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illness issues will be a ground for the insurer to cancel the policy and disown liability. When
information on a specific aspect is asked for in the proposal form, the prospective assured is
under a solemn obligation to make a true and full disclosure of the information on the subject
that is within his knowledge. Of course, the obligation to disclose extends only to facts that
are known to the applicant and not to what he ought to have known. The opinion of the
assured as to materiality of that knowledge is of no relevance.7 On the subject of medical
insurance, the most contested issues are whether there had been any concealment of illness at
the commencement of policy. Neither the medical nor the legal profession has distinguished
itself in two decades of malpractice wars. Trial lawyers have fought to preserve a flawed status
quo, while doctors have done too little to improve professional discipline or eliminate the
underlying causes of medical malpractice. For doctors and lawyers, for the administration and
legislature, the time has come to think about devising something better, not just for doctors,
but for patients as well.8
As already noted, any non-disclosure of material fact relating to medical history of a person
will allow the insurer to deny liability. In Satwant Kaur Sandhu v New India Assurance Co Ltd,9
the fact that the person who availed of a mediclaim policy was suffering from diabetes as well
as chronic renal failure, and was on regular haemodialysis were obvious instances of material
facts, the non-disclosure of which was found to justify the insurer to repudiate the claim under
the policy by the representative of the deceased assured. Even if an answer is merely in accurate,
the insurer will be entitled to repudiate their liability because there is clear presumption that
any information sought for in the proposal form is material for the purpose of entering into
a contract of insurance. In Bijoy Kumar Chaturvedi v United India Insurance Co Ltd,10 the fact
that insurance company produced the expert opinion of two specialist doctors of their own
panel was treated as not material, and the court reasoned that unless their opinion is rebutted
by the opinion obtained from another set of experts, it would be unfair to ignore the evidence
specially when they are corroborated by other factors. In this case, the CT Scan report showed
that ‘the picture is suggestive of metastatic adenocarcinoma with papillary’(sic). Further it
went on to state that ‘metastasis from ovarian malignant tumour may be considered’. After
investigation, the ailment was diagnosed ‘as a case of metastatic CA front at area of brain,
left chest and right ovary as per the discharge summary of the nursing home’ (sic). Metastatic
refers to the transfer of a disease from its primary site to a distant part of the body. Therefore,
if the cancer developed in the ovary, it would have spread to the other organs and subsequently
to the lungs. This obviously would have taken some time and must have given some signs or
symptoms beforehand. The National Commission rejected the medical literature suggesting
that 90 per cent of the screened patients who developed lung cancer are asymptomatic as
not relevant, as, in the case in hand, the cancer had originated in the ovary and appeared to
have spread to the lungs subsequently. The commission observed that it could not be said to
be a sheer coincidence that the mother of the complainant fell ill within a month from the
incorporation of her name in the mediclaim policy. It also said that good faith is an integral
part of a contract of insurance and upheld the conclusion of the state commission that it was
a case of suppression of a pre-existing disease.

	7.	Joel v Law Union & Crown Insurance Co, (1908) 2 K 863 (CA), referred to in Satwant Kaur Sandhu v New India
Assurance Co Ltd, (2009) 8 SCC 316.
	 8.	 Kenneth Jost, ‘Still Warring Over Medical Malpractice: Time for Something Better’, ABAJ 79 1993: 68.
	9.	Satwant Kaur Sandhu v New India Assurance Co Ltd, (2009) 8 SCC 316.
	10.	 Bijoy Kumar Chaturvedi v United India Insurance Co Ltd, (2009) 2 CPJ 306.

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