IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 17TH OCTOBER 2008 / 25TH ASWINA 1930 WP(C).No. 33382 of 2004(Y) -------------------------- PETITIONER(S): ---------------- P.M.ABDUL SHUKKOOR, S/O.MOHAMMED, AGED 44, PERAKATHUSSERIL, IST MILE, KANJIRAPALLY P.O. KOTTAYAM DISTRICT. BY ADV. SRI.JOHNSON MANAYANI RESPONDENT(S): --------------- 1. THE NATIONAL INSURANCE CO,LTD., 3, MIDDLETON STREET, CALCUTTA 700 071, REP. BY ITS GENERAL MANAGER. 2. THE GENEAL MANAGER, NATIONAL INSURANCE CO.LTD., 3 MIDDLETON STREET, CALCUTTA 700 071. 3. THE MANAGER, NATIONAL INSURANCE CO.LTD., CITY BRANCH, AMBIKA ARCADE, M.G.ROAD, THRISSUR-1. 4. THE INSURANCE OMBUDSMAN, COCHIN, O/O.THE INSURANCE OMBUDSMAN, PULNAT BUILDING, 2ND FLOORT, OPPO.COCHIN SHIPYARD, M.G.ROAD, ERNAKULAM 15, REP. BY ITS SECRETARY. ADV. SRI.SAJEEV KUMAR K.GOPAL FOR R4 SRI.BINOY VASUDEVAN FOR R4 SRI.RAJAN P.KALIYATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/10/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 33382/2004. -------------------------------------------------------------------- EXT.P1 TRUE COPY OF INSURANCE POLICY DT. 6-7-2002. EXT.P2 DISCHARGE CERTIFICATE DT. 23-9-2003. EXT.P3 TRUE COPY OF MEDI CLAIM . EXT.P4 MEDI CLAIM MEDICAL REPORT. EXT.P5 LETTER DT. 18-12-2003. EXT.P6 PETITION DT. 2-3-2004. EXT.P7 AWARD DT. 7-10-2004. EXT.P8 LETTER DT. 7-10-2004. EXT.P9 PETITION DT. 28-10-2004. EXT.P10 LETTER DT. 28-10-2004. EXT.P11 LETTER DT. 3-11-2004. RESPONDENTS' EXHIBITS: ------------------------------------ EXT.R3-(A )DISCHARGE SUMMARY DT. 29-8-2003. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 33382 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 17th October, 2008. J U D G M E N T The petitioner took a policy for medi-claim from the 1st respondent. In respect of that policy, the petitioner submitted a claim. That was rejected on the ground that the petitioner failed to disclose the fact of an earlier hernia operation. The petitioner filed a complaint before the Insurance Ombudsman. The petitioner engaged a counsel also. However, Ext. P.7 award was passed by the Ombudsman without hearing the petitioner's counsel. The petitioner filed an application for re-hearing, which was rejected by Ext. P11 on the ground that there is no provision for review of the award. 2. The petitioner raises two contentions. The first is that notice for hearing by the Insurance Ombudsman was issued directly to the petitioner, who was under the impression that since he had engaged an advocate, notice would be given to the advocate also. It is under the above circumstances that the advocate was not aware of the date of posting and he could not participate in the proceedings before the Ombudsman. The second contention is that the Insurance Company cannot unilaterally cancel a policy without a notice and hearing to the petitioner. 3. I have considered the contentions of the petitioner in detail. 4. I am of opinion that in so far as the Ombudsman had considered the matter on merits in very great detail, it is futile to either direct the Ombudsman to re-consider the matter or to direct the Insurance Company to consider the matter, after hearing the petitioner. I am also of opinion that, that would only prolong the agony of the petitioner himself. In the above circumstances, I asked the counsel for the petitioner to argue the matter on merits here itself, to which counsel for the petitioner agreed. Accordingly, I considered the matter on merits. W.P.C. No. 33382/2004 -: 2 :- 5. The petitioner does not now dispute the fact that as is evidenced by Ext. P2, the petitioner had earlier undergone a surgery, the fact of which was not disclosed in the proposal submitted by him for the policy. It is settled law that a contract of insurance policy is a contract of utmost good faith and both parties are liable to disclose every aspect relating to the policy to each other. When, admittedly, the petitioner did not disclose the fact of earlier surgery, which does have an impact on the decision to issue the policy to the petitioner, the petitioner cannot successfully challenge the rejection of his claim and cancellation of the policy on the ground of want of disclosure of material facts in the proposal for the policy. Therefore, I do not find any merit in the challenge against Ext. P7. Accordingly, the writ petition is dismissed. Sd/- S. Siri Jagan, Judge. Tds/