Thiru J. Jayaram, J. - (1.) THIS appeal is filed by the opposite parties against the order of the District Forum, Tirunelveli, in C.C. No. 191/2010, dated 9.8.2011, allowing the complaint. The case of the complainants is that the 1st complainant who is the husband of the 2nd complainant had taken a health insurance policy with the opposite parties covering himself, his wife and two children and that when the policy was in force his wife suddenly took ill and was taken to Meenakshi Mission Hospital, Madurai on 4.11.2009 where it was diagnosed that she was suffering from Hernia and as she was health card holder of the opposite party, she sent a claim for Rs. 93,000 to the 1st opposite party on 4.11.2009 towards treatment expenses and the 1st opposite party called for additional information from the Hospital and after verification the opposite party Insurance Company at Hyderabad issued a letter of authorization to the hospital on 5.11.2009 for treatment to the 2nd complainant and after receipt of letter of guarantee for payment of Rs. 63,000 the hospital commenced treatment and operation was performed on 6.11.2009 and she was discharged on 9.11.2009. But, the 1st opposite party repudiated the claim on 9.11.2009 stating that there was possibility of the disease being pre -existing one cannot be ruled out. The 2nd complainant underwent surgery for Incisional Hernia operation which was not a recurrence of a particular disease. The repudiation of her legitimate claim amounts to deficiency in service on the part of the opposite parties. Hence, the complaint.
(2.) ACCORDING to the opposite parties, the 2nd complainant took treatment at Meenakshi Mission Hospital, Madurai for Hernia operation but she had already undergone Umbilical Hernia Operation previously on 14.8.2007 at Jeyasekaran Hospital, Nagercoil and thereafter she has taken treatment in Madurai Meenakshi Mission Hospital for her pre -existing disease which is excluded from the policy and also these material facts were suppressed by the complainant in the proposal form and the claim was repudiated for valid reasons and there is no deficiency in service on their part. The District Forum considered rival contentions and allowed the complaint holding that there is deficiency in service on the part of the opposite parties. Aggrieved by the impugned order, the opposite parties have preferred this appeal.
(3.) IT is contended by the appellants/opposite parties that the 2nd complainant had pre -existing disease and the material facts were suppressed and so the complainant is not entitled to claim under the policy. The point to be considered is whether the 2nd complainant was suffering from pre -existing disease and whether there is suppression of material facts. The contention of the respondent/complainant is that Hernia is not a recurring one and that she had no pre -existing disease. It is contended by the complainants that unlike other diseases once a person is operated for Hernia the above disease could not be considered as subsisting one and once Hernia operation is completed one cannot expect the recurrence of the same problem. There is no evidence on record to prove that after Umbilical Hernia Operation, the 2nd complainant was suffering from the same disease continuously and had taken treatment for the above disease. There are no materials to hold that she was suffering from recurrence of the disease and took treatment and therefore Hernia could not be considered as pre -existing disease. So, also there are no materials to come to the conclusion that the consequent surgery could be due to the complications arising out of the earlier operation and that there was pre -existing disease. No documentary evidence is adduced to establish that there is suppression of material facts and that the complainant had prior knowledge of the disease/medical problem. Therefore, we hold that the contention of the appellants/opposite parties that the 2nd complainant was suffering from pre -existing disease and that there is suppression of material facts by the complainant having prior knowledge of the disease is untenable.;