CAV JUDGMENT

(PER: THE HON'BLE MR JUSTICE V KAMESWAR RAO)

This appeal has been filed by the appellants challenging the order dated 21.10.2022 of the learned Single Judge in W.P.No.14346/2021 (GM-RES), whereby the learned Single Judge has dismissed the writ petition.

2. The challenge of the appellants in the aforesaid writ petition was to the order dated 29.03.2021 passed by respondent No.1/Insurance Ombudsman declining to accept the insurance claim of the appellants. They had also sought quashing of letter of repudiation dated 14.12.2020 of respondent No.2/Insurance Company and sought a consequential direction for issuance of writ in the nature of mandamus for release of an amount of Rs.28,43,684/- being their claim.

3. Some of the facts that require to be noted for a decision in the appeal are, the appellants are wife and husband. They with intent to build a house, opted for a home loan from respondent No.2-Company. The said loan came with ‘Home Suraksha Plus’ dated 29.04.2014 and was to be for a period of 5 years till 28.04.2022. The policy covered major medical illness and procedures to an amount of Rs.56,87,368/- jointly for both the appellants.

4. It was the case of the appellants that on

10.08.2020, the Doctors at Vikram Hospital have diagnosed appellant No.1 to be suffering from Multiple Sclerosis and started the treatment. After the treatment, the insurance claim was made on the strength of the insurance coverage that was given by respondent No.2-Company in its policy dated 29.04.2017.

5. The claim was repudiated by respondent No.2-

Company vide its letter dated 14.12.2020 on the ground that appellant No.1 was diagnosed to be suffering from Multiple Sclerosis from 27.03.2017 and the ailment was a pre-

existing ailment.

6. On rejection of their claim by respondent No.2-

Company, the appellants approached respondent No.1- Insurance Ombudsman, who vide its order dated 29.03.2021, affirmed the repudiation of claim of the appellants by holding that the appellants were guilty of non- disclosure of information about serious illness despite it being in their knowledge.

7. The case of the appellants before the learned Single Judge was that, on 27.03.2017, appellant No.1 had only developed giddiness and vomiting and was diagnosed as vertigo and the further diagnosis of the appellant No.1 was multiple sclerosis with a question mark. According to them, for the first time the Doctors at Vikram Hospital on 10.08.2020, opined that appellant No.1 is suffering from multiple sclerosis. Therefore, there was no occasion to mention a problem that would occur in future when the insurance policy was taken.

8. On the other hand, the case of respondent No.2-

Company was that the appellants were guilty of suppression of pre-existing illness, notwithstanding the policy making it clear that if any pre-existing illness of any kind particularly mentioned in the policy, ought to have been mentioned. Since pre-existing illness clearly relates to multiple sclerosis, the appellants being guilty of such suppression, the claim cannot be accepted and the order of the Insurance Company repudiating the claim is in consonance with law, so is the order passed by the Insurance Ombudsman.

9. Suffice to state that the counsel for the parties had relied upon many judgments in support of their respective stand before the Learned Single Judge.

10. Learned Single Judge has dismissed the writ petition by stating in paragraph No.11 of the judgment as under:

“11. On a coalesce of the judgments rendered by the Apex Court and that of the Bombay High Court the unmistakable inference would be that mediclaim policy being a non-life insurance policy, is a contract of insurance falling in the category of a contract uberrimae fidei which would mean, the contract of utmost good faith on the part of the assured. Divulging pre-existing illness was a duty of the insured. Having not done so, the repudiation of the claim cannot be found fault with in the teeth of the preceding analysis.”

11. So, f