- (1.) THIS appeal arises from order dated 2.6.2003 rendered by the learned Consumer Disputes Redressal Forum, Surat in Case No. 341 of 2000 directing the opponent Insurance Company to make payment of mediclaim amount in the sum of Rs. 42,000/ - with interest @ 12% p.a. from 31.1.2000 to the date of payment and cost quantified at Rs. 750/ -.
(2.) THE facts of the case run into a narrow compass. The complainants had mediclaim policy for the sum of Rs. 1,00,000/ - commencing from 23.7.1999 to 22.7.2000. The proposal form for the said policy was submitted on 23.7.1999 and the health of the insured was stated to be good and there was no disclosure of ailment, if any. Complainant No. 2 went for treatment of thyroid resulting into operating process at P.D. Hinduja National Hospital and Medical Research Centre on or around 12.12.1999. The patient came to be discharged from the hospital on 17.12.1999. It would appear from the hospital papers that the patient had swelling over the neck for 1 months before the date of admission i.e., somewhere in the month of October, 1999. The complainants put up the claim under the mediclaim policy in question but the opponent Insurance Company repudiated the same on ground that the ailment of thyroid was pre -existing and also on the ground that the complainant suppressed material facts with regard to such pre -existing ailment. The learned Forum came to the conclusion that the opponent Insurance Company failed to prove such ground of repudiation. The learned Forum, therefore, awarded the amount as stated above.
(3.) WE have heard the learned Advocates appearing for the parties. We have gone through the memorandum of appeal. We have gone through the impugned order. It would appear from the medical case papers of P.D. Hinduja Hospital that complainant No. 2 came to be admitted for the particular ailment namely progressing increasing swelling on the left side of neck 1 months. That happened in or around October, 1999 as per the case papers. Medically that would indicate early growth of thyroid and it would definitely date back at least to the extent of six months to one year. This would lead to the situation that would require the complainant to produce appropriate evidence before the learned Forum to show when she was first treated for the said ailment. Once the opponent Insurance Company produced the case papers of P.D. Hinduja Hospital, the burden shifted upon the complainant to do so. In our considered opinion, complainants having failed to discharge such burden, repudiation of the claim by the opponent on the aforesaid ground cannot be faulted and there was no deficiency in service when opponent Insurance Company repudiated the claim. In view of what is stated above and bearing in mind the facts and circumstances of the case, we pass following order. ORDER Impugned order dated 2.6.2003 rendered by the learned Consumer Disputes Redressal Forum, Surat in Case No. 341 of 2000 is hereby set aside. The complaint will stand dismissed. This appeal will stand allowed with no order as to costs throughout. Mr. Justice M.S. Parikh, PresidentInsofar as the facts of the case are concerned, a little deviation needs to be made. It is no doubt true that the case papers would go to indicate existence of swelling on the left side of the neck dating back 1 months prior to 12.12.1999, when complainant No. 2 was admitted to P.D. Hinduja Hospital. However, that will not lead to presumption that it would extend well further prior to October, 1999. Such a presumption of fact cannot be made in law. The burden of proof which was obviously on the opponent Insurance Company to establish pre -existing disease and non -disclosure was, therefore, obviously not discharged in spite of the fact that the opponent Insurance Company had sufficient opportunity right from the time it had occasion to examine the case papers as also claim papers submitted by the consumer. Obviously, the result would be that the opponent Insurance Company repudiated the claim without there being any basis available with it for forming an opinion that complainant No. 2 suffered from Thyroid ailment right from the time when complainant had submitted that proposal form. Thus, there was clear deficiency in service on the part of the opponent Insurance Company. In that view of the matter, impugned order of the learned Forum cannot be faulted. 2. Following order is, therefore, passed. ORDER (a) This appeal is dismissed, with no order as to costs. (b) In view of the majority decision, the amount of Rs. 21,000/ - stated to have been deposited by the opponent Insurance Company be verified and paid back to the Insurance Company, with interest, if any, by A/c. Payee cheque after passage of six weeks from today.;