2009(1) CPR 135
RAJASTHAN STATE CONSUMER DISPUTES REDRESSAL COMMISSION, JAIPUR
Sunil Kumar Garg, President; T.P. Gupta and Vimla Sethia, Members
National Insurance Co. Ltd. —Appellant
versus
Smt. Swaraj Jain —Respondent
Appeal No. 878 of 2007
Decided on 26.7.2007

IMPORTANT POINT
For repudiating a claim of an insured, it is for the insurer to show that a statement on a fact, which was material for the policy, had been suppressed by the insured and that statement was fraudulently made by him/her with the knowledge of the falsity of that statement.

Headnote:Consumer Protection Act, 1986—Sections 12 and 17—Claim under Medi-claim policy—Appellant Insurance Co. repudiated claim that heart ailment for which claim was lodged had been found to be pre-existing and it was case of suppression of material fact—District Forum allowed complaint—Appeal—Medi-claim policy was taken on 2.4.1996 and was got renewed every year till last from 2.4.1998 to 1.4.1999—Insured was got admitted in hospital with chest pain on 5.7.1998 was diagnosed suffering from heart diseased—Discharge ticket mentioned that disease was suffering from hypertension, diabetes with cononary artery disease for last ten years—Insured was again admitted in hospital on 24.7.1998 where angiography and doppler were done and by-pass surgery was carried out on 5.8.1998 and he died on 6.8.1998—Death summary mentioned that deceased was having hypertension, diabetes since last 7 years and had suffered anteroseptal wall myocardial infraction 14 years back—No evidence or material that insured had ever taken any treatment for heart problem prior to taking medi-claim policy—Suppression of fact must be conscious—Past history recorded in bed head ticket or in death summary was even not a primary evidence—Insured could not be said to have suppressed material facts—No reason to interfere with.

       Held: In this case, no doubt as per discharge ticket of RNT Medical College and Maharana Bhupal Government Hospital, Udaipur, in the past history, it was written that deceased was suffering from the disease of heart for the last 10 years and in the death summary of Escort Heart Institute, New Delhi, it was further mentioned that deceased was suffering from heart disease and he has also suffered anteroseptal wall myocardial infraction 14 years back, but there is nothing on record to show that before taking the first Mediclaim policy on 2.4.1996, the deceased had taken treatment of heart in any hospital or had consulted any medical man for treatment of heart.

       In our considered opinion, since there is no documentary proof or evidence available on record to show that the deceased was admitted in any hospital or consulted any medical man for treatment of disease of heart prior to filling in the declaration form for taking first Medi-claim policy on 2.4.1996, therefore, it cannot be said that the deceased was guilty of suppression of material facts about health. No doubt in the discharge ticket of RNT Medical College, Udaipur and in the death summary of Escort Heart Institute, New Delhi, it was mentioned in past history that deceased was suffering from disease of heart for the last 10 years and he suffered anteroseptal wall myocardial infraction 14 years back, but to corroborate and prove these entries, no cogent and reliable documentary proof or evidence or material has been produced by the appellant showing that the deceased had earlier taken treatment of heart disease in any hospital. The appellant had failed to produce any document or paper to show that deceased had taken treatment of heart disease prior to taking that first Mediclaim policy on 2.4.1996 and, therefore, it, cannot be said that it was a case of suppression of material facts regarding health on the part of the deceased.

       Apart from this, it may be stated here that the past history recorded in the bed head ticket of hospital could not be treated as primary piece of evidence to prove any fact until and unless the doctor who had recorded that history had been produced and primary evidence would be of the doctor, who had recorded the information in the bed head ticket. (Para 26 to 28)

       Furthermore, for diagnosing the heart disease, some necessary tests are ECG, echo, doppler, angiography, etc. and until and unless they are done, heart disease could not be diagnosed. In this case, there is nothing on record to suggest that prior to taking the first Medi-claim policy on 2.4.1996, the deceased had undergone any of the above tests. Some tests for the first time were got done at RNT Medical College and Maharana Bhupal Government Hospital, Udaipur when deceased was admitted in that hospital on 5.7.1998 and similarly, angiography was done on 25.7.1998 and echo and doppler was done on 27.7.1998 when deceased was admitted in Escort Heart Institute, New Delhi on 24.7.1998. Since there is nothing on record to show that deceased had undergone any of the above tests especially angiography or echo, prior to taking the first Medi-claim policy on 2.4.1996, therefore, it cannot be said that deceased was aware of the fact that he was suffering from heart disease at the time of taking first Medi-claim policy on 2.4.1996. Thus, if the deceased had not disclosed in his declaration form while taking first Medi-claim policy on 2.4.1996 that he was suffering from heart disease, it cannot be said that he was guilty of suppression of material facts. (Para 29)

       Result: Appeal dismissed.