The burden of proof is on the opponent to establish with sufficient evidence that the claim pertained to a pre-existing disease, and the court emphasized the importance of medical evidence in determining the validity of the claim.

ORDER :

MR. P.O. LAD, JUDICIAL MEMBER

1. Being aggrieved and dissatisfied with the order dated 31.1.2013 rendered by the Consumer Disputes Redressal Forum, Rajkot in Consumer Complaint No. 259 of 2012. The original opponent No. 1 has preferred present appeal on the grounds stated in the appeal memo. The parties will be referred to as per their original nomenclature for the sake of convenience.

2. Short facts giving rise to this Appeal are as under:

The complainant was having insurance policy of the opponent Insurance Company for the period from 9.4.2009 to 8.4.2010. The complainant renewed the insurance policy every year. During March 2012, when the complainant was in Mumbai, he has developed sudden urinary problem and approached Urologist Dr. Ketan Desai at Bhatiya Hospital and was advised to undergo various tests and Cystoscopy was done for investigation and found that there was narrowing in the urethra with severe cystitis and was operated by the said Surgeon and was hospitalized for three days from 20th March 2012 to 23rd March 2012. He was advised for further check up and medication for three months. The complainant had incurred Rs. 1,34,484 for the charges towards above referred treatment and he had to incurred Rs. 7,800 for medicines and surgeon’s fees for check up. The complainant filed claim with the opponent Insurance Company by providing all relevant documents. However, the opponent rejected the claim on the grounds that the deceased was having pre existing disease and to avail the benefit of pre existing disease, completion of three years insurance policy are required. The complainant approached the Surgeon for clarification and the Surgeon told the complainant that it was not the complication of the previous operation of pre-existing disease and it was a sudden development. However, the opponent Insurance Company repudiated the claim considering the pre-existing disease. It is the case of the complainant that the opponent had repudiated the claim and shown deficiency in service and unfair trade practice. Hence, the complainant filed Complaint before the Consumer Disputes Redressal Forum at Rajkot being Consumer Complaint No. 259 of 2012. The learned Forum passed an Award in favour of the complainant by a judgment and order dated 31.1.2013.

3. Being dissatisfied with the order of the learned Forum, present appeal is filed before the State Commission on the grounds stated in the Appeal Memo. It is mainly contended that the complainant had not filed any affidavit of treating doctor. Learned Forum has not rightly appreciated the facts on record so far as the pre existing disease is concerned. In fact, the opponent has taken defence for pre-existing disease and as per the terms and conditions of the insurance policy, the complainant is not entitled to claim any compensation for pre existing disease upto three year. Hence, this Appeal before the State Commission,

4. Heard learned Advocate Mr. M.J. Shelat for the opponent Insurance Company and heard learned Advocate Mr. S.C. Shah for the complainant.

5. We have gone through the judgment of the learned Forum in complaint No. 259 of 2012. We have also gone through all the documentary evidence produced on record by both the parties.

6. So far as the insurance policy is concerned, it appears that there is no dispute between the parties. However, it is mainly argued out that the complainant has taken treatment for the pre existing disease. However, we do not agree with the submission. The learned Forum has discussed in detail regarding this issue. It appears that the complainant was diagnosed for Hemoturnia and severe cystitis. Io other words, he had problem of narrowing in the urethra with severe cystitis with complaint of bleeding and this complaint was not at the time of earlier operation for Cystoscopy and this thing is also clarified by the Senior Surgeon Dr. Ketan Desai vide Exh. 4/63 and the opponent could not produce any evidence to rebut this evidence. According to settled