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          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.

          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.