The connection between pre-existing disease and the claimed illness is crucial in determining entitlement to insurance claims.

Thiru Justice K. Sampath, President—The opposite party in O.P. No. 328/2000 on the file of the District Consumer Disputes Redressal Forum, Coimbatore, is the appellant. The case of the complainant was as follows:

(a) He had taken a mediclaim policy for himself, his wife and their child for the period from 20.10.1999 to 19.10.2000 for Rs. 30,000 for himself and Rs. 15,000 each for his wife and child. He had paid Rs. 650 as premium. He was admitted in Kumaran Hospital on 9.12.1999 and discharged on the next day after administering treatment for sinusitis. He did not make any claim for payment as he was a known case of sinusitis and there was exclusion Clause 4.3 for sinusitis. He did not inform the opposite party while taking the policy. Subsequently, through various biopsy tests as set out in the complaint between 10.12.1999 and 24.1.2001 he was diagnosed to suffer from ADENOID CYSTIL CARCINOMA (cancer malignancy). He took treatment from 18.1.2000 to 3.2.2000 as in patient and incurred an expenditure of Rs. 1,00,000 including the expenditure for plastic surgery. Since he could not claim the amount for plastic surgery, he restricted his claim to Rs. 30,000 the policy amount even though he had spent more for the treatment of malignancy examination and diagnosis and for medicines. Neither the complainant nor his surgeon was aware of the malignancy before taking the policy. The disease came to light only by report dated 16.12.1999. The opposite party repudiated the claim on 29.2.2000 on the ground of suppression of pre-existing disease. In such circumstances, the complaint came to be filed for Rs. 30,000 with interest Rs. 5,000 as compensation and Rs. 1,000 as cost.

2. The opposite party resisted the claim stating as follows : Under Clause 4.3 of the policy during the 1st year of the operation of the insurance cover, the expenses for treatment for sinusitis were not payable. The complainant was having the disease ADENOID CYSTIL CARCINOMA even before the effective date of policy. Since it was a pre-existing disease, he was not entitled to claim the amount on the ground of suppression under Clause 4.1 of the policy. The complainant had made a claim for Rs. 43,457 alleging that he took treatment for acute sinusitis and underwent excision of nasal mass on 8.12.1999. After investigation as per exclusion clause the claim was repudiated. The District Forum had no jurisdiction to try the dispute. The complainant could go to the Civil Court. There was no deficiency in service.

3. The District Forum found that there was no evidence to show that the complainant had cancer prior to taking the policy and that he had taken treatment for cancer knowing that he was suffering from cancer. According to him, he came to know that he had cancer only on 16.12.1999. Sinusitis was different from cancer. In such circumstances, the repudiation of the claim by the opposite party was not bona fide. By order dated 23.7.2001 the District Forum directed the opposite party to pay Rs. 30,000 with interest @ 12% p.a. from 29.2.2000 till payment, a sum of Rs. 2,000 towards compensation, Rs. 1,000 towards cost. It is as against that the present appeal has been filed.

4. Mr. P.V. Raghavan, learned Counsel for the appellant/opposite party had made the following submissions : The complainant had admitted that he was having a pre-existing disease prior to taking the mediclaim policy. This he had suppressed while taking the policy and this would come squarely under the exclusion clause and, therefore, the repudiation of the claim by the opposite party should have been upheld. The District Forum was in error in drawing the distinction that the treatment undergone by the complainant was for cancer which was different from sinusitis and that he came to know about cancer only after test reports, that he did not have cancer prior to taking the policy and, therefore, this would not come under exclusion. In this connection, The District Forum failed to take note of what was sta