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5. The only point urged by the learned counsel for the appellant before us was, that the insured/complainant, not only suppressed the material facts, which he bound to disclose, but also had taken treatment for pre-existing disease, which is proved not appreciated by the District Forum, thereby warranting unavoidable interference by this commission, which is opposed, as if there was no suppression of material facts, or pre-existing disease.

 

6. It is an undisputed fact, that the complainant had taken mediclaim policy with the opposite party, from 14.10.2004, renewed the same upto 13.10.2006, not only for him, but also his family members, and the sum assured for the complainant was Rs.150000/-. During the currency of the policy, for heart problem, he was admitted originally, in Harvey Healthcare Hospital Ltd., then admitted in M/s. Madras Medical Mission Hospital, where he had undertaken the bye-pass heart surgery on 12.1.2006, discharged on 25.1.2006. For the above said treatment, he had incurred a total expenses of RS.2,71,000/-.

Neither the quantum, nor the treatment taken is under dispute. When the complainant lodged a claim, for the medical expenses, based upon the policy, it was repudiated, which was challenged before the Ombudsman, unsuccessful, resulting the consumer complaint as said above.

 

7. As rightly urged by the learned counsel for the respondent/ complainant, because of the admitted policy, the burden is upon the opposite party to prove that the complainant had suppressed the material facts, as well as had pre-existing disease, for which alone, the complainant had taken treatment which excluded. If that is proved, to our satisfaction, then the repudiation cannot be branded as deficiency in service, proceeded by negligence, since law is well settled, a person who had suppressed the material facts, violated the terms of the contract, thereby resulting the contract itself void, and such a person is not entitled to claim reimbursement, if he had taken treatment for pre-existing disease.

 

9. Ex.B1 is the proposal for mediclaim insurance, signed by the complainant, which mandates certain disclosures by the insured person, and one of the query is Have you ever suffered from diabetes, hypertension chest pain or coronary insufficiency or myocardial infarction?. For this the complainant said No, thereby making the insurance company to believe that he is not a diabetic/ hypertensive patient, or had any problem, of chest pain, coronary disease, or myocardial infarction. Though, as indicated in the proposal forum, ECG, blood test was taken, reports are not made available, as if that had not disclosed that the complainant, is non-diabetic, and had no problem of heart disease. We do not find any certificate in the proposal, as urged by the learned counsel for the respondent/complainant, that a competent doctor tested the complainant, certified as if he had no pre-existing disease, on the basis of the blood test, ECG taken, as disclosed in the proposal, we cannot rule out the pre-existing disease, or the suppression of material facts, if otherwise made out.

 

12. The case involved in the above decision also, relates to mediclaim policy, wherein a defense was taken, suppression of material facts, including the basic principle for insurance viz. uparimae fede. In that case, the patient, who was on regular dialysis, failed to disclose the information in the proposed form, regarding the health condition, and similarly in our case also, the complainant has failed to disclose the pre state of health, though he was a known diabetic and heart patient. The Apex court, giving the meaning for material facts, to whom it is relevant also, has come to the conclusion, if a person had suppressed the material facts, had taken a policy, then he is not entitled to the benefits conferred under the policy, that too in our case for taking treatment for pre-existing disease, which is excluded under the exclusion clause. The District Forum, unfortunately not reading the documents properly, simply brushing aside the arguments of the opposite party did not hold good, has come to a erroneous conclusion, that the bye-pass heart surgery will not lead to presumption, that the same was pre-existing, forgetting the diagnosis made by the doctor, including diabetes mellitus, and other heart oriented disease. Therefore, we are of the view, the order of the District Forum is highly erroneous, should be upset by allowing this appeal.