KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.684/2015

JUDGEMENT DATED: 27.07.2022

(Against the Order in C.C.34/2014 of CDRF, Wayanad)

PRESENT:

APPELLANT:

(by Adv. G.S. Kalkura)

Vs.

RESPONDENT:

JUDGEMENT

SRI. RANJITH  R. : MEMBER

          This appeal is preferred by the opposite party against the impugned order dated 10.06.2015 passed by the Consumer Disputes Redressal Forum, Wayanad, Kalpetta (in short the District Forum) in C.C.No.34/2014.  The District Forum in its order directed them to pay Rs.11,098/- (Rupees Eleven Thousand and Ninety Eight) to the complainant with 12% interest from the date of claim till realisation.  They were also directed to pay Rs.2,000/- (Rupees Two Thousand) as compensation and Rs.1,000/- (Rupees One Thousand) as costs of the proceedings.

          2.       The facts leading to the case of the complainant is that she joined a Mediclaim policy of the opposite party insurance company on 14.03.2013.  The policy bearing no.P/181314/1/2013/005969 was valid from 14.03.2013 to 13.03.2014 and that the sum insured is for Rs.1,05,000/- (Rupees One Lakh Five Thousand) with a premium of Rs.5,090/- (Rupees Five Thousand and Ninety).  The complaint was admitted in Fathima Mission Hospital, Wayanad as inpatient from 26.10.2013 to 29.10.2013 for treatment for giddiness and swelling, which was diagnosed as Vertigo/OA.  She has to spend an amount of Rs.11,098 (Rupees Eleven Thousand and Ninety Eight) for the treatment.  The complainant thus submitted the claim for reimbursement of this amount from the opposite party insurance company.  But the opposite party had repudiated the claim stating that insurer/complainant had pre-existing disease of OA since 2005 and other diseases which were suppressed by her while taking the policy.  The complainant showing such repudiation being deficiency in service on the part of the opposite party filed the complaint before the District Commission.

          3.       The opposite party filed version stating that they have issued the policy based on the proposals made by the complainant that there was no pre-existing disease at the time of taking the policy.  The insurance contract is a contract of “uberimefide”.   The opposite party issued the policy on good faith based on the declaration made by the complainant in the proposal form.  However, it was found that the policy holder suppressed the material facts with regard to her health condition at the time of making the proposal.  According to the opposite party the complainant was suffering from Osteo Arthritis (OA) since 2005 and various other diseases since 2002 onwards, which was not disclosed by the insurer at the time of availing the policy.  Since the complainant has suppressed the material facts that she had pre-existing diseases, the claim falls under the Exclusion Clause of the policy and hence the claim was repudiated.

          4.       Evidence in the case consists of testimony of complainant’s husband as PW1 and Exhibit A1 and A2 were marked on her side.  Executive Officer of the opposite party was examined as OPW1, treating doctor was examined as OPW2 and insurance agent was examined as OPW3.  Exhibits B1 to B6 were marked on their side.

          5.       Appreciating the materials produced, the District Forum concluded that repudiating the claim amounts to deficiency in service and that complainant is entitled to get the claim amount.  On such conclusion, the District Forum passed the impugned order under challenge.

          6.       The learned counsel for the appellant challenging the order of the District Forum submitted that the Commission grossly mis-construed the pleadings and the documents laid in by the parties.  As per the contract of the insurance, the insured has to furnish true and correct facts in the proposal form for issuing the policy.  The policy issued by the complainant being a health policy, the complainant is bound to give proper information regarding her present and past health status at the time of filing proposal form.  The District Commission did not appreciate Exhibit B4 document wherein it was clearly mentioned that the complainant was suffering from OA since 2005.  The observation of the District Forum that in Exhibit B4, the Doctor filled up the column medical history and recorded OA without placing any document is erroneous and unsustainable.  Exhibit B4 was filled by the Doctor who had treated the complainant.  In the discharge summary (Exhibit B3) diagnosis of illness was recorded as Vertigo/OA and investigation was conducted by the opposite party and it was found that complainant was suffering from OA since 2005.  It is clear in Exhibit B4 document.  From the above it is convincing that the complainant has suppressed the material fact of pre-existing illness at the time of taking the policy.  Based on Exclusion Clause of the policy, pre-existing disease and suppression of material facts, the opposite party has rightly rejected the claim.  There is no deficiency in service on their part in repudiating the claim.  The learned counsel produced the judgements of Apex Court Satwant Kaur Sandhu Vs. New India Assurance Company reported (2009) ICO 2158, Bajaj Allianz Life Insurance Company Ltd. & others Vs. Dalbir Kaur reported in (2020) STPL 7535 SC and Manmohan Nanda Vs. United India Assurance Company Limited & others reported in (2021) ICO 2323 in support of his contentions.

          7.       The learned counsel for the respondent on the other hand submitted that the complainant was not having any complaint of Vertigo at the time of taking the policy for which the claim was made.  She was treated only for Vertigo and swelling in the feet.  She was admitted in the hospital for treating Vertigo and she has not taken any prior treatment for Vertigo.  According to him the proposal form was filled up by the Officer of the insurance company.  The complainant has just signed up the proposal form.  He further submitted that the complainant has not made any false declaration in the proposal form.  He drew the attention of the discussion made by the District Commission wherein it was observed that in Exhibit B4 the Doctor had written that the complainant was suffering from OA without any diagnosis and is only a presumption of the doctor.  Therefore there is no coagent and convincing record to prove that the disease in the complainant is a pre-existing one.  The learned counsel thus supports the impugned order.

          8.       We have considered the contentions of the learned counsel for respective parties and perused the records.

          9.       The issue here is whether the insured has suppressed the pre-existing disease and was making false statement while taking the policy.  The opposite parties inorder to substantiate their contention states that the complainant had suppressed the pre-existing disease recorded in Exhibits B4 medical record  in the original proposal form, which is marked as Exhibit B2.  Perusing the proposal form dated 14.03.2013 it is clear that the complainant has stated that she was not suffering from any disease in the health history column.  The above fact is admitted by both parties.  No doubt that the insurance contracts are of “uberimefide”.  The insured has to furnish the true and correct facts for issuing the policy.  Now the question comes whether the aforesaid declaration in the proposal form is false and fabricated by the policy holder by contravening the contract which is based on the above principle of contract.  Exhibit B3 discharge summary dated 29.10.2013 relied by the opposite parties shows that the diagnosis of the illness was recorded as Vertigo/OA (Osteo Arthritis) and in Exhibit B4 which is the extract of case sheet at the same hospital during the period from 2002-2007, shows that the complainant was suffering from Osteo Arthritis since 2005 and was suffering from various diseases like Bronchial Asthma, HTN since 2002 and DLP since 2001.  However, we note that the OA mentioned in Exhibit B4 occurred during 2005.  Whereas the policy was taken only in the year 2013.  It is a settled proposition that the pre existing disease means the disease for which the insured has been hospitalized or undergone operation in the near proximity to the policy.  It is so held by the Hon’ble National Commission in the case of Pradeep Kumar Garg Vs. National Insurance Company reported in III(2008) CPJ 423.  It is true that the complainant was having OA during the year 2005 and was given treatment for the same.  However, there is no record to show that she has taken any treatment after 2005 for either OA or for Vertigo for which she was alleged to have been treated in the year 2013.  The policy was taken after eight years, i.e. during the year 2013.  It is thus clear that she was not treated for Vertigo or OA in the near proximity of the policy.  Moreover, the treating doctor who was examined as OPW2 has deposed that OA stated in Exhibit B4 case sheet was not written as per the diagnosis, after taking proper medical test including lab tests or imaging, but was inferred based on the symptoms only.  Hence from Exhibit B4 it cannot be concluded that complainant had OA during 2005 as alleged by the insurance company.   In the discharge summary dated 29.10.2013 it is noted that the complainant was treated for edema and giddiness, on and off.   Edema also called swollen feet, can cause due to underlying disease.  Example includes a sprain or strain, fluid retention from large salt intake or due to prolonged standing or walking etc and dizziness due to Vertigo.  Eventhough the doctor in Exhibit B3 has stated that the patient was diagnosed as Vertigo/OA in the diagnosis column, treatment was given primarily for Vertigo only as can be seen form discharge summary itself.  Vertigo is a sudden internal or external spinning sensation.  Vertigo may include an inner ear infection or inflammation of the Vertibular nerve, which runs into the inner ear.   It has nothing to do with OA, which is caused due to degenerative joint disease.  The complainant was administered Virtin for curing Vertigo and other multi vitamins and proteins substitutes like “Revite”.  From this Exhibit it can be seen that she was not treated for OA during 2013.

          10.     From the facts narrated above it can be safely concluded that the complainant was not suffering from any disease stated in Exhibit B4 case sheet at the particular period while she has taken the policy in question.  The Hon’ble Apex Court in Manmohan Nanda Vs. United India Assurance Co. Ltd. & others reported in (2021) ICO 2323 has held that

“If a fact, although material, is one which the proposer did not and could not in the particular circumstances have been expected to know, or if its materiality would not have been apparent to a reasonable man, his failure to disclose it is not a breach of his duty.  A proposer is under a duty to disclose to the insurer all material facts as are within his knowledge.  The proposer is presumed to know all the facts and circumstances concerning the proposed insurance.   Whilst the proposer can only disclose what is known to him, the proposer’s duty of disclosure is not confined to his actual knowledge, it also extends to those material facts, which, in the ordinary course of business, he ought to know.  However, the assured is not under a duty to disclose facts which he did not know and which he could not reasonably be expected to know at the material time.” 

Here as stated above the complainant has not undergone any treatment for OA after 2005.  She was not at all treated for Vertigo before taking the policy.  Naturally, the complainant reasonably was not expected to know her medical condition at the time when she had taken the policy and hence her failure to disclose previous status of health in itself is not a breach of her duty.  The complainant/insured is not under a duty to disclose facts which she did not know and which she could not reasonably be expected to know at the material time.

11.     In the light of the above discussions, we hold that opposite parties have not proved that the policy holder has suppressed the pre-existing disease on the date of availing the proposal form.  We reiterate that the policy holder has not suppressed the pre-existing disease in the proposal form while taking the policy.

12.     In these circumstances we are of the view that the repudiation of the claim by the insurance company/opposite party is illegal.  The District Commission analysed the material on record correctly and there is nothing to interfere and hence the impugned order is only to be confirmed.

In the result the appeal is dismissed.  The parties to suffer their respective costs.

The statutory amount of Rs.8,230/- (Rupees Eight Thousand Two Hundred and Thirty) deposited by the appellants shall be released to the 1^st respondent on filing proper application before this Commission.  The balance amount shall be paid by the appellants within one month from the date of receipt of this judgement, failing which respondent can initiate appropriate proceedings for executing the order.

SL