for consideration are

1. Whether there is deficiency of service on the part of the Opposite party?

2. If so, what is the relief and cost?

Matter was heard. We have carefully gone through all the relevant documents on

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record. It is an admitted fact that the complainant is a policy holder of Opposite party company and the period of policy is from 27/11/2004 to 26/11/2005. Original Insurance policy is marked as Exhibit B1. The complainant has undergone Coronary bypass Operation and treated as inpatient from 06/09/2005 to 14/09/2005 in Moulana Hospital, Perinthalmanna. This is evident from the medical certificate issued by the consulting doctor which is marked as Exhibit A4. So the treatment was within the period of policy.

It can be seen from Exhibit A4 document that the history of the disease was 2 months back. Opposite party is heavily relying on the report of the investigating officer and written statement filed by the complainant marked as Exhibit B3 and Exhibit B3 A respectively. In the written statement of the complainant, he has stated that he was suffering from bronchial asthma and hypertension and that for hypertension he was taking medicine for the last ten years and for asthma he was undergoing treatment from 1973 onwards. This has been reported by the investigating officer in his report marked as Exhibit B3. Apart from the statement of the complainant, (Exhibit B3A ) there is absolutely no evidence to go on to show that complainant has any pre-existing disease. Had there been any pre existing disease, as contented by the Opposite party, Opposite party ought to have produced the relevant records. In the absence of any cogent evidence, the contention cannot be accepted at all.

Further Exhibit B3 shows that all other persons connected in one way or other with the complainant has stated that the complainant was a healthy person and there was no known disease suffered by him.

While cross examining DW1 the investigator, he has deposed that " Fsâ At\zjW¯n Ct±lw hfsc able bodied BsW¶pw daily morning walk þ\v t]mhmdps­¶pw pre existing Bbn Hcp disease Dw D­ bncp¶nà F¶pw F\n¡v a\Ênembn. Fsâ report {]Imcw At±lw a\]qÀÆw Cu disease supress sNbvXncp¶p F¶v Rm³ ]dªn«nÃ, This statement also go on to show that the complainant has not knowingly suppressed any material facts while taking policy.

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Now it is a settled position that, the burden of proving that the insured had made false representations and suppressed material facts is undoubtedly on the insurer. In Laxman Prasad Pandey V LIC of India IV 2006 CPJ 139 NC, Honourable NC held that, the contention of the LIC that the insured concealed material facts, that she suffered from hypertension for 6 years prior to her death cannot be accepted in the absence of any record filed by the Opposite party indicating treatment taken by the insured either as in or outpatient in any hospital.

In view of the above discussions we are of the view that the act of the Opposite party in repudiating the claim of the complainant on the ground of pre existing disease amounts to clear deficiency of service. As deficiency of services of the Opposite party is established, complainant is entitled for compensation.

In the result, complaint allowed. Opposite party is directed to pay the complainant an amount of Rs.1,00,000/- being the claim amount and Rs.10,000/- as compensation for the mental agony and Rs.1,000/- as cost of the proceedings. Order shall be complied with one month from the date of communication of the order failing which the whole amount shall carry interest at the rate of 9% per annum from the date of order till realization.

Pronounced in the open court on this the 10^th day of December 2008.

President (SD)

Member (SD)

Member (SD)

APPENDIX

Exhibits marked on the side of the Complainant

A1 – Policy receipt dated 26/11/2004

A2 – Letter of repudiation by the company

A3 series – Medical bills (12 nos)

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A4 – Medical certificate issued by Dr. Mahadevan

Exhibits marked on the side of the opposite party

B1 – Policy

B2 – Proposal form signed by complainant

B3 – Investigation report (with objection)

B3 (a) – Written statement of complainant before investigation.

Costs

Allowed.

Forwarded/By Order

Senior Superintendent