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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.14346 OF 2021 (GM-RES)
BETWEEN:
1 . MRS. JAYA ELIZABETH MATHEW
AGED ABOUT 37 YEARS
W/O MR.PRENEESH OMMEN
RESIDING AT NO.54 BETHLEHEM
3RD CROSS, KAVERI ENCLAVE
9TH CROSS, KANSHIRAMNAGAR
LAKSHMIPURA
VIDYARANYAPURA PO
BENGALURU - 560 097.
2 . MR.PRENEESH OMMEN
AGED ABOUT 40 YEARS
S/O MR.DAVID OMMEN
RESIDING AT NO.54, BETHLEHEM
3RD CROSS, KAVERI ENCLAVE
9TH CROSS, KANSHIRAMNAGAR
LAKSHMIPURA
VIDYARANYAPURA P O
BENGALURU - 560 097.
... PETITIONERS
(BY SRI APOORV KHATOR, ADVOCATE FOR
SRI PARASHURAM A.L., ADVOCATE)
R
2
AND:
1 .
INSURANCE OMBUDSMAN FOR THE STATE OF KARNATAKA
OFFICE OF THE INSURANCE OMBUDSMAN (KARNATAKA)
19/19, JEEVAN SOUDHA BUILDING
GROUND FLOOR, 24TH MAIN
J.P.NAGAR, 1ST PHASE
BENGALURU – 560 078
REPRESENTED BY ITS SECRETARY.
2 .
HDFC ERGO GENERAL INSURANCE COMPANY LTD.,
1ST FLOOR, 165, BACKBAY RECLAMATION
H.T.PAREKH MARG, CHURCHGATE
MUMBAI – 400 059
REPRESENTED BY THE MANAGER.
... RESPONDENTS
(BY SRI S.KRISHNA KISHORE, ADVOCATE FOR R2;
R1 – SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH AWARD
DTD 29.03.2021 ARISING FROM COMPLAINT PASSED BY R-1 VIDE
ANNX-A; QUASH THE REPUDIATION LETTER BY WAY OF E-MAIL
DTD 14.12.2020 ISSUED BY R-2 VIDE ANNX-H; DIRECT TO R-2 TO
ALLOW
THE
CLAIM
OF
THE
PETITIONERS
IN
TERMS
OF
REIMBURSEMENT FORM DTD 29.09.2020 VIDE ANNX-G AND
DIRECT THE RELEASE OF THE AMOUNT OF RS.28,43,684/-
(RUPEES TWENTY EIGHT LAKHS FORTY THREE THOUSAND SIX
HUNDRED
AND
EIGHTY
FOUR
ONLY)
WITH
APPROPRIATE
INTEREST.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 12.10.2022, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
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The petitioners are before this Court calling in question order
dated
29-03-2021
passed
by
the
1st
respondent/Insurance
Ombudsman declining to accept the insurance claim of the
petitioners, sought quashment of letter of repudiation dated 14-12-
2020 issued by the 2nd respondent/Insurance Company and a
consequential direction of issuance of a writ in the nature of
mandamus directing release of an amount of Rs.28,43,684 being
the Insurance claim of the petitioners.
2. Heard Sri Apoorv Khator, learned counsel for the
petitioners and Sri S.Krishna Kishore, learned counsel for the 2nd
respondent.
3. Shorn of unnecessary details, facts in brief, as borne out
from the pleadings, are as follows:-
The petitioners are wife and husband respectively. 1st
respondent is the Insurance Ombudsman and the 2nd respondent is
the insurer/HDFC Ergo General Insurance Company (‘the Company’
for short). The petitioners having a desire of building a house opted
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for home loan through the 2nd respondent/Company. The loan came
with “Home Suraksha Plus’ dated 29-04-2017 and was to be for a
period of 5 years from 29-04-2017 to 28-04-2022. The policy
covered major medical illness and procedures to an amount of
Rs.56,87,368/- jointly for both the petitioners. On 10-08-2020, it
appears that the Doctors at Vikram Hospital diagnosed the 1st
petitioner to be suffering from Multiple Sclerosis and started
treatment immediately. After the treatment, the insurance claim
was made on the strength of the insurance coverage that was given
by the 2nd respondent/Company in its policy dated 29-04-2017.
The claim was repudiated by communication of the 2nd respondent
dated 14-12-2020 on the ground that the 1st petitioner was
diagnosed to be suffering from multiple sclerosis from 27-03-2017
and the ailment was a pre-existing ailment which had not been
divulged by the petitioners while filling the form claiming such
insurance. Against the said repudiation, the petitioners approached
the Insurance Ombudsman challenging repudiation by the 2nd
respondent/Company. The Insurance Ombudsman by an order
dated 29-03-2021 affirms repudiation of the claim of the petitioners
and also holds that the petitioners were guilty of their non-
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disclosure of information about serious illness notwithstanding it
being in their knowledge. It is the order of repudiation by the 2nd
respondent/Insurance
Company
and
the
order
of
the
1st
respondent/Insurance Ombudsman that drives the petitioners to
this Court in the subject petition.
4. The learned counsel appearing for the petitioners would
contend that on 27-03-2017 the 1st petitioner had developed only
giddiness and vomiting and was diagnosed as vertigo and the
further diagnosis of the 1st petitioner was multiple sclerosis. It is
for the first time the Doctors at Vikram Hospital opined that the 1st
petitioner is suffering from multiple sclerosis. Therefore, the
petitioners had no occasion to mention a problem that would occur
in future when the insurance policy was taken. On these technical
grounds the claim of the petitioners is rejected. The learned counsel
would seek to place reliance on the co-ordinate Bench decision of
this Court in MRS. SHIVAPRABHA JAYAPRAKASH SHETTY v.
UNION OF INDIA – Writ Petition No.52434 of 2018 decided on
20-08-2019; Division Bench judgment of this Court in NATIONAL
INSURANCE
COMPANY
LIMITED
v.
SHIVAPRABHA
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JAYAPRAKASH SHETTY – Writ Appeal No.3944 of 2019
decided on 19-02-2020; order of the High Court of Delhi in
PAVAN
SACHDEVA
v.
OFFICE
OF
THE
INSURANCE
OMBUDSMAN AND ANOTEHR – W.P.(C) 6304 of 2019 decided
on 27-07-2020 and a decision of the Madras High Court in
JASMINE EBENEZER ARTHUR v. HDFC ERGO GENERAL
INSURANCE COMPANY LIMITED AND OTHERS – W.P.Nos.
22234 of 2016 and others decided on 6-06-2019.
5. On the other hand, the learned counsel for the 2nd
respondent/Insurance
Company
enters
appearance
and files
detailed statement of objections and taking support from the
documents appended to the objections would see
