BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

FA  519  of  2010   against C.C.  66/2008,  Dist. Forum, Ananthapur

Between:

1)  Master A.Tarun Mittal

S/o Late A. Anup Agarwal

Rep.by  guardian Ashok Agarwal

S/o Late Bhagavathi Prasad

D.No.10/355,Sarojini Road

New Town,  Anantapur.

 2)   Smt.  A. Bhavana Agarwal

 W/o Late A. Anup Agarwal

 D.No.10/355,Sarojini Road

 New Town, Anantapur.                                

                                                                     ***                       Appellants/

                                                                                                Complainants

                                                                   And

1)  The Managing Director

Bajaj Allianz Life Insurance Co. Ltd.,

Regd. & Head Office at G.E. Plaza

Airport Road,Yerwada

PUNE.

2)  The Branch Manager

Bajaj Allianz Life Insurance Co. Ltd.,

Branch Office, Adoni

Kurnool District.

3)  The Branch Manager,

Bajaj Allianz Life Insurance Co. Ltd.,

Branch Office, Anantapur.                           ***                         Respondents/

                                                                                                O.Ps.

Counsel for the Appellants:                         M/s.  P. Nagendra Reddy

Counsel for the Respondents:                     M/s.  Srinivas Karra

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

                                                                   &

                                 SMT. M.SHREESHA, MEMBER

WEDNESDAY, THE EIGHTEENTH DAY OF  JANUARY TWO THOUSAND TWELVE

ORAL ORDER:  (Per Hon’ble Sri Justice D.Appa Rao, President )

***

1)                Appellants are  unsuccessful complainants.

2)                The case of the complainants in brief is that  they are son and wife of  Anup Agarwal respectively.   He had taken child gain insurance  policy for a sum of  Rs. 3 lakhs  commencing from   12.1.2007 for a period of 18 years wherein in case of death of minor child   he would be entitled to the amount covered under the policy  with other incentives  or  Rs. 1,000/- every month for 18 years besides Rs. 1 lakh.   While so he died on  3.5.2007 while undergoing  medical treatment due to ‘Tachycardia induced -  Cardio Myopathy’.   When claim was made followed by legal notice, it was repudiated.  Assailing the repudiation  they filed the complaint claiming  the amounts covered under the above policies besides  Rs. 30,000/- towards damages, Rs. 50,000/- towards mental agony in all Rs. 4,50,000/- together with interest and costs. 

3)                The insurance company resisted the case.   The risk of the deceased   is covered  on the basis of facts mentioned by him  in the proposal form.    He had suppressed his health condition viz.,  medial history of  diabetes miletus since one year, and other ailments.   He had pre-existing disease for which he had been taking treatment for the last four to five years  confirmed by   certificate issued by Dr. Md. Ghouse of Gowri Gopal Hospital submitted by the very complainant along with claim form.    It was mentioned that  he had history of  ‘Rhematoid Artherities  of about 5 to 6 years  and was being treated with steroids.’   He also mentioned that the ‘deceased had diabetes for  the past one year and was taking insulin.’   Since the deceased was hospitalized  within a short period of taking of the policy, and had pre-existing disease, the claim was repudiated.    There was no deficiency in service on its part, and therefore prayed for dismissal of the complaint with costs.

4)                 The complainants in proof of their case filed the affidavit evidence of complainant No. 1 and got Exs. A1 to A20   marked  while the insurance company filed the affidavit evidence of its  Divisional Manager and  got Exs. B1 to B4 marked.

5)                The Dist. Forum after considering the evidence placed on record opined that the deceased had admittedly suppressed various ailments while submitting the proposal form, and the suppression being material dismissed the complaint.

6)                Aggrieved by the said decision, the  complainants  preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.   It ought to have considered that there was no nexus between his ailment and cause of death.   The ailments were not chronic in order to mention them in the proposal form, and therefore prayed that the complaint be allowed.    

7)                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                It is an undisputed fact that the deceased Anrup Agarwal had taken two policies one for Rs. 70,000/- and another for Rs. 3 lakhs commencing from 12.1.2007.    He died on 3.5.2007 while undergoing  medical treatment due to  ‘Tachycardia induced -  Cardio Myopathy’ vide Ex. A6 issued by  Gowri Gopal Hospital filed by the very complainants.   The death took place within four month after taking of the policy.  The complainants themselves filed Ex. A1 to A3 proposal forms wherein the  assured did not allege anywhere  that he was suffering from ailments or that  he was admitted in the hospital  at any time for taking treatment.    Importantly  against  the coloumn No. 14  he mentioned ‘No’.  For better appreciation  we excerpt Colomn No. 14 :

Question No.14 is Have you ever been treated or currently under treatment for any of following conditions. Question No.14 (g) is any diseases and disorder of the metabolic and endocrine system such as but not limited to diabetes, hypothyroidism, goiter or other endocrine diseases. The answer given by the deceased is “No”. Question No.14 (i) is any diseases and disorders of the musculo-skeletal system, such as but not limited to chronic fever, rheumatic fever, rheumatism, gout, spinal curvature or related to spines, joints or musculo-skelton, The answer given by the deceased is “No “. Question No.14(l)  is in the last 5 years, have you ever had or been advised to have or are likely within next 30 days to undergo medical examination or any investigation such as but not limited to blood test, urine test, X-ray, ECG or biopsy, CT scan or test by any other special instrument. The answer given by the deceased is “No “.  Question No.14 (m) is injured, sick, operated, given a medical consultation given a medical advice on health, care in any hospital. The answer given by the deceased is “No”. 

9)                Ex. B1 is the  certificate of hospital treatment  record  pertaining to the  deceased maintained by  Gowri Gopal Hospital.    He was diagnosed for Rheumatoid Arthritis, diabetes  and viral fever when he arrived at the hospital.    There was a mention that Rheumatoid Arthritis was pre-existing  for the past 5- 6 years  and was  on steroids treatment.   It was also mentioned that he was suffering from   diabetes for the past one year, and he was on insulin treatment.    As we have earlier pointed out he died due to   ‘‘Tachycardia induced -  Cardio Myopathy’.    The complainants themselves  filed the record pertaining  to the  complaint filed against another insurance company for recovery of the amount covered under the policy.   Therefore the complainant has cross-examined  the very doctor Dr. Ghouse who was examined in another C.C. 37/2008  filed against Shriram Life Insurance  for realization of amount covered under the policy.   The claim pertains to the very same deceased.  They intend to contend that there was no nexus  between the ailment  and cause of death and suppression of those ailments if any.   They were not material, and therefore they were entitled to compensation.   The doctor’s evidence has been marked as Ex. A13.   When the very complainants have filed cross-examination  in order  to rely that there was no suppression,  there could not be any difficulty in relying the evidence of Dr. Ghouse.   Dr. Mohd. Ghouse had categorically stated that :    

The counsel for the complainants marked Ex.A13 cross-examination of Dr.Md.Ghouse in C.C.No.37/2008. In C.C.No.37/2008 the second complainant herein is the complainant claiming insurance amount for the death of the deceased herein. In his cross-examination, the said witness has stated that he is consultant physician in Gowri Gopal Hospital, Kurnool, prior to the treatment. On 02-05-2007 deceased was treated in G.G. Hospital, Adoni. According to discharge summary of the previous hospital, they continued the treatment at Kurnool. Dr. Dass, E.N.T. Specialist have also treated the patient as per case sheet page No.31. In that page, there is no mention that the patient is in the habit of Gutka. As per that page the complaint is died to infection. Generally due to tensions, is one of the reasons for diabetic. The reason for sudden death is Cardio Mayopathi.  By the time of admission of the deceased in the hospital, he was already in serious condition. As per page No.13 insulin was given to patient accordingly every one hour, the diabetic was fluctuating according to the page. It is to say they have treated the patient accordingly to the ailment of the patient. The cause of death is only for the reasons mentioned in the Death Certificate. As per page No.33 of the case sheet the sugar control is 140 on 01-05-2007.

11.     The counsel for the complainants has only filed part of cross-examination of Dr. Md.Ghouse but not the entire evidence of Dr.Md.Ghouse, Therefore, part of cross-examination on which the counsel for the complainants relied on under Ex.A13 cannot be considered.  The counsel for the complainants filed petition on 28-10-2009 before this Forum and list of documents filed along with the said petition marked as Annexure 13 to 17. Annexure-16 is entire cross-examination of Dr.Md.Ghouse by the counsel for the opposite parties in O.P. No.37/08 i.e. A.Suresh Kumar and thereafter the same doctor was cross-examined by the counsel for the complainants. Since the entire cross-examination of Dr.Md.Ghouse is available under Annexure-A16, we are of the view that this Forum has to look into the entire cross-examination of Dr.Md.Ghouse.  The counsel for the opposite parties in O.P.No.37/2008, in order to prove their contention that the deceased suppressed his aliments, which were prior to obtaining the Insurance Policies, instead of examining the said Doctor in the chief examination by over-sight, cross-examined him.

Dr.Md.Ghouse in his cross-examination stated that one Anup Kumar Agarwal (deceased) has taken treatment in their hospital on 02-05-2007. He was admitted in the said hospital for the basic ailment was fever, body pains, pain in throat of 6 days duration, vomiting of 2 days duration, loose motions since night.  There is one previous history of the patient suffering from Rheumatoid Arthritis.  It is an auto immune disease.  It is not correct to say that out of the Gutka habit of deceased, he was attacked with the said disease. Naturally we will collect information from the patient about his previous illness. Whatever information given to them, they will collect about the previous illness, they put it on the case sheet.   As per the case sheet page 19 marked Anoop Agarwal was suffering with Rheumatoid Arthritis since six years and suffering with diabetes mellitus and hypertension for the past one year.  At the same time, Rheumatoid Arthritis may cause fever with vomiting.  In this case, we did not suspect Rheumatoid Arthritis is to the cause of the fever as he has been complaining of throat pain and other things.  Reference letter given by G.G.Hospital, Adoni shows that the patient was with addiction of Gutka.  It is not the cause for the fever and throat pain.  The letter referred by the G.G.Hospital, Adoni shows that Gutka addiction is one of the past habit of the patient marked as exhibit case sheet page No.7.The patient is on steroids for the past five to six years for Rheumatoid Arthritis marked as exhibit in page No.3.  Any person who is suffering with Rheumatoid Arthritis must have the medical assistance, it is a chronic disease.  He was also taking treatment for Rheumatoid Arthritis since five or six years. It is not true to say that Rheumatoid Arthritis is not the reasons for death of Anoop Agarwal marked as exhibit  as per the claim Form B statement certified by him.

Based on the above evidence, the Dist. Forum opined that :

12.     Thus, in view of the said evidence of Dr.Md.Ghouse, who treated the diseased before his death, it clearly goes to show that the deceased had Rheumatoid Arthritis since 5 to 6 years and also he was suffering with diabetes mellitus, hypertension for the past one year and he was addicted to Gutka.  The said evidence of Dr.Md.Ghouse was unchallenged by the counsel for the complainants. Therefore, considering the said facts and circumstances, we have no hesitation to come to the conclusion that the deceased was suffering with Rheumatoid Arthritis since 5 to 6 years and diabetes mellitus and hypertension for the past one year and addicted to Gutka prior to obtaining Insurance Policies in question by the deceased and he has deliberately not mentioned the said diseases in his proposal forms under questions 14(i), (l) and (m) referred above for obtaining the insurance policies and thereby suppressed the same and obtained Insurance Policies in question. Since the deceased was continuously taking steroids for the ailment of Rheumatoid Arthritis and he was suffering from  diabetes mellitus prior to obtaining the Insurance Policies in question. Therefore, those ailments will certainly deteriorate the functioning of organs like kidney, lever, heart etc., and it is quite probable that the deceased would have died on account of the above diseases. Therefore, the contention of the counsel for the complainants that the repudiation of the claim of the complainants by the opposite parties is unjustified and it amounts to deficiency of service of the part of the opposite parties holds no good and the decisions cited by the counsel for the complainants referred above do not apply to the facts of this case. 

 There was no dispute that Dr. Mohd. Ghouse had treated the deceased prior to his death.  He confirmed that the deceased was suffering from Rheumatoid Arthritis.  It  was pre-existing  for the past 5- 6 years  and was  on steroids treatment.  He  also mentioned that he was suffering from   diabetes for the past one year, and he was on insulin treatment. When the said ailments  were  made a mention in the questionnaire  the deceased could not have suppressed the fact that he had not been taking treatment for the above said ailments.    In view of material suppression it must be held that suppression was vital, and the insurance company was justified in repudiating the claim.   We do not see any mis-appreciation of fact or law by the Dist. Forum in this regard.  We do not see any merits in the appeal.

10)               In the result the appeal is dismissed.  No costs.     

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

18/01/2012

*pnr

UP LOAD – O.K.