- (1.) HEARD Mr. Zubin F. Bharda, learned Advocate for the appellant. This appeal under Section 15 of the Consumer Protection Act, 1986 is directed against order dated 14.7.2008 rendered in Complaint No. 89 of 2007 by the learned Navsari District Consumer Disputes Redressal Forum, Navsari dismissing the complaint with cost of Rs. 2,000 payable to the opponent.
(2.) IT is suggested from the submissions advanced by the learned Advocate for the appellant as well as the impugned judgment that the complainant had taken a mediclaim policy from the opponent Insurance Company. The said mediclaim policy was renewed from time -to -time. The last policy was taken for the period 25.10.2006 to 24.10.2007 being No. 4820 for Rs. 1,00,000. Thereafter, the complainant suffered pain in the lower abdomen and on medical examination it was found that there existed a tumor. The complainant was admitted to the hospital of Dr. Nadkarni on 17.3.2007. The doctor performed operation and removed the tumor from the lower abdomen. The total expenses incurred were around Rs. 39,724. The claim was lodged under the aforesaid mediclaim policy with the Insurance Company for reimbursement of the expenses incurred towards medical treatment. The claim came to be repudiated by the Insurance Company stating that there was suppression of material fact inasmuch as the complainant suffered cyst earlier and had to undergo surgical operation in the year 1988 and this fact was not disclosed while obtaining the renewal policy. The learned District Forum, upon appreciating the contentions raised by the parties and the material on record, passed order aforestated.
(3.) IT is submitted by Mr. Bharda learned Advocate for the appellant that the cyst which was in the year 1988 for which the complainant was required to undergo surgery is not relevant inasmuch as the earlier cyst was in the upper limb of the body whereas the cyst which developed in the year 2007 was in the lower abdomen and it is not suggested that the development of the cyst in the lower abdomen was on account of or because of the earlier cyst for which the complainant was operated in the year 1988. It need hardly be stated that there are certain ailments which may occur today; patient may be treated for the same today and after number of years, the same trouble may re -occur. It need hardly be said that the cyst or malignancy cannot be said to remain localised inasmuch as the development of cyst/malignancy may be in one part of the body and after some years the same may develop in some other part of the body irrespective of whether lower limb or upper limb at later point of time. It is not disputed that while obtaining 3rd renewal of the mediclaim policy in question the fact of the patient having earlier developed cyst and was operated in the year 1988 was not disclosed by the complainant to the Insurance Company. It need hardly be said that the contract of insurance is a contract of utmost good faith uberrima fide. It was necessary for the complainant to disclose that in the year 1988 cyst had developed in the upper limb of the body and she was required to undergo surgery/operation for removal of the cyst. Had this fact been brought to the notice of the Insurance Company, then the opponent may have put its own condition/exclusion, etc. while issuing the renewal policy in the year 2006 -2007. We have seen the proposal form which also contains a questionnaire. Questions 11 and 15 require the insured to disclose whether the insured ever suffered from cancer, malignant growth, boil, cyst or wound, etc. and the answer given is in the negative. Question 15 requires to state whether the insured suffered from any other complaint requiring specialist s consultation or surgical or hospital treatment or investigations. The answer is in the negative. These two questions made it imperative upon the insured to disclose the fact of she having earlier developed cyst though may be in the upper part of the body and for the removal of the same she was required to undergo surgical operation in the year 1988.;