Andhra Pradesh

Nellore

CC/50/2015

Kakani Dhanamma wife of Late Kakani Yagappa - Complainant(s)

Versus

1.The Manager,Birla Sun Life Insurance Company Ltd, - Opp.Party(s)

D.Bala Gopal Reddy

23 Oct 2017

ORDER

Date of Filing     :11-12-2013

                                                                             Date of Disposal:23-10-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Monday, this the 23^rd day of   OCTOBER, 2017

 

          Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President

                         Sri K. Umamaheswara Rao, M.A., B.L., Member

 

C.C.No.50/2015

 

Kakani Dhanamma,

W/o.Late Kakani Yagappa,

Hindu, House wife,

Resident of Isakapalli Village,

Alluru Mandal,

S.P.S.R.Nellore District,

Andhra Pradesh.                                                                        ..… Complainant       

                                                             Vs.

 

1.	The Manager, Birla Sun Life Insurance Company Limited, 2nd floor, Sapphire complex, Near Rajivi Gandhi Circle, Somagiguda, Hyderabad-500082.
2.	The Birla Sun Life Insurance Company Limited,                                                                                        One India Bulls, Center,  Tower 1, 15th and 16th floor, Jupiter Mill Compound, 841, Senapati Bapat Marg, Elphingtone Road, Mumbai-400013.
3.	The Branch Manager, Birla Sun Life Insurance Company Limited, S.H.Pet, Near S.B.I., Nellore.                                            ..…Opposite parties

                                                      .      

 

          This complaint is coming before us for hearing in the presence of                Sri D. Bala Gopal Reddy, advocate for the complainant and                                    Sri Md. FAzil Ahamed and Sri Sk. Sameen Kamal,  advocates for the opposite parties  and having stood over for consideration till this day and this Forum passed the following:

ORDER

 

                       (ORDER BY  Sri.Sk.MOHD.ISMAIL, PRESIDENT)

 

          The complaint filed by the complainant against the opposite parties 1 to 3 under Section-12 of Consumer Protection Act, 1986 to direct the opposite parties    1 and 2  for payment of Rs.1,30,000/- being the assured amount under the policy with interest at 12% p.a. from the date of  claim rejecting letter dated 14-12-2011 till its payment, Rs.50,000/- towards damages for causing mental agony and deficiency  in service and award costs and submits to allow the complaint with costs.

        2. The brief  averments of  complaint are as follows that:-

              The complainant submits that she is the wife of Late Kakani Yagappa, the said Kakani Yagappa  obtained policy from the opposite parties.  The said Kakani Yagappa is the son of Late Venkaiah insured  his life  for Rs.1,30,000/- with the 1^st opposite party branch under policyNo.004339502 on 18-08-2010. The yearly premium of the said policy is Rs.25,325/-  p.a.  and the  said KakaniYagappa paid the said premium amount.  The complainant submits that the insured nominated his wife who is the complainant as nominee under the said policy.

         The complainant submits that her husband  unfortunately died on 07-12-2010 due to Acute Calculus Cholecystitis-Lap Colecystectony done Hepatitis Sepsis.  The complainant submitted the claim on 21-10-2011 along with necessary documents to the 1^st opposite party  requesting him to pay the amount due under the policy.  The opposite parties under their letters dated 29-07-2011 repudiated the claim of the complainant that he has suppressed the material facts of his earlier diseases and their investigation is established that the life insured was a known case of diabetes mellitus since long and was undergone regular treatment for the  same prior to the application for insurance, the opposite party without admitting any liability under the policy.  The opposite party refunded the cash surrender value ofRs.10,734-49 being  the full and final settlements of the captained policy on the Kakani Yagappa.  On receiving the said reply the complainant again issued another reply  notices dated 03-12-2011 again on 14-12-2011, the complainant received information from the opposite party    stating that there is no basis to revise their earlier  decision, aggrieved  the said decision of the opposite party, the complainant filed complaint before the Ombudsman.  The insured is not suffered with any ailment by the date of obtaining  the policy.  In this contest, it is submitted that there is no proof that the insured is suffered the diseases as mentioned in the letter of repudiation of the claim.  Mere allegations made by the opposite party for repudiation of the  claim is not sustainable  in Law and the reasons for repudiation is only to avoid the payment of the policy amount. If really the insured is suffered with such ailment as alleged by the opposite parties they ought  to have cancelled the policy prior to his death.  It clearly shows  that  their defense is only invented for the purpose of avoiding   the payment  of insurance amount with malafide intention without proper application of mind which is not reasonable, justifiable  both in principle and doctrine.  There is clear negligence and deficiency of service on the part of the opposite parties in not paying the policy amount and submits to allow the complaint with costs.

          3.       The opposite parties  1 to 3 filed written statement with the following averments that:- It is denied that the complainant is the wife of Late Kakani Yagappa, the said Kakani Yagappa obtained policy from the opposite parties.  It is denied that the said Kakani Yagappa is the son of Late Venkaiah insured  his life for Rs.1,30,000/- with the1st opposite party branch under policy No.004339502 on18-08-2010.  The yearly premium of the said policy is Rs.25,325/- p.a. and the said Kakani Yagappa paid the said premium amount and  the  insured nominated his wife who is the complainant as nominee under the  said policy.

          The opposite parties submitted that  the complainant husband unfortunately died on 07-12-2010 due to Acute Calculus Cholecystitis-Lap Colecystectony Done Hepatitis Sepsis and the complainant  submitted  the claim on 21-10-2011  along with necessary documents to the opposite party No.1  requesting  him to pay the amount due under the policy.  The opposite parties  on 29-07-2011 repudiated the claim of the complaint that the complainant has suppressed the material  facts of earlier disease of the life assured and their investigation is established that the life insured was a known case of diabetes mellitus  since long time and was undergone regular treatment for the same prior to the application for insurance, the opposite party without admitting  any liability under the policy. The opposite party refunded the cash surrender value  ofRs.10,734.49/- being the full and final  settlements of the captioned policy on the  Kakani Yagappa. On receiving the said reply the complainant again issued   another reply notices dated 03-12-2011 again  on                  14-12-2011,the complainant received information  from the opposite party stating that there is no basis to revise their earlier decision aggrieved the said decision  of the opposite party the complaint filed by the complainant before the  Ombudsman.    

The opposite parties  submitted that the insured  was  suffered with any ailment by the date of obtained the policy. In this contest there is no proof that the insured is not suffered the disease as mentioned in the letter of repudiation of the claim.  The opposite parties denied that  it  clearly shows that their defence is only invented for the  purpose of avoiding the payment of insurance  amount with mallafide intention  without proper application of mind. Which is not reasonable, justification both  in principle and doctrine. The opposite parties denied that there is  clear negligence and deficiency of service on the part of the  opposite parties in not paying the policy amount.

          The opposite parties submitted that it is exceptionally shocking, appalling and lawful that within the three months  of obtaining the said policy the life assured got expired due to the reason as stated above.

          The opposite parties submitted that on the receiving of the claim by the complainant the matter was duly investigated by the opposite parties   and from the medical documents it was noted that the life assured was a known case of  diabetes mellitus   for last 15 years  and the life assured expired on account of Acute Calculous Colecytitis /  Hepatitis and sepsis. It is pertinent to mention  that the life assured before obtaining the said policy covered and concealed the facts  and information concerning  that the  life assured was a k/c/o Diabetes Mellitus  and on treatment for the past 15 years i.e., pre policy issuance.  It is further relevant to reveal that non-disclosure and cause of death are connected to each other.

The opposite parties submitted that though  the Courts may  have held that diabetes may not be a disease in itself, the fact of a person being diabetic, leads to variety of diseases, and the Acute Calculous  Cholecysitis is one of them and the life assured suffered and expired owing  to the above said disease.   It is only after the thorough and meticulous investigation the claim of the complainant got rejected.

 

The opposite parties denied that this Forum has got jurisdiction to entertain the complaint since the 1^st opposite party  issued the policy in Nellore town which is within the jurisdiction of the Forum.  The opposite parties submitted that  as per the agreement between the life assured and the opposite party any dispute arise between them the jurisdiction shall be at the Mumbai where the Head Office of the opposite parties is situated. Hence the presence complaint is liable to be dismissed.

The opposite parties  denied that the complaint is filed  well  within 2 years from the date of repudiation of the claim and hence the complaint is well within time. 

The opposite parties submitted that the complaint filed by the complainant

for recovery of Rs.1,30,000/- due under  policy is not maintainable. The opposite parties submitted that with respect to the prayer clause of claim of the  complainant for  recovery of Rs.1,30,000/- , the complainant is not entitled to any relief from this Forum  and  submits for dismissal of the complaint with costs.

          4.       On behalf of  the complainant, the affidavit of P.W.1  filed  and Exs.A1 to A4 marked.

          5.       On behalf of opposite parties 1 to 3, the affidavit of R.W.1 filed and Exs.B1 to B7 marked.

          6.       On behalf of the complainant and opposite parties, written arguments filed.

          7.       Arguments on behalf of the learned counsels for both parties heard.

          8.       Perused the written arguments filed on behalf of the both parties.

         

9.       Now the points for consideration are:

          (1)     Whether the complaint filed by the complainant against the opposite

                    parties 1 to 3 under Section-12 of Consumer Protection Act, 1986

                    alleging deficiency of service against the opposite parties 1 to 3 is

                    maintainable?

          (2)      To what relief, the complainant is entitled?

 

          10.     POINT No.1:The learned counsel for the complainant submits that during the life time of the husband of the complainant, he obtained policy from the opposite parties 1 to 3 for Rs.1,30,000/-  and paid premium and died  due to Acute Calculus Cholecystitis-Lap Colecystectony  Done Hepatitis Sepsis and after death of the husband of the complainant, the complainant submitted  with all documents   to the opposite parties for payment of the policy amount but the complainant received the  cash  of  surrender value of  Rs.10,734-49 Ps.  and inspite of issuing of legal notice as the opposite parties failed to pay balance of the policy amount, the complainant filed this complaint against the opposite parties 1 to 3  to direct the opposite parties 1 to 3 for payment of Rs.1,30,000/-  with interest @ 12% p.a.from the date of the rejecting letter dated 14-12-2011 till the payment and submits to allow the complaint by awarding damages  and costs.

          On the other hand, the learned counsel for opposite parties  1 to 3 submits by relying upon the decisions reported,  in

Suraj  Mal Ram Niwas Oil Mills (P) Limited Vs. United India Insurance Company Limited  and another  reported in 2011 ACJ 418,

In   Vikram Greentech (I) Limited and another Vs. New India Assurance Company Limited reported in  AIR 2009                  (SC) 2493   and

In   S. Girija Selvaraj and  S. Prabhu Vignesh Kumar Vs. Sri Swarnambigai All India Travel Company reported in             II (2013) CPJ 176(NC)

 

and by relying  upon Exs.B4 and B5 as the husband of the complainant  suppressed  the material facts at the time of taking policy, the policy taken by the husband of the  complainant  was repudiated on the ground of suppression of material facts about the taking of treatment and hence the complaint filed by the complainant against the opposite parties 1 to 3 is not maintainable and submits for the dismissal of the complaint with costs.

 

In Life Insurance Corporation of India Vs.                     Smt. G.M. Channabasamma reported in  AIR 1991 SC 392.

 

          Wherein the Hon’ble Apex Court held as follows: “the burden of proof that the insured had taken any medical treatment or undergone surgical operation  within the period of proceeding 12 months  and fraudulently suppressed the same  was  on the insurer.”.

 

In Satinder Singh  vs. National Insurance Company Limited reported in   2011 CTJ 379 (NC) and

In   Miss.Abhitha Vs. Life Insurance Corporation of India reported in    2022 (3) CPJ 62 (NC).

 

          Wherein the Hon’ble National Commission  held that the burden is on insurer to show  that the policy holder fraudulently suppressed the material facts about  his health at the time of taking policy.

 

In Oriental Insurance Company Limited Vs.                             Ch. Venkatesham  reported  in   2004 (11) CLD  275(AP),

 

          Wherein the Hon’ble High Court of Andhra Pradesh held as follows:  “Burden of proof of establishing that there  has been misrepresentation of facts and that the death of insured occurred on account of result of the suppressed facts  is on the insurer.  If  the insurer failed to examine the  doctor who conducted kidney transplant to   show on what basis it was mentioned  in  admission  record that the patient was hypertensive, the burden was  not  decided.”

          Following the above decisions, the case of the complainant has to be examined.  The opposite parties 1 to 3  filed Exs.B4 and B5 and submitting that the husband of the complainant (deceased)  was suffering from diabetic mellitus since 15 years  and as the husband of the complainant suppressed  the said diseases and hence the complaint filed by the  complainant is not maintainable.

 

In SBI Life Insurance Company Limited Vs. Kambala Sandhya reported in    2012 (3) CPJ 463 (NC),

 

          Wherein the Hon’ble National Commission held as follows:  Repudiation of the claim on the ground of material suppression of  pre-existing  condition of diabetic   mellitus and hemoptysis was held  unjustified in the absence of  any evidence on record supporting  the claim of suppression of pre-existing diseases.

 

          Following the above decisions, we are of the opinion that even assuming for the sake of arguments that the husband of the complainant was  suffering with diabetic mellitus and haemoptysis  is not a  ground to repudiate the policy.

 

          Further as seen from the Ex.B5 report shows the cause of death of Acute Calculus  Cholecystitis-Lap Colecystectony Done  Hepatitis Sepsis.  The Cause of death noted in Ex.B5 is  no way connected for the death of the husband of the complainant.

In LIC of India and others Vs. Kuchurlapati Krishna Kumari reported in  2007 (4) CPJ 9 (A.P.)

 

          Wherein the Hon’ble  Andhra Pradesh High  Court held as follows: 

 The insurer repudiating the claim on the ground  of suppression of the pre-existing diseases has to establish nexus between  the deceased to have been suppression and the cause of death.

            Following the above decisions, we are of the opinion that  as there is no nexus between the deceased and the cause of death, we are of the opinion that  the complaint filed by the complainant is not maintainable against the opposite parties.  Further as seen from the records, the opposite parties 1 to 3  filed Exs.B4 and B5  to prove  that  the husband of the complainant was suffered with diseases prior to obtain of policy but the opposite parties 1  to 3  failed to examine the concerned doctor who is the  author of Exs.B4 and B5.

In LIC of India Vs.  V. Sekhar Babu reported in                   2007 (3) CPJ 278  (A.P.),

Kommana Veera Raju and others Vs.  LIC of India and another reported in   2007 (4) CPJ 163 (A.P.).

 

          Wherein the  Hon’ble A.P.State Commission held that the burden of proving suppression  was not discharged without producing   affidavit of  doctor in support of  certificate and hence the insurance company was  liable to pay the  amount. 

 

In    LIC  of India  and others Vs.  Kuchurlapati Krishna Kumari    reported in  2007 (4)  CPJ 9 (A.P.),

In A. Venkata Ravi Kishore Vs. Life Insurance Corporation of India and another  reported in  2007 (4) CPJ 244 (A.P.)

 

Wherein the Hon’ble  A.P.State Commission held  that when the doctor who issued certificate was not examined, the burden was not discharged by the opposite parties.

By relying upon the above decisions   and the facts of the case, there is no nexus between the  cause of death of the insured (deceased).  We are of the opinion that the ground which are noted in  Exs.B4 and B5 are not the  reasons for the death of the diseased.   Hence, we are of the opinion that the  complaint  filed by the complainant against the opposite parties 1 to 3  has to be allowed.

By relying upon the above decisions,  we are of the opinion that the decisions submitted by the learned counsel for the  opposite parties 1 to 3 are not applicable to the  facts of the present complaint and the said decisions arises about the  good faith  and bonafides at the time of taking the policy.  By relying upon the above decisions and  discussion made above, we answered this point in favour of  complainant and against the opposite parties 1 to 3. 

11. POINT No.2:In view of our answering  on point No.1 in favour of complainant and against the opposite parties 1to 3, the complaint filed by the complainant  against opposite parties has  to be allowed.

In the result, the complaint is  allowed and the opposite parties 1 to 3 are directed to pay a sum of Rs.1,30,000/- (Rupees one lakh and thirty thousand only) with interest @ 12% p.a. on Rs.1,30,000/- from the date of  Ex.A4 i.e., 14-12-2011 till the date of payment.

The opposite parties  1 to 3 are also directed to pay compensation of Rs.10,000/- (Rupees ten thousand only) for causing mental agony to the complainant.

The opposite parties 1 to 3 are also directed  to pay a sum of Rs.5,000/- (Rupees five thousand only)  towards the costs of the complaint.

The opposite parties 1 to 3 are directed to  comply the order within 30 days from the date of  communication of the order.

          Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the  23^rd  day of  OCTOBER, 2017.

 

        Sd/-                                                                                      Sd/-

      MEMBER                                                                         PRESIDENT

 

                                      APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1  -

17-03-2016

Sri Kakani Dhanamma, W/o.Late Kakani Yagappa, S.PS.R.Nellore District (chief affidavit).

Witnesses Examined for the opposite parties

 

R.W.1  -

22-02-2016

Smt.Kshama  Priyadarshini, Working Chief Manager Legal situated at Birla Sun Life Insurance Company Limited,  Mumbai City District, Maharashtra-400013. (affidavit filed)

                           EXHIBITS MARKED FOR THE COMPLAINANT

 

Ex.A1  -	21-10-2011	Photostat copy of  letter from complainant to the  opposite party No.2.
Ex.A2  -	29-07-2011	Letter from opposite party to the complainant.
Ex.A3  -	04-04-2012	Photostat copy of letter from complainant to the Ombudsman,Hyderabad-500 004 A.P.
Ex.A4  -	14-12-2011	Letter from opposite party to the complainant.

 

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

Ex.B1  -	18-08-2010	Photostat copy of application No.40678208 in favour of  Kakani Yagappa.
Ex.B2  -	-	Photostat copies of New Business Submission checklist application No.440678208  in favour of Kakani Yagappa and receipt No.15831693,ration card  No.WAP091501200144 and applicationNo.40678208, dated 18-08-2010.
Ex.B3  -	-	Photostat copies of Claimants statement, Medical Attendance Certificate and  Death Certificate.
Ex.B4  -	-	Photostat copies of Progress Sheet and Doctors notes  and Death Summary.
Ex.B5  -	-	Photostat copies of Report dated 07-06-2011   issued by Sai Consultancy Services, Chennai-600 092.
Ex.B6  -	-	Photostat copy of Affidavit in favour of  Kakani Danamma.
Ex.B7  -	29-07-2011	Letter from opposite party to the complainant.

 

 

                                                                                                          Id/-

                                                                                                      PRESIDENT

Copies to:

 

1.	Sri D. Bala Gopal Reddy, Advocate, D.No.24-2-405, Near Magunta Statue, Opposite to Santhi Apartments, Dargamitta, Nellore-524 003.
2.	Sri Md. FAzil Ahamed and Sri Sk. Sameen Kamal, Advocates,                     Nellore-524 001.

 

Date when free copy was issued: