Before the District Forum: Kurnool
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
Monday the 10th day of January, 2005
C.D.No.17/2004
A.Ramadas, S/o. Pedda Thimmaiah,
Seesamgunthala (V), Dhone (M), Kurnool Dist. . . .
Complainant represented by his counsel
Sri C. Ramana Reddy.
-Vs-
1. The Branch Manager,
LIC of India, Dhone.
2. The Divisional Manager,
LIC of India, Cuddapah.
. . . Opposite party No.1&2 represented
By his counsel Sri G.MD. Habeebur Rahiman
O R D E R
(As per Smt C. Preethi Member)
1. This CD complaint of the complainant is filed under section 12 of C.P. Act, 1886, seeking a direction on the opposite parties to pay assured amount of Rs.50,000/- with all benefits and interest @ 18% per annum from the date of death of the insured, Rs.10,000/- as compensation for mental agony, cost of the case and any such other relief or reliefs which the complainant is entitled in the circumstances of the case.
2 The brief facts of the complainant case are that the complainant is the father and nominee of the insured A. Madhu Sivaiah, who died on 18.9.2001 due to jaundice, during his life time he insured his life with opposite parties under policy bearing No. 652427263 for Rs.50,000/- on 10.3.2000. On the demise of the deceased the nominee made a claim with opposite parties for assured amount with all benefits by submitting all necessary relevant documents. But the opposite parties through its communication dt 28.1.2003 repudiated the claim of the complainant stating that
the insured had suffered from kidney problem for the post two and half year prior to the date of proposal for obtaining the said policy and suppressed the said facts of his health condition with the opposite parties and took the said policy. The complainant further submits that the assured never suffered with any decease much less kidney problem and never took treatment with any medical man and the insured died in his village due to jaundice. Hence, the repudiation of claim by the opposite parties is only to avoid payment of assured amount. The said conduct of opposite parties in repudiating the claim of the complainant is without proper reason is amounting to deficiency of service to the complainant. Therefore, the complainant is constrained to file this complainant seeking redressal before the Forum.
3. The complainant in support of his case field following document Viz (1) repudiation letter dt 28.1.2003 of the opposite party No.2 to the complainant, besides to his sworn affidavit in reiteration of his complaint avernemnts and the above document is marked as Ex A.1 for its appreciation in this case and caused interrogatories to the third party P. Chandra Mohan Rao.
4. In pursuance to the notice of this Forum as to this case the complainant, the opposite parties appeared through their standing counsel and contested the case. The opposite party No.2 filed written version and opposite party No.1 adopted the written version of opposite party No.2.
5. The written version of opposite parties questions the maintainability of the complainant’s case either in law or on facts. It admits the deceased A. Madhusivaiah has taken an insurance policy bearing No. 652427263 covering his risk for Rs.50,000/- and nominated his father A. Ramadas as his nominee. While the policy was inforce the nominee intimated the death of A. Madhusivaiah and sought assured amount, as the claim has arisen within two years from the date of commencement of policy i.e 28.3.2000 investigation was conducted, which revealed that the deceased has underwent kidney biopsy test on 21.10.1998 with history of Nephorotic Syndrome for past 8 months. It further submits that the deceased was admitted to Gandhi Hospital, Secundrabad on 7.3.2001 and underwent Kidney transplantation vide case sheet No.6684 of the said hospital dt 13.3.2001, prior to that the deceased was admitted to Puttaparthi, Hospital in 1998 and also taken treatment in 1999 for kidney problem, therefore, the deceased has under taken treatment since last 4 years and had generalised Odema for which he has taken treatment from local doctors and Puttaparthi Institute, the above deceases were not disclosed by the deceased in his proposal form, which he was suffering prior to the date of proposal and answered negatively to all questions in the proposal form and gave declaration that he is hale and healthy on the date of proposal, so, the untrue statements made by the deceased in the proposal and in the personal statement regarding his health, the contract was declared null and void by opposite parties in their speaking order dt 28.1.2003. Therefore, the repudiation of the claim by the opposite parties was made on justifiable grounds and after application of mind basing on evidence, so the complainant is not entitled to the assured amount of the deceased A. Madhu Sivaiah and seeks for the dismissal of complaint with costs.
6. The opposite parties in substantiation of his case filed the following documents Viz (1) proposal form of deceased A. Sivaiah (2) policy bond bearing no. 652427263 dt 28.3.2000 of the deceased (3) repudiation letter dt 28.1.2003 of the opposite party to the complainant and (4) letter dt 30.9.2004 of Sri Satya Sai Institute of Higher Medical Science to Sri P. Chandra Mohan Rao, Asst Branch Manager, LIC of India Dhramavaram, besides to the sworn affidavit of opposite party No.2 in reiteration of its written version as defence and the above documents are marked as Ex B.1 to B.4 for its appreciation in this case and the third party suitable replied to the interrogatories caused by the complainant.
7. Hence the point for consideration is to what relief the complainant is remaining entitled alleging deficiency of service and deficiency conduct on part of opposite parties?:-
8. It is not in dispute that the deceased A.Madhusivaiath has obtain an LIC policy bearing No. 652427263 for Rs.50,000/- on 10.3.2000 and nominated his father A.Ramadas as his nominee. It is also not in dispute that the deceased A.Madhusivaiah died on 18.9.2001 at his village due to jaundice.
9. The main contention of the opposite parties is that the complainant was sufferring form kidney problem prior to the date of proposal for obtain the said policy. The learned counsel for opposite parties has very forcefully contended that while submitting the proposal form for entering into contract of insurance, the deceased has concealed the said material facts from the opposite parties about his suffering from ailment of kidney problem and thereafter, had kidney transplantation and therefore the opposite parties are absolutely justified in repudiating the claim of the complainant. The opposite parties in support of its case relied on Ex B.1 to B.4, the Ex B.1 is the proposal form of the deceased A.Madhusivaiah dt 10.3.2000 for obtaining the said policy, the Ex B.2 is the policy bond bearing No. 652427263 for covering the risk of the deceased for Rs.50,000/- and the date of commencement of the said policy is from 28.3.2000 and nominated A.Ramdas as his nominee, the Ex B.3 is the repudiation letter dt 28.1.2003 of opposite party No.1 to the complainant repudiating the claim of the complainant stating that the deceased had withheld correct information regarding his health at the time of effecting the assurance with us and answered all the questions regarding his health condition as negatively. It further envisages that it had indisputable proof to show that about two and half years before the proposal for the above policy the deceased had suffered from kidney problem and took treatment with a medical man, as it is evidence from the above that the deceased made incorrect statement and with held correct information regarding his health the opposite parties are not liable to pay the assured amount under the above said policy. The Ex B.4 is the letter dt 3.9.2004 of Sri Satya Sai Institute of Higher medical Sciences to P. Chandra Mohan Rao, Asst. Branch Manager, LIC of India. It envisages a patient by name A.Madhu S/o A.Ramadas aged 22 years was admitted in their hospital and was diagnosed as a case of Nephrotic syndrome and was admitted in the department of Nephrology/ Urology on 25.4.1998. After taking the treatment the said patient was discharge on 2.5.1998. Subsequently, the said patient was again admitted on 12.10.1998 and Ultra Sound Guided Renal Biopsy was done under L.A on lower pole of left Kidney on 15.10.1998 and was discharge on 21.10.1998. The contents of Ex B.4 relied by the opposite parties does not inspire any confidence about that contents of the document which can be acted upon, as in support of the said Ex B.4 no doctor has been examined nor any affidavit of any medical expert has been produced to show that the deceased was suffering from kidney problem or affidavit of any doctor from whom the opposite parties allege, the complainant had taken treatment is filed, to substantiate their allegations made in the written version. No doubt it has been stated in Ex B.4 that the A.Madhu was admitted in department of Nephrology/ Urology of Sri Satha Sai Institute of Higher Medical Sciences for treatment, but no substantiation material is placed on record to support the said Ex B.4, which could substantiation that the complainant suffering from kidney problem, no documents or direct evidence showing that the complainant actually taken treatment for any decease have been put on record by the opposite parties. In absence of any documents or any evidence produced on record, primary or secondary regarding the aliment of complainant before the submission of proposal form, it cannot be said that the opposite parties has proved on record that he was suffering from such aliment prior to submitting proposal form. Therefore, the opposite parties miserablely failed to prove the case by placing any original documents or by placing any certified copies of its original, which has not been done. Hence, the contends of Ex B.4 cannot be looked into nor it can inspire any confidence to act upon.
10. There is no dispute between the parties that no affidavit of the doctor who is alleged to have treated the complainant in Gandhi Hospital, Secundrabad and Sri Satha Sai Institute of Higher Medical Sciences is filed, the doctor was neither examined nor his affidavit has been brought on record, unless expert evidence of the doctor, who has treatment the complainant is produced such evidence cannot be relied upon and form the basis of a finding that the deceased was suffering from any aliment before submitting proposal form. Merely filing Ex B.4 letter of Sri Satha Sai Institute Higher Medical Science does not mean that the contents there of are necessarily true, no documents is produced by the opposite parties about the prior existence of kidney ailment by the complainant, mere assertion or oral testimony in respect of kidney aliment, prior to taking policy neither inspire any confidence nor can be acted up on and relied upon, it is needless to observe that the burden is on the opposite parties to establish that there was suppression of material facts and the complainant concealed the said material facts before taking the policy or at the time of submitting proposal form. The opposite parties did not adduced any evidence to discharge this burden
11. Having regard to over all consideration, there is no hesitation to hold the opposite parties have miserable failed to substantiate that the complainant suppressed material facts about his health condition before taking the policy from the opposite parties. Therefore, in the said circumstances the repudiation of claim by the opposite parties is wholly arbitrary, unreasonable and unjust and amounts to deficiency of service on their part.
12. In the light of the above discussion and material on record not substantiating any suppression of health condition by the deceased, while taking the said policy and further there appears any substance in the allegations made by the opposite parties and the complainant is remaining entitled to the insured amount.
13. In the result, the complaint is allowed, directing the opposite parties to pay assured amount of Rs.50,000/- with 9% interest per annum from the date of demise of the deceased till realization, along with Rs.5,000/- as costs of this case, within a
month from the date of receipt of this order.
Dictated to the Stenographer, Typed to the dictation corrected by us, pronounced in the open court this the 10th day January, 2005.
PRESIDENT
MEMBER MEMBER
