Before the District Forum: Kurnool
Present: Sri K.V.H. Prasad, B.A., LL.B., President
And
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B.Com., LL.B., Member
Tuesday the 29th day of March, 2005
C.D.NO. 61/2004
Smt. Md. Ramiza Bee,
W/o. Late Md. Malik Basha,
R/o H.No. 40/277,
Bandimetta,
Kurnool. . . . Complainant represented by his
counsel Sri M. Shivaji Rao, Advocate.
-Vs-
1. The Senior Divisional Manager,
The L.I.C of India,
Rajamundry.
2. The Zonal Manager,
LIC of India, South Central Zonal Office,
Saifabad,
Hyderabad.
3 .The Divisional Manager,
L.I.C of India,
Divisional Office,
Cuddapah.
4. The Branch Manager,
LIC of India,
Kurnool. . . . Opposite parties 1, 2 ,3 & 4 represented by
their counsel Sri L. Hariharanatha Reddy.
O R D E R
(As per Smt C.Preethi, Member)
1. This CD complaint of the complainant is filed under section 11& 12 of C.P. Act, 1986, seeking a direction on the opposite party to pay policy amount of Rs.1,00,000/- with 24% interest per annum , Rs. 25,000/- as compensation for mental agony, costs of the complaint and any other relief or reliefs which the complainant in the circumstances of the case.
2. The brief facts of the complainant’s case is that the complainant W/o deceased Md. Malik Basha, who insured his life with opposite parties on 28.11.1999 for Rs. 1,00,000/- covering his life risk vide policy bearing No. 801555948 from opposite party No.1. The complainant’s husband paid Rs. 712/- as monthly premium from the date of commencement of the policy till his death. The complainant’s husband has earlier policies bearing No.s 650040981 for Rs. 20,000/- dt 12.3.1982 and 651417438 for Rs. 20,000.0 dt 28.12.1992.
The deceased complainant’s husband was hale and healthy at the time of entering into the policy with opposite parties, after the sudden death of policy holder on 15.6.2001, the opposite parties paid the policy amounts of first two polices and repudiated the last policy on the ground that the deceased did not disclose the material facts about his health in the proposal form and that the deceased was on leave on several occasions. But the complainant submits that her husband was on leave co- inside every year in the same time, during that period the death anniversary of the deceased father is performed at his native place. Therefore, he used to apply leaves every year for that purpose only. Immediately after repudiation of claim by opposite party No.1 on 16.10.2002 the complainant made a representation to opposite parties for reconsideration, but neither policy amount was paid to the complainant nor there was any reply. The repudiation of claim by the opposite parties for the last policy was held deficiency of service to the complainant
3. In substantiation of her case the complainant filed the following documents Viz (1) repudiation letter dt 16.10.2002 of the opposite parties to the complainant (2 ) notice of complainant dt Nil to Zonal Manager (3) reply dt 2.1.2002 of Zonal Manager to the complainant and (4) letter dt 18.1.2001 of Branch Manager to the complainant, besides to the sworn affidavit of the complainant in reiteration of her complaint averments and the above documents are marked as Ex A.1 to A.4 for its appreciation in this case. The complainant also relied on the third party affidavit of Syed Ahmed and caused interrogatories to opposite party No.3 and the third party replied to the interrogatories caused by the opposite party No.3.
4. In pursuance in to notice of this Forum as to this case of the complainant the opposite parties appeared through their standing counsel and contested the case. The opposite party No.3 filed written version and opposite party No.1, 2&4 filed adoption memo adopting the written version of opposite party No.3.
5. The written version of opposite parties questions the maintainability of the complainant’s case either in Law or on facts. It denies the entire allegation made in the complaint averments. It admits the deceased Md Malik Basha has taking a policy for Rs. 1,00,000/- under salary savings scheme. The policy holder declared himself to be quite healthy as to his replies to question Nos 11a to j in the proposal form and in column No.4 Medical examiner put forth by the Doctor on 28.11.1999, the deceased was not suffering from any illness or ailments and was not hospitalized and accordingly policy was issued for Rs. 1,00,000/-. The complainant/nominee informed the death of the policy holder on 15.6.2001 due to Jaundice and preferred a claim as the claim aroused within two years from the date of commencement of the policy investigation was conducted.
6. The claim forms B and B1 given by Dr B.Ramachandra Reddy, of Government General Hospital, Kurnool stated that the policy holder was admitted into the said Hospital on 26.4.2002 with symptoms of Jaundice. The certificate given by Dr Y.Sudrasana Murthy, Kurnool stating the policy holder under gone treatment for Fever and iUTI from 3.2.1998 to 12.2.1998 and the same is not disclosed by the policy holder in the proposal form. The notarized affidavit in the Form No 5152 given by Dr Ahmed Ali, Kurnool stating that the policy holder has taken treatment for Jaundice from 3.2.1997 to 26.2.1997. The policy holder did not disclosed the details of the above sickness in the proposal form and declared himself as hale and healthy, the above non disclosure of his previous illhealth made the contract of insurance null and void. Therefore, the repudiation of policy was made on justifiable grounds and after due application of mind and on basing on evidence and seeks for the dismissal of complaint with costs.
7. In substantiation of its case the opposite parties filed the following documents Viz (1) Proposal for Insurance on life of Mohammed Malik Basha (2) Policy bearing No. 801555948 of deceased Mohammed Malik Basha (3) Medical Attendent’s certificate 24.9.2001 of deceased (4) certificate of Hospital Treatment dt 24.9.2001 of deceased (5) certificate by Employer (6) certificate given by Y.Sudarshan Murthy dt 12.9.2002 (7) questionnaire completed by a Medical practitioner i.e Dr M.Ahmed Ali, who had treated the deceased and (8) repudiation letter dt 16.10.2002 of opposite parties to the complainant, besides to the sworn affidavit of the opposite party No.3 in reiteration of its written version as defence and the above documents are marked as Ex. B.1 to B.8 for appreciation in this case. The opposite party also relied on the third party affidavit and deposition of Dr. Y. Sudarshana Murthy. The opposite party No.3 replied to the interrogatories caused by the complainant and caused interrogatories to the third party.
8. Hence, the point for consideration is to what relief the complainant is entitled to any reliefs as alleged in her complaint avernemnts:-
9. The undisputed facts are that the husband of complainant Md. Malik Basha, during his life time has taken three policies from the LIC and nominated the complainant as his nominee. The opposite party paid policy amount under first two policies and repudiated the third/last policy on 16.10.2002 vide Ex A.1/B.8. The said repudiation was on the basis that the policy holder gave false answers to certain questions relating to his health in the proposal form vide Ex B.1 for assurance in respect of last policy, and the policy holder withheld correct information regarding his health at the time of effecting of insurance as the policy holder suffered from Jaundice and had taken treatment from Dr Ahmed Ali from 3.2.1991 to 26.2.1997 and also the policy holder taken treatment for fever and iUTI from Dr Y. Sudarshna Murthy from 3.2.1998 to 12.2.1998 and the said facts are not disclosed in the proposal form and that he gave false answers stating that he was not absent from his place of work on grounds of health during last five years and during the last five years he did not consult a medical practitioner for any ailment requiring treatment for more than a week and he had never been admitted in any hospital on nursing home for general checkup, observation, treatment or operation.
10. The opposite parties referred to Ex B.3 Medical Attendants Certificate dt 24.9.2001 obtained by the opposite parties from the doctor who attended the deceased policy holder in the hospital before to his death. Column No.4 A provides primary cause of death as “Jaundice “ secondary cause as Cirrhosis of lever and it is also recorded against column No.4 (1) since 4 1/2 months. In the certificate of Hospital Treatment in Ex B.4 dt 24.9.2001 against the column 5 (a) it is recorded as yellowish colour of eyes from 3 months, loss of appetite from one month. These two exhibits read together says the treatment taken by the deceased policy holder was from 26.4.2001 to 20.5.2001 i.e after taking of the said policy. The policy in question was issued to the policy holder on 28.11.1999 vide policy bearing No. 801555948 in Ex B.2 and the policy holder signed the proposal form in Ex A.1, on 28.11.1999 itself. Therefore, the opposite parties cannot rely on the above said exhibits as these treatments are taken after issuance of the said policy to the deceased policy holder.
11. The Ex B.6 is the certificate given by Dr Y. Sudarshan Murthy on 12.9.2002 to the Asst. Branch Manager, LIC, Kurnool, it envisages the issuance of sick certificates to policy holder after the treatment undergone by the policy holder for viral fever, URTI from 3.7.1998 to 12.2.1998, 7.2.2000 to 22.2.2000 and 25.5.2000 to 30.5.2000. The opposite parties got the said doctor examined as RW1. The said RW1 in his evidence and in his sworn affidavit avernments stated that he know the deceased Md. Malik Basha, and that he gave treatment to the said deceased on three occasions from 3.2.1998 to 12.2.1998 for fever and IUTI 7.2.2000 to 22.2.2000 for fever and IUTI and from 25.4.2000 to 30.5.2000 for Viral fever. The opposite parties allege that the deceased did not disclose these facts in the proposal form before taking the said policy. The deceases as stated by the said doctor in his evidence as being suffered by the deceased policy holder, even other wise admitted, the said deceases were not of such a material deceases, therefore, this was not a material fact, which was to be disclosed in the proposal form. When the said doctor treated the policy holder, patient was clinically normal and at that time, he was suffering from Fever and Urinary Track Infection. For every human being fever is something which is an illness which occurs now and then, Back pain, Muscular pain and viral fevers are common ailments. Therefore, one cannot expect a person to make mention of these entire instance in the proposal form. Therefore, taking the broad aspects of this case, the only reason for repudiation is that, it was an early claim and that the insured had suppressed material facts of his health in the proposal form. Only those facts, which are very material for that only the policy holder can be held guilty, if he had suppressed it. Even otherwise, there is no nexus to the cause of death of the deceased with alleged treatments. Therefore, the claim could not have been repudiated on that ground.
12. The Ex B.7 is the Form 5152 completed by a medical practioner who treated the deceased, it envisages that the policy holder had visited Dr Ahmed Ali from 3.2.1997 to 26.2.1997, as he was suffering from jaundice for past three months and the said doctor treated him for the above mentioned period. The Ex B.7 relied by the opposite parties does not inspire any confidence nor can be acted upon. No doubt it had been stated by the doctor that policy holder had taken treatment for jaundice from 3.2.1997 to 26.2.1997 i.e two and half years before to the issuance of said policy and even the said Ex B.7 is not supported by any affidavit of the said doctor nor by any documents, what so ever, on the record in the file, which could substantiate that the policy holder was suffering from jaundice at the time of submission of proposal form. No documents in this content, what so ever, have been put on record by the opposite parties. In the absence of any documentary evidence produced on record by the opposite parties, primary or secondary regarding the treatment of policy holder in the year 1997 from Dr, Ahmed Ali, it cannot be said that opposite parties have proved on record that the policy holder was suffering from Jaundice. More over, the evidence of RW1 says that he has not treated the said policy holder for jaundice on three occasions when the policy holder visited.
13. The other reason for repudiation of complainant’s claim is that deceased policy holder was under frequent medical leaves which is apparent vide Ex A.1, the complainant’s counsel rightly repelled the said contentions by placing the judgement of Uttranchal State Commission, between LIC of India Vs Mrs .Laxmi Karnataka, reported in II (2004) CPJ Pg 582, where in, it was held that mere taking of medical leaves is no ground to presume that the insured suffering from appendicitis, company has to prove the fact of actual illness and directed the company to pay policy amount to the complainant.
14. In the present case also the policy holder has taken medical leaves, as it is most common that employees often take leaves on medical grounds, when no other leave is available to him. Even otherwise, an employee gets one full year medical leave through out his service and also for the purpose to consume these leaves employees take leave on medical grounds on and off. The policy holder was the resident of Kurnool and he was working at Rajamundry, so to visit his native place he often used to take medical leaves, which cannot be such a ground to presume that the insured was actually suffering from any decease.
15. The complainant also relied on the judgement of National Commission, between Mrs S.Abitha Vs LIC of India, reported in 2003 CTJ Pg 468, where in, it was held that there is no material brought on record to infer that there is an intentional and fraudulent suppression of facts which would attract the provision of S-45 of the Insurance Act and the other judgement the complainant relied is of Andhra Pradesh State Consumer Disputes Redressal Commission, between Branch Manager, LIC of India, Cuddapah Vs Mrs Parvathi, reported in 1999 (2) ALD Pg 93, wherein, it was held that mere production of doctor certificates enclosed with the application for leave on medical grounds without examining the doctor does not prove that the insured was suffering from decease and that they have been suppressed by the insured.
16. Therefore, following the above mentioned judgements, the burden is upon the opposite parties to prove that there is suppression of material facts and the opposite parties have failed miserablely to prove that there was really any suppression and that the policy holder was aware that he was suffering from any serious illness on the date when he sent the proposal suppressing the same and submitted the proposal. Therefore the certificates issued vide Ex B.3, B.4, B.5, B.6 and B.7 does not help to establish the contention that there has been suppression of material particulars regarding the deceased policy holder’s health conditions. If at all, it shows the policy holder under went treatment for viral fever and Urinary track infection, which is a common thing in these days of stress and strain. Therefore, one cannot attach any significance to it in the sence that it amounts to suppression of material particulars regarding his health condition. Therefore, the repudiation of the claim of complainant is not proper as the opposite parties failed to establish the reasons for repudiation as stated there in.
17. In the result, the complaint is allowed directing the opposite parties jointly and severally to pay to the complainant the policy amount of Rs.1,00,000/- with 12% interest from the date of demise of the policy holder till realization along with Rs.5,000/- as costs, within a month of receipt of this order.
Dictated to the Stenographer, Typed to the dictation corrected by us, Pronounced in the Open Court this the 29th day of March, 2005.
Sd/-
PRESIDENT
Sd/- Sd/-
MEMBER MEMBER
