JUDGMENT : Petitioner, daughter of one late Jesudas Dinseh N Bangera, who was holding a health insurance policy issued by the first respondent company, has filed this writ petition challenging Exhibit P10 award No. 10/KOC/A/HI/0304/2020-2021 dated 16.12.2020 passed by the Insurance Ombudsman, Kochi in Complaint No. KOC-H-037-2021-0414; whereby the repudiation of the claim of the petitioner by the first respondent Insurance Company is upheld by the Ombudsman. 2. Brief material facts for the disposal of the writ petition are as follows: Petitioner's father has purchased a Health Insurance policy from the first respondent with the plan name “CARE”, having policy No.14048706 valid from 00.00 Hrs on 09.04.2019 to the midnight of 08.04.2020. The petitioner and the second respondent were joint policy holders along with their father. 3. The case of the petitioner is that the policy was issued after satisfying that all the policy holders have no pre-existing diseases. Anyhow, Sri.Jesudas died on 10.07.2019 while undergoing treatment due to sudden illness. Thereupon, the petitioner lodged a claim for the reimbursement of the medical expenses and she has submitted all the required documents to the first respondent company. But, the Insurance Company rejected the claim as per letter dated 15.11.2019 assigning a reason that ‘there is suppression about pre-existing ailment at the time of purchasing the insurance policy’. 4. According to the petitioner, the claim for reimbursement with all the required documents she submitted clearly stated that Sri. Jesudas had no previous ailments and he was hospitalized due to sudden brain hemorrhage on 09.06.2019. The petitioner has claimed that a total amount of Rs.10,48,499/-has been spent for the treatment of late Jesudas and according to the petitioner, the first respondent is liable to reimburse the same to the petitioner. 5. Anyhow, the claim raised by the petitioner was dismissed by the Ombudsman stating that there is suppression of material facts which disqualifies the petitioner from securing claim from the company. According to the petitioner, the order passed by the Insurance Ombudsman is arbitrary and illegal liable to be interfered with by this Court in a writ proceeding under Article 226 of the Constitution of India. 6. The first respondent company has filed a detailed counter affidavit virtually admitting the policy held by late Jesudas. According to the petitioner, the order passed by the Insurance Ombudsman is arbitrary and illegal liable to be interfered with by this Court in a writ proceeding under Article 226 of the Constitution of India. 6. The first respondent company has filed a detailed counter affidavit virtually admitting the policy held by late Jesudas. Among other contentions, it is submitted that the Insurance Ombudsman has considered the issues raised by the petitioner and has arrived at the conclusions after verifying all the documents submitted by the petitioner and therefore, on facts, the petitioner has not established a case for interference with the order of the Ombudsman in a writ proceeding. 7. The first respondent has also raised certain technical pleas with respect to the locus standiof the petitioner and submits that the second respondent, who is the nominee in the Medical Insurance Policy, alone has the locus standito file the writ petition. But, the fact that the petitioner was a co-insured in Exhibit P1 policy, is admitted. It is also stated that the insurance policy being contractual in nature, both parties are under an obligation to obey/fulfill all the terms and conditions of the same in the strict sense of the agreement executed by and between the parties. 8. It is further submitted that late Jesudas had made a proposal online for taking the policy and forwarded an online proposal to the respondent, as is evident from Exhibit R1(c). It is the case of the Insurance Company that it had requested the petitioner to give past medical history or any ailments, and also the details, if the proposed persons had suffered from any disease/illness, irrespective of whether hospitalized or not, since it was mandatory for the issuance of policy which resulted in the alteration of risk covered under the policy and premium amount. 9. It is further submitted that in the online proposal, the insured had unequivocally stated that the proposed insured persons are not having pre-existing diseases. Therefore, the sum and substance of the contention of the Insurance Company is that on the basis of the details furnished and believing the statements and placing credence on the insured, the company has, in good faith, issued the insurance policy. 10. Therefore, it is contended that in the instant case, late Jesudas had suppressed his history of hypertension at the time of filing of online proposal form and during medical examination. 10. Therefore, it is contended that in the instant case, late Jesudas had suppressed his history of hypertension at the time of filing of online proposal form and during medical examination. It is further pointed out that in the proposal form there is a specific question regarding the past medical history, wherein the insured Nos. 1 to 3 have stated ‘no’. It is further submitted that there was no deficiency or illegality on the part of the Insurance Company in repudiating the claim of the petitioner and the Ombudsman was right in disposing of the complaint. 11. Anyhow, it is pointed out that the Company is not liable under the policy to indemnify, as there was a specific exclusion clause contained under clause 7(1) and therefore, they seek dismissal of the writ petition. 12. I have heard the learned counsel for the petitioner Sri. Joseph George and the learned counsel for the first respondent company Sri. PS. Ramu, and perused the pleadings and material on record. 13. The question that emerges for consideration is whether the repudiation of the claim of the petitioner by the insurance company on the ground that late Jesudas had not disclosed the disease of hypertension at the time of taking the policy online and during the medical examination, and upholding the same by the Ombudsman can be sustained in law and facts. 14. The first respondent company had repudiated the claim of the petitioner as per Exhibit R1(f) dated 16.11.2019 by assigning the sole reason for ‘rejected as non-disclosure of hypertension and non-disclosure of material facts/pre-existing ailments at the time of proposal’. The Insurance Ombudsman has upheld the order of repudiation confirming the finding of the Insurance Company on the basis of the submissions made by the Insurance Company that the pre-existing disease of hypertension was suppressed. But, fact remains, the petitioner has clearly stated that the deceased had no pre-existing disease and that he had not undertaken any treatment prior to the policy. 15. The Insurance Ombudsman, relying upon the hospital records, observed that he has a history of hypertension and was on medication for 2 to 3 years, which pre-existed the policy and was not declared when the policy was taken on 09.04.2019. 15. The Insurance Ombudsman, relying upon the hospital records, observed that he has a history of hypertension and was on medication for 2 to 3 years, which pre-existed the policy and was not declared when the policy was taken on 09.04.2019. In fact, the Insurance Company has relied upon Exhibit R1(e) discharge summary of Lilavati Hospital and Research Centre, Mumbai dated 23.06.2019 to contend that there was material suppression of preexisting disease of hypertension at the time of issuance of policy. 16. On a perusal of Exhibit R1(e), it is evident that on diagnosis, three aspects were found out. It reads thus: “(i) EXTENSIVE SUBARACHNOID HAEMORRHAGE (CLIPPING OF ACOM ANEURYSM DONE); (ii) ASPIRATION PNEUMONITIS; (iii) HYPERTENSION. C/O: CONVULSIONS WITH RIGHT SIDE WEAKNESS SINCE 10 JUNE EVENING.” 17. It is also evident that on discussion, the following facts were noted: “PATIENT WAS ADMITTED WITH ABOVE COMPLAINTS TO LHRC, CT BRAIN DONE SHOWING EXTENSIVE SAH IN F-T-P AND LT FRONTAL REGION PROBABLE ACOM ANNEURYSM AND INTRAVENTRICULAR EXTENSION OF HAEMORRHAGE. PATIENT UNDERWENT DSA AND LEFT LARGE CRANIOTOMY DONE FOR ACOM ANNUERYSM, CLIPPING AND EVD INSERTION DONE BY DRAIN IN DANGE OPERATIVE DIAGNOSIS WAS RUPTERED ACCOM +1. AFTER THAT PATIENT WAS ON VENTILATOR, INTUBATED AND SEDATED REPEAT CT BRAIN SHOWING SAH OF RT F-T-P REGION REDUCED COMPARED TO PREVIOUS SCAN IVH SEEN TO BE REDUCED IN DENSITY. TRACHEOSTOMY DONE I/V/O PROLONGED VENTILATION ON 14TH JUNE BY DR. KAMAL PARSHURAM AND DR. CRIS D SOUZA. REFERENCE WAS GIVEN TO DR. SANJEEV MEHTA FOR ASPIRATION PNEUMONIA AND ADVICE WAS FOLLOWED. PATIENT WAS ON SUPPORTIVE TREATMENT/STATINS/ANTIEPILEPTICS/HGHER ANTIBIOTICS/ANTIHYPERTENSIVES AND ANTIPYRETIC FOR FEVER EPISODES PATIENT WAS TAKEN OFF VENTILATOR ON 19TH JUNE AND REVENTILATED ON 22ND AFTERNOON I/V/O LABOURED BREATHING. PATIENT GRADUALLY IMPROVED. RELATIVES WANTED TO SHIFT THE PATIENT TO OTHER CENTRE AND HENCE REQUESTED FOR DISCHARGE.” 18. Thereafter, the doctor had made a final diagnosis and has arrived at the following conclusions: “ICD Code ICD Description 160 Subarachnoid haemorrhage 167.1 Cerebral aneurysm, nonruptured 110 Essential (primary) hypertension” 19. From Ext. R1(e), it is clear that late Jesudas was discharged from the hospital with the advice of continued treatment. However, in my considered opinion, there is no diagnosis at all in the discharge summary to show that late Jesudas had undergone treatment for hypertension or he had a history of the said disease. From Ext. R1(e), it is clear that late Jesudas was discharged from the hospital with the advice of continued treatment. However, in my considered opinion, there is no diagnosis at all in the discharge summary to show that late Jesudas had undergone treatment for hypertension or he had a history of the said disease. It is also equally important to note that even according to the first respondent Insurance Company, the medical examination of late Jesudas was conducted prior to the issuance of the policy. In the absence of any medical records and a convincing proof that Sri. Jesudas knew that he had hypertension or that he had undergone treatment for hypertension, it could never be said that late Jesudas wilfully suppressed the pre-existing disease of hypertension. 20. In my considered opinion, without the knowledge of a pre-existing disease, it cannot be said that a material fact was suppressed at the time of taking a policy, so as to non-suit a claim of the legal heir of the deceased on the basis of a specific exclusion clause contained in the policy. Clause 7(1) dealing with ‘disclosure to information norm’, reads thus: “7(1) Disclosure to Information Norm If any untrue or incorrect statements are made or there has been a misrepresentation, mis-description or non-disclosure of any material particulars or any material information having been withheld or if a claim is fraudulently made or any fraudulent means or devices are used by the Policyholder or the Insured Person or any one acting on his/their behalf, the Company shall have no liability to make payment of any Claims and the premium paid shall be forfeited ab initioto the Company.” 21. On an analysis of the specific exclusion clause, it is clear that the company is entitled to repudiate the claim on account of the misrepresentation, misdiscrepancy, or non-disclosure of the material particulars or having withheld any material information etc. Merely because the Insurance Company had raised a case that on diagnosis, there is a history of pre-existing disease of hypertension, that cannot be attributed as a wilful suppression, if the insured had never been aware about such disease or had not undertaken the treatment for the said disease. 22. The Black’s Law Dictionary defines the word ‘suppress’ to mean “to put a stop to, put down, or prohibit; to prevent (something) from being seen, heard, known, or discussed”. 22. The Black’s Law Dictionary defines the word ‘suppress’ to mean “to put a stop to, put down, or prohibit; to prevent (something) from being seen, heard, known, or discussed”. Therefore, it can be seen that without the knowledge of a fact, one can never be said to have suppressed a fact. 23. Anyway, there is no proof at all for the pre-existence of such a disease, and in my view, such a defense was taken by the insurer without any basis and foundation. I am also at a loss to understand how the ombudsman even entered into a finding that the insured had a history of the disease and it was suppressed relying upon the discharge summary of the Lilavati Hospital, when such a finding is not contained in the same. The insured was liable to disclose only an existing disease at the time of the issuance of the policy. When the petitioner had taken a definite plea that there was no suppression of any material fact, it was incumbent upon the insurer to prove the same by adducing reliable and cogent evidence; but no such effort was made by the insurer. This I say because, it is a negative proof, and the onus of the burden shifted immediately from the petitioner to the insurer, when the petitioner denied such a stand adopted by the insurer. 24. Considering so, I have no hesitation to hold that the repudiation of the claim by the Insurance Company merely assigning the reason of suppression of pre-existing disease, can never be sustained under law. The Insurance Ombudsman has merely relied upon the contentions advanced by the Insurance Company, rather than considering the contentions advanced by the petitioner that there was no suppression, since the insured did not undergo treatment for the pre-existing disease of hypertension or that the insured did not have any knowledge with respect to such a disease. 25. On a consideration of the order passed by the Ombudsman, I am of the view that the Insurance Ombudsman failed to consider the material aspects in a manner known to law and taking into account the pros and cons and the circumstances that led to the issuance of the policy by the Insurance Company, after conducting a medical examination on the insured. I am also of the view that if the insured had a pre-existing disease of hypertension, the doctor could have detected it at the time of medical examination for issuance of the policy, irrespective of any disclosure by the insured. 26. In my considered opinion, the repudiation of the policy was made by the Insurance Company on a baseless assumption that there was a pre-existing disease of hypertension to the insured. It is common knowledge that before the issuance of the policy, a threadbare inquiry must have been conducted by the Insurance Company on receipt of the proposal from a person, and the medical examination must have been conducted thereafter only. 27. From the facts and circumstances and the documents produced by the petitioner, including the discharge summary, it is quite clear and evident that it was due to a sudden illness, the insured was admitted in the hospital and diagnosed that he suffered brain hemorrhage. These aspects are quite clear and evident from Exhibit R1(e) discharge summary issued by the Lilavati Hospital and Research Centre, Mumbai. Therefore I am of the considered opinion that it was being satisfied with the medical examination conducted and the materials furnished by the insured that the Insurance Company had issued the policy. 28. The Insurance Company cannot later turn around and repudiate the claim stating that there was suppression of preexisting disease unless established by a proof otherwise. Since the award of the Ombudsman and the repudiation of the claim by the insurer are patently unfair, illegal, arbitrary, irrational, and was passed without taking into account the basic background requirements for analyzing the claim raised by the policyholder, interference is required to the repudiation of the claim by the Insurance Company as well as the award of the Ombudsman, exercising the power of discretion conferred under Article 226 of the Constitution of India. 29. Accordingly the said order and award respectively are quashed. Consequently, there will be a direction to the first respondent Insurance Company to consider the claim raised by the petitioner taking into account all the attendant and supportive documents and release the amount to the petitioner at the earliest and at any rate within one month from the date of receipt of a copy of this judgment. This writ petition is allowed as above.