JUDGMENT : [WP(C) Nos.15775/2019 and 33986/2019] These two writ petitions are filed by Insurance Companies engaged in the business of Health/Allied Insurance seeking to challenge orders issued by the Insurance Ombudsman, Kochi, in favour of the party respondents in these writ petitions. 2. The petitioner in W.P(C) No.15775 of 2019 had extended an insurance coverage to the 1 st respondent therein pursuant to Ext.P1 policy dated 11.08.2017. The validity of the afore insurance was till 10.08.2018. The 1 st respondent obtained treatments at Najath Hospital, Aluva and Sunrise Hospital, Kakkanad, from 12.09.2017 and was discharged on 30.09.2017. He submitted two separate claims for hospitalization at Najath Hospital and Sunrise Hospital. The petitioner relied on the discharge card/summary from the respective hospitals and referred to the terms of the insurance proposal submitted by the 1 st respondent and by Exts.P6 and P7 communications, repudiated the claims since, according to it, the treatment was for “pre-existing” disease. The 1 st respondent, in such circumstances, submitted a complaint before the Insurance Ombudsman and the Ombudsman by Ext.P11 dated 29.03.2019 decided the matter in favour of the 1 st respondent holding that the petitioner has only relied on a “passing remark in the discharge summary” for repudiating the claim which according to the Ombudsman was not supported by any medical evidence. In the light of the afore, the petitioner was directed to pay Rs.1,77,000/- to the 1 st respondent herein. 3. In W.P(C)No.33986 of 2019, the 2nd respondent’s wife, availed a Travel Care Policy for the period from 18.07.2016 to 20.11.2016. On the basis of the afore, the insured went abroad. While she was in London, she was admitted to a hospital on 23.10.2016 for treatment and she passed away on 29.10.2016, as evidenced by Ext.P2 Death Certificate and Ext.P3 post-mortem report. The husband - 2 nd respondent - raised a claim before the petitioner on the basis of the Travel Care Policy obtained by the wife. The petitioner, by Ext.P5, repudiated the claim, placing reliance on the past medical history of the deceased. In such circumstances, the 2 nd respondent presented a complaint before the Insurance Ombudsman and by Ext.P8, the Ombudsman decided the issue in favour of the 2 nd respondent holding that the “insured died due to an accidental injury by a fall”. 4. It is in the afore circumstances that the respective petitioners have filed the captioned writ petitions. 5. In such circumstances, the 2 nd respondent presented a complaint before the Insurance Ombudsman and by Ext.P8, the Ombudsman decided the issue in favour of the 2 nd respondent holding that the “insured died due to an accidental injury by a fall”. 4. It is in the afore circumstances that the respective petitioners have filed the captioned writ petitions. 5. I have heard Sri.Harish Gopinath, the learned counsel for the petitioner in W.P(C) No.15775 of 2019 and Sri.Hari Kumar G. Nair, the learned counsel for the petitioner in W.P(C) No.33986 of 2019. The respective party respondents were represented by Sri.Rajesh S.Subrahmanian and Sri.G.Biju, the learned counsel. 6. The issue arising for consideration in these writ petitions is whether the findings contained in the respective awards of the Insurance Ombudsman are sustainable or not. 7. In both cases, the Insurance Company sought to repudiate the claims on the allegation of “pre-existing” diseases, which were not disclosed while obtaining the policies. I notice that the petitioners have extended the Insurance Policies based on certain printed format policies and considerable reliance is being placed on the various clauses contained in the afore policies. 8. In this connection, I notice the judgment of the Apex Court in Manmohan Nanda v. United India Assurance Co. Ltd. and Another [ (2022) 4 SCC 582 ] That was a case where the appellant travelled abroad for attending a wedding after obtaining mediclaim policy. The policy was issued after a proper medical examination, wherein it was recorded that the appellant had Type II Diabetes alone. No other adverse medical conditions were recorded/found. In the medical examination, there are two specific queries about possible illness/disease. The doctor who examined the appellant noted the same as “normal”. The doctor further noted that there was no current illness or disease which would possibly require medical treatment during the appellant’s forthcoming trip. While she was abroad, the appellant suffered a cardiac ailment and had to undergo an Angioplasty, inserting three stents. When the appellant raised the claim, the same was repudiated. According to the Insurance Company, the appellant had Hyperlipidaemia and Diabetes, and the policy did not cover “pre-existing condition”. Though a complaint was presented under the Consumer Protection Act, the same was rejected by the authority. When the appellant raised the claim, the same was repudiated. According to the Insurance Company, the appellant had Hyperlipidaemia and Diabetes, and the policy did not cover “pre-existing condition”. Though a complaint was presented under the Consumer Protection Act, the same was rejected by the authority. The Apex Court, in the afore circumstances, found that “the law demands a higher standard of good faith in matters of insurance contract which is expressed in the legal maxim uberrimae fidei”. However, after noticing the duty to disclose the relevant materials, the Apex Court held that: “40. If a fact, although material, is one which the proposer did not and could not in the particular circumstances have been expected to know, or if its materiality would not have been apparent to a reasonable man, his failure to disclose it is not a breach of his duty.” After holding so, the Apex Court summarised the basic rules to be observed in making a proposal for insurance as under:- “43. The basic Rules to be observed in making a proposal for insurance may be summarized as follows: 43.1. A fair and reasonable construction must be put upon the language of the question which is asked, and the answer given will be similarly construed. This involves close attention to the language used in either case, as the question may be so framed that an unqualified answer amounts to an assertion by the proposer that he has knowledge of the facts and that the knowledge is being imparted. However, provided these canons are observed, accuracy in all matters of substance will suffice and misstatements or omissions in trifling and insubstantial respects will be ignored. 43.2. Carelessness is no excuse, unless the error is so obvious that no one could be regarded as misled. If the proposer puts ’no’ when he means ’yes’ it will not avail him to say it was a slip of the pen; the answer is plainly the reverse of the truth. 43.3. An answer which is literally accurate, so far as it extends, will not suffice if it is misleading by reason of what is not stated. It may be quite accurate for the proposer to state that he has made a claim previously on an insurance company, but the answer is untrue if in fact he has made more than one. 43.4. It may be quite accurate for the proposer to state that he has made a claim previously on an insurance company, but the answer is untrue if in fact he has made more than one. 43.4. Where the space for an answer is left blank, leaving the question un-answered, the reasonable inference may be that there is nothing to enter as an answer. If in fact there is something to enter as an answer, the insurers are misled in that their reasonable inference is belied. It will then be a matter of construction whether this is a mere non-disclosure, the proposer having made no positive statement at all, or whether in substance he is to be regarded as having asserted that there is in fact nothing to state. 43.5. Where an answer is unsatisfactory, as being on the face of it incomplete or inconsistent the insurers may, as reasonable men, be regarded as put on inquiry, so that if they issue a policy without any further enquiry they are assumed to have waived any further information. However, having regard to the inference mentioned in head (4) above, the mere leaving of a blank space will not normally be regarded as sufficient to put the insurers on inquiry. 43.6. A proposer may find it convenient to bracket together two or more questions and give a composite answer. There is no objection to his doing so, provided the insurers are given adequate and accurate information on all points covered by the questions. 43.7 Any answer given, however accurate and honest at the time it was written down, must be corrected if, up to the time of acceptance of the proposal, any event or circumstance supervenes to make it inaccurate or misleading. [Source: Halsbury’s Laws of England, Fourth Edition, Para 375, Vol. 25: Insurance]” The Apex Court also referred to “contra proferentem rule” in connection with the printed contracts and held that: “45. The contra proferentem rule has an ancient genesis. When words are to be construed, resulting in two alternative interpretations then, the interpretation which is against the person using or drafting the words or expressions which have given rise to the difficulty in construction, applies. This rule is often invoked while interpreting standard form contracts. Such contracts heavily comprise of forms with printed terms which are invariably used for the same kind of contracts. This rule is often invoked while interpreting standard form contracts. Such contracts heavily comprise of forms with printed terms which are invariably used for the same kind of contracts. Also, such contracts are harshly worded against individuals and not read and understood most often, resulting in grave legal implications. When such standard form contracts ordinarily contain exception clauses, they are invariably construed contra proferentem rule against the person who has drafted the same.” In the afore case, the Apex Court found that the Insurance Company issued the policy after noticing that the party had Type II Diabetes. The clauses relied on by the Insurance Company have to be read against it by applying the contra proferentem rule as otherwise, the insurance contract would become vague. Hence, the appeal preferred was allowed, directing the Insurance Company to honour the claim raised. 9. It is in the backdrop of the principles laid down in the afore judgment that the issues arising for consideration in these writ petitions are to be considered. 10. In W.P(C) No.15775 of 2019, Sri.Harish Gopinath, the learned counsel for the petitioner, relied on Ext.P12 policy wherein the term “pre-existing disease” is defined as under: “Pre-existing Disease means any Condition, ailment or injury or related condition(s) for which the insured person had signs or symptoms, and/or was diagnosed, and/or received medical advice/treatment within 48 months prior to the insured person’s first policy with any Indian insurer.” In the light of the afore, he contends that insofar as the 1 st petitioner had signs/symptoms of heart disease as seen and recorded in Ext.P4 discharge summary, the 1 st respondent is not entitled to the claim. True, Ext.P4 states that “patient was admitted for Coronary Angiogram with complaints of recent onset effort Angina Class II since one and half months” and hence, the embargo of 48 months in the definition clause referred to above may apply. However, the reference to such printed clauses in the insurance contract over which the party has no control, is not conclusive as held by the Apex Court in Manmohan Nanda (supra). 11. However, the reference to such printed clauses in the insurance contract over which the party has no control, is not conclusive as held by the Apex Court in Manmohan Nanda (supra). 11. I also take note of the judgment of the learned Single Judge of this Court in Kumud Mahendra Parekh v. National Insurance Company Ltd. , Kochi [ 2024 KHC OnLine 698 ] , wherein this Court held that when the insured had Asthma and if she had not taken any treatment in the 48 months window prior to issuance of the policy, the rejection of the claim on the basis of the past medical history is illegal and arbitrary. 12. This Court notices that when the 1st respondent was admitted to Najath Hospital, Aluva on 12.09.2017 and discharged on 30.09.2017, there is no reference to previous discomfort as suggested by Sri.Harish Gopinath. It is only in Ext.P4 discharge summary of the second hospital, such a passing remark is recorded. Assuming that the 1 st respondent had such complaints/discomfort for the last one and half months, one cannot anticipate that he is prone to have cardiac issues. The stand of the petitioner leads to a situation where if a person has “chest discomfort” as stated in Exts.P6 and P7, he cannot obtain any insurance policy. The chest discomfort can be on account of many a reason and every chest discomfort cannot be related to cardiac ailments. 13. In such circumstances, applying the dictum laid down in Manmohan Nanda (supra), the 1 st respondent could not have expected to know that he was suffering from cardiac ailment. In such circumstances, the findings contained in Ext.P11 of the Insurance Ombudsman cannot be found fault with. 14. With respect to W.P(C) No.33986 of 2019, the position seems to be diametrically opposite to the position as seen in the first case. The second respondent- insured, while filling up Ext.P1 form, declared that she was not having any “pre-existing illness/condition”. She also declared that she was under no medication. While declaring the afore, the insured also has undertaken that the policy shall become void in the event of any untrue/incorrect statement, misrepresentation, non-description or non-disclosure of any material fact. On the basis of the policy, while the insured was abroad, she is stated to have been admitted to a hospital where she underwent treatment. While declaring the afore, the insured also has undertaken that the policy shall become void in the event of any untrue/incorrect statement, misrepresentation, non-description or non-disclosure of any material fact. On the basis of the policy, while the insured was abroad, she is stated to have been admitted to a hospital where she underwent treatment. Ultimately, she passed away as seen from Ext.P2 death certificate and Ext.P3 post- mortem report. In the death certificate, in Column No.9, the cause of death is certified as (a) Subarachnoid Haemorrhage and (b) Liver Cirrhosis Secondary to Haemochromatosis. The post-mortem report is also certified by the Coroner, showing the cause of death as both the above. The petitioner has contended that the 2 nd respondent was under treatment earlier for a considerable period of time for Haemochromatosis. The fact that the 2 nd respondent had a consultation with the doctor before her foreign travel is also recorded. On the basis of the afore, the question arises as to whether the petitioner was justified in having repudiated the claim. 15. In Manmohan Nanda (supra), the Apex Court, as already noticed, had found that the insured has a duty to provide accurate answers while obtaining the insurance policy. In paragraph 43.2, the Apex Court, in its judgment, has held that “carelessness is no excuse”. On the face of the afore, it is to be noticed that the cause of death is also stated to be due to “Liver Cirrhosis Secondary to Haemochromatosis”, for which the 2nd respondent was under treatment for the last three years atleast, as certified in Ext.P4. In the light of the afore, the petitioner cannot be found fault, in repudiating the claim. 16. True, Sri.Biju, the learned counsel for the 2nd respondent, heavily relied upon the findings in Ext.P8 award of the Ombudsman that the insured died due to an accidental injury by a fall and hence, the failure to disclose the ailment, if any, cannot be fatal. However, apart from the afore observations in the award of the Ombudsman, I notice that in Ext.P2/P3, the reason for the death is stated to be different. The petitioner has a case that this is nothing but an afterthought and such a claim was never raised originally and that it was pointed out for the first time before the Ombudsman. However, apart from the afore observations in the award of the Ombudsman, I notice that in Ext.P2/P3, the reason for the death is stated to be different. The petitioner has a case that this is nothing but an afterthought and such a claim was never raised originally and that it was pointed out for the first time before the Ombudsman. Even assuming that the deceased suffered a fall which may lead to “Haemorrhage”, that is only one of the causes of death. The fact that the death was also on account of the Haemochromatosis is seen endorsed on Exts.P2 and P3. On the face of the afore, I am of the opinion that there was willful non-disclosure of the material fact as regards the pre-existing ailment in the afore case. In such circumstances, applying the dictum laid down by the Apex Court in Manmohan Nanda (supra), the repudiation of the claim appears to be correct. On the whole, these writ petitions would stand disposed of as under: i. W.P(C) No.15775 of 2019 is dismissed. ii. W.P(C) No.33986 of 2019 is allowed by setting aside Ext.P8 award of the Insurance Ombudsman, Kochi.