BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Saturday the 07th day of March, 2009
C.C.No.152/08
Between:
B.Uday Kumar, S/o.Late B.Rama Krishna Paramahamsa,
H.No.46-93-2, Sanjeeva Reddy Colony, Budhawar Pet, Kurnool-518 001. … Complainant
Versus
- The Branch Manager, SBI Life Insurance Company Limited,
D.No.40-581-A, 2nd Floor, S.V.Complex, Kurnool-518 002.
2. The Branch Manager, SBI Life Insurance Company Limited,
D.No.5-9-58/B, Hyderabad Branch, Ground Floor, Parishram Bhavan,
Basher Bagh, Hyderabad-500 029. … Opposite parties
This complaint is coming on this day for orders in the presence of Sri.A.Prabhakar Reddy , Advocate, for the complainant, and Sri.M.Syam Kumar Reddy, Advocate, for the opposite parties 1 and 2 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.152/08
1. This case of the complainant is filed U/S 12 of C.P.Act seeking direction on the opposite parties to pay him Rs.1,25,000/- ( assured amount) along with bonus and interest at 24% p.a from the date of demise of the policy holder, Rs.10,000/- as compensation and cost of the case alleging deficiency of service on the part of the opposite parties in wrong repudiation of his claim of insurance arising on account of demise of his father B.Ramakrishna Paramahamsa , holder of policy No. 24023731504 issued by opposite parties , with severe breathing problem occurred on 25-11-2007 , on the pretext of suppression of material fact by deceased policy holder as to his known diabetes mellitus at the time of obtaining the policy and the said repudiation not only ensuing mental agony to the complainant but also depriving him of his entitles .
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite parties caused their appearance through their counsel and contested the case denying their liability to the complainants case and filling written version .
3. The written version of the opposite party No. 1 , adopted by opposite party No. 2 , even though admit the father of the complainant as the holder of alleged policy , justifies the repudiation of insurance claim of the complainant as the complainant’s father suppressed the fact of his pre-existing diabetes at the time of obtaining the policy in his answers to relevant questions as to his health and died due to said suppressed ailment within four months of obtaining the said policy and the wife of the deceased policy holder also stated in her statement to the opposite party as to the diabetes of him since last 10 years and the hospital record of treatment also lend support to it . It further alleges that even though Clause 18 of policy forfeits the amount paid by policy holder to insurance company in case of suppression of material facts as to health of the policy holder , under Clause 20 of the policy it has refunded to complainant Rs.26,524/- vide cheque No. 283447 dated 30-03-2008 - the value of the fund prevalent on the first working day following the date of receipt of claim intimation from complainant and so allege of any of its deficiency towards the complainant and the case of the complainant being with molafied intention to have a wrongful gain at the undue harassment of the opposite parties , seeks dismissal of the complaint with cost.
4. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A4 besides his sworn affidavit of the complainant , the opposite party side has taken reliance on documentary record in Ex.B1 to B3 besides to his sworn affidavits of opposite party No. 1.
5. Hence the point for consideration is whether the complainant has made out any deficiency of the opposite parties and there by any of their liability to the complainants claim.
6. The Ex.A1 is the Xerox of death certificate certifying the demise of B.Ramakrishna Paramahamsa on 25-11-2007 in the District Hospital , Nandyal . The Ex.A2 is the out patient ticket in the name of the said deceased mentioning therein the date of his admission and demise on 25-11-2007 at 4.40 A.M and 25-11-2007 at 6.20 A.M respectively .These Ex.A1 and A2 remains proved as there is any dispute as to their bonafidees.
7. The Ex.A3 – the letter dated 28-03-2008 issued by the opposite party expressing its inability to pay the claim as in the proposal for insurance the said deceased policy holder have answered the question No. III and X relating to facts of any of his earlier hospitalization , surgical operation or any investigations and medical treatment in last one decade and of his suffering with diabetes B.P and treatment for them respectively , in negative and the record collected by it during enquiry envisages that the policy holder was suffering with diabetes even prior to the date of his obtaining the policy .
8. The written version of the opposite party takes mention of an attested copy of the hospital case sheet dated 25-11-2007 , among the other documents enclosed to the written version , and merely marks in Ex.B3 a xerox of case sheet without bothering for its proof by examination of its author . Apart from the above it does not make mention of any fact by which the person concerned there in was a known diabetic since last 10 years or the complication , for which the said person was rendered treatment, was having any nexus to the alleged diabetes . Nor any doctor ,who rendered said treatment mentioned in said case sheet who was examined to probablise the nexus of said suffering of patient with his diabetes . Thus the opposite party has not endeavored to prove the fact which they allege for justifying the repudiation of claim. As mere marking of a document without endeavoring of its proof by cogent means is not sufficient to hold the bonafidees in the said repudiation . So the opposite parties are remaining failed prima-facie in making out any nexus between alleged suppressed fact and the complication with which the said person died .
9. The opposite party side did not even made any endeavor to substantiate the contents of investigation report dated 14-02-2008 ( Ex.B3) by examining its author P.Madhusudhan Rao except merely taking a reference on it . It not even substantiate , inspite of denial by complainant of the alleged statement of B.Nagalakshimi ( wife of the deceased policy holder) on which it relies as to the alleged suffering of deceased policy holder with diabetes since 10 years and to feel the deceased policy holder was having the pre-existing diabetes by the time of obtaining policy and its intentional suppression to have an undue advantage of the policy .
10. In the absence of any substantiating cogent proof as to alleged pre-existing decease to the policy holder its fraudulent suppression being in no of it cannot implied to attract Sec.45 Insurance Act .
11. Sec.45 Insurance Act says policy not to be called in question on ground of misstatement after two years . This does not mean that the insurer will have to prove the suppression of material fact in case it repudiates the claim after two years from the date of commencement of the policy . As such an impression of the opposite parties is nothing but a misconstrual and misunderstanding of the said provision by the opposite party as the real meaning and scope of the above envisaged in Sec.45 Insurance Act is that it cannot be take shelter of misrepresentation of facts if the claim arises after to two years of the commencement of the policy .
12. A suppression of material fact is to be gathered by proof of it by cogent means and so not by its mere alleging thinking on surmises even though the basis for contract of insurance is utmost confidence . Hence the exemption of insurers liability on suppression of facts means the availability of said exemption to insurer on proof of the said suppression of facts and not otherwise .
13. Therefore the decision of Hon’ble Supreme Court in Chackochan Vs LIC of India and another decision in Seelark Vs United India Insurance Company Limited, cited by the opposite parties side is having any bearing on the case in favour of the opposite party .
14. The decision in ( I ) 1993 CPJ Pg 94 National Consumer Disputes Redressal Commission and I 1995 CPJ Pg122 National Consumer Disputes Redressal Commission cited by the opposite parties in its written arguments without reference to the parties concerned there in , also is having any relevant application to the facts and circumstances of the case as the case sheet apart from being not proved by examination of its author , is not speaking since how long the said diabetes was to said patient on one hand and not even furnishing any relevant past history regarding it . Hence the mere mention in case sheet as known diabetes not remaining sufficient to hold it as a history record of pre-existing decease for having its safe reliance for repudiating the claim .
15. When the author of the investigation report ( Ex.B3) itself was not examined by the opposite parties in substantiation of its contents affording an opportunity to the complainant side to test its veracity and credibility , the said investigation report in Ex.B3 shall not remain as proved as one bonafidely recorded in discharge of its duties to have any relevant application in favour of the opposite party the decision in Panni Devi Vs LIC reported in III ( 2003) CPJ Pg 15 National Consumer Disputes Redressal Commission which was merely taken reference of by the opposite party in its written arguments..
16. Hence in the above state of circumstances there appears any justification in the repudiation made by the opposite party of the complainants claim preferred on the Ex.B2 policy of the deceased life assured.
17. While the written version of the opposite party and the Ex.A3 takes a mention of payment of Rs.26,524/- to the complainant as a refund of fund value as per the policy conditions , there appears any mention of it in the complainants pleadings nor any denial of the same by the complainant . In the said circumstances the complainant appears to be guilty of suppression of the said fact as to payment made by the opposite party to it under said policy . So the approach of complainant in filing this case in suppression of the above facts appear to be with any clean heart , mind and hands to hold any of the exclusive faulty conduct of the opposite party in driving the complainant to the forum for its entitled reliefs .
18. Consequently the complainant is not remaining entitled to any cost of this litigation but remaining entitled only to the balance of the assured amount under said policy of his deceased father ie., Rs. 98,476/- , (which remains as balance after adjustment of said Rs.26,524/- from the said assured amount of Rs.1,25,000/- ) at the liability of the opposite parties .
19. However the opposite parties as are not remaining justifiable in disallowing the complainant to the above stated entitled extent even and there by ensured mental agony to the complainant , an amount of Rs.5,000/- appears to be a justifiable compensation for the suffered mental agony of the complainant at the liability of the opposite parties .
20. In the result of the above discussion , the complaint is allowed directing opposite parties 1 and 2 in their joint and several liability to pay to the complainant Rs.98,476/- under the policy in Ex.B2 , Rs.5,000/- as compensation for mental agony within a month of receipt of this order. In default the opposite parties 1 and 2 shall pay the supra stated award at their joint and several liability to the complainant with an interest of 12% p.a from the date of default till realization.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 07th day of March, 2009.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Xerox copy of death certificate.
Ex.A2. Opposite party chit dated nil of the deceased.
Ex.A3. Repudiation letter dated 28-03-2008.
Ex.A4. First premium receipt dated 02-08-2007.
List of exhibits marked for the opposite parties:
Ex.B1. Proposal dated 27-07-2007.
Ex.B2. Policy bond with letter and conditions.
Ex.B3. Investigation report dated 14-02-2008.
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
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