Karnataka

StateCommission

A/3109/2016

Sr.Divisional Manager - Complainant(s)

Versus

Achutha Acharya - Opp.Party(s)

Rajashekhar K

23 Jun 2021

ORDER

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

 

 

DATED THIS THE 23^RD DAY OF JUNE 2021

 

 

 

MR. KRISHNAMURTHY B. SANGANNAVAR      : JUDICIAL MEMBER

MRS. DIVYASHREE M.                                     : MEMBER

 

Appeal No. 3109/2016

 

1.  Sr.Divisional Manager      LIC of India, Divisional Office,      "Jeevan Krishna", P.B.No.8, Ajjarikhad      Udupi-576 101 2.  Zonal Claims Review Committee      Jeevan Bhagya, LIC of India,      SAIFABAD, Hyderabad.       Both Represented by Authorized Representative T.K.Padiyar Manager (Legal & HPF) LIC of India, Division Office No.1, J.C.Road, Bangalore-560002 (By Sri. Rajashekhar K.) V/s	..…Appellants
Achutha Acharya S/o. Rudriah Acharya since deceased represented by his legal heirs       Jayanathi Acharya Pravin Acharya Sarojini Acharya       Being wife and children of the deceased Achutha Acharya all residing in Sagri Chakrathirtha P.O. Kunjibettu, Udupi-576 102 (By Sri. Nagaraj Hegde)	……Respondents

O R D E R

 

Mr. KRISHNAMURTHY B. SANGANNAVAR, JUDICIAL MEMBER

 

This is an appeal filed by OP in C.C.No.38/2012 under Section 15 of the Consumer Protection Act 1986, aggrieved by the order dated 13.10.2016 passed by the District Consumer Disputes Redressal Forum, Udupi (for short District Commission).

2. The case in brief as stated by the complainant that one Mr. Achutha Acharya raised a consumer complaint on the ground that he is father and nominee of Mr. Harishchandra Acharya. He died during pendency of the proceedings and his    wife and children came on record as legal representatives, since right to sue survives. Mr. Harishchandra Acharya was working as a junior Engineer in a local firm of Architects & Engineers, Udupi.  During March 2006 Mr. Harishchandra Acharya obtained Bima Gold Policy under table & term 174/16 with commencement date from 08.03.2006 with quarterly payment of Rs.1,254/-, the sum assured was Rs.1.00 lakh.  He made his father as a nominee.  However, on 14.07.2008 committed suicide.  When a claim was made to OP, came to be rejected stating that insured made deliberate mis-statements and withheld material information from LIC regarding his health at the time of effecting the assurance.  Accordingly, OP repudiated the claim. OP/appellant submitted that Dr. Bhandary had no competence to assess his opinion and contend that diseased had suppressed true information as to his health statement.  Further, submitted a contract of insurance cover by principles of utmost good faith, as such it is duty bound on the part of insurer to disclose material facts not in mis-represent the material facts and not to make fraudulent claim.  Thus, the legal representatives of insured/ nominee are not entitled for sum assured pursuant to policy obtained by Mr. Harishchandra Acharya.
3. In view of  rival contentions of complainant and OPs, forum below held an enquiry by receiving affidavit evidence of CW-1 to 4 receiving Ex.C1 to C12, besides, receiving affidavit evidence of Order 10 Rule 2 and Ex. R1 to R7 and in  appreciation of facts  allowed the complaint directing OPs to settle the claim in favour of complainants besides awarding compensation of Rs.30,000/- and Rs.10,000/- towards litigation expenses which is now in appeal on the grounds that the impugned order is contrary to law and facts and probabilities of the case, the life assured had been taking treatment for Schizotypal disorder for past 3 years and 11 months, before obtaining policy he was taking treatment as an out-patient in Psychiatric Department of KMC Hospital, Manipal.  It is a clear case of concealment of material facts at the time of taking the policy, insured has committed suicide only due to his worsening mental disease for the last 5 years was not disclosed and he misrepresented declaration about his health before he could obtain policy from OPs, but, forum could have dismissed the complaint and justified repudiation of the claim on account of misstatement of the insured in the proposal as to his health condition.
4. The Commission heard Learned Counsel for respective parties and we have gone through the appeal records.
5. Now we have to examine whether impugned order passed by the District Forum, Udupi in C.C.No.38/2012 dated 13.10.2016 is contrary to facts and law as appealed by Ops Or it could be maintained ?.
6. It is not in dispute that Mr.Harishchandra Acharya obtained Bima Gold Policy No.624347128 with commencement date 08.03.2006 for a sum assured Rs.1.00 lakh under table & term 174/16 with premium payment at Rs.1,254/- quarterly.  It is also not in dispute that insured had nominated his father Achutha Acharya in the said policy.  Mr. Achutha Acharya raised consumer complaint before forum under Section 12 of the Consumer Protection Act, 1986 died during pendency of enquiry and his legal representative namely wife and children were brought as parties, since, cause of action to sue OPs survived.  At the very outset Commission to make mention of the fact that insured Harishchandra Acharya was a Junior Engineer working in a local firm of Architects & Engineers under the name and style AG Associates, Udupi.  He obtained policy with sum assured Rs.1.00 lakh on 08.03.2006.  He paid premium amount regularly and  died on 14.07.2008.  He died after 2+ years from the date of obtaining Bima Gold Policy nominating his father Achutha Acharya as nominee.  The OPs repudiated the claim only on the ground that insured was suffering from Schizotypal disorder for 3 years 11 months at the time of proposing for the captioned policy for which he has been regularly taking treatment in Psychiatric Department at KMC Hospital, Manipal.  In this regard certain dates were furnished about his taking treatment they are; on 28.03.2002, 08.04.2002, 15.04.2002, 29.04.2002, 24.09.2005, 07.10.2005 and 11.11.2005.  It is therefore, appellant / OP would submit as the Contract of insurance is of “Uberrima Fides” (Utomost good faith), wherein the proposer is required to disclose correct status of his/her health to enable the insurer to assess risk is violated.  In this regard if we examine the impugned order could see, the forum below dealt in detail as to the effect of Section 45 of the Insurance Act.  As per Section 45 two years having been lapsed the burden is on the insurer to show that the information undisclosed is material matter and it is material to disclose and fraudulently suppressed and the policy holder knew it at the time of proposing that it is false.  In other words, in this case burden is upon the OPs to disprove the categorical opinion of Dr.Bhandary either by examining yet another psychiatrist or obtaining a second opinion to rebut the opinion of said doctor, since, Dr.P.V. Bhandarkar Psychiatrist in Dr. AV Baliga Memorial Hospital, Udupi gave an opinion that on reviewing the records also there is no history of suicidal tendencies and there is no scientific literature which says Schizotypal personality is a risk factor for suicide.  In such circumstances, OPs have to hold that they failed to prove that insured committed suicide because of psychiatric dis-order.   The documents which they have placed before forum in this regard are OP record marked as Ex.R5, Zerox copy of the claimants statement, Ex.R6 original proposal form.  The rest of the documents are copy of the PM, copy of the FIR, copy of the inquest report. The OPs examined Mr. Madhava Pai, Legal Manager, in other words failed to examine yet another medical expert to disprove the opinion of Dr. P.V. Bhandarkar, Psychiatrist who gave his opinion that there is no history of suicidal tendencies on reviewing the records and he has also opinioned that there is no scientific literature which says Schizotypal personality is a risk factor for suicide.  Further, as could be seen from the enquiry,  since insured was a junior engineer working for AG Associates, Udupi was in-charge of 4 sites at a time, managing projects very effectively, they never observed any irregularity in his behavior and he was very punctual in his duties as deposed by CW4 M. Gopala Bhat, Partner of AG associates, contrary to this evidence OPs placed nothing on record to prove that he was suffering from serious health issue, could not handle managing the projects as deposed by CW 4 and to prove that insured is prone to suicidal tendency through the medical expert evidence.  In such situation contention of OP/ appellant that insured did not disclose material matters and he has suppressed certain material facts as to his health issue before he could obtain policy from OP is rightly turned down by the forum below.
7. Thus, we after examining the impugned order carefully,   found right forum below has perceived facts put forth by the complainant and appreciated the materials placed by parties and applied principles enunciated in the decisions cited by respective parties.  In so far as the decisions cited by Learned Counsel for appellant in the matter of Life Insurance Corporation of India Vs. Smt. Maya Devi in R.P.No.1327/2008 dated 20.08.2015 of the Hon’ble National Consumer Disputes Redressal Commission wherein it was held there was a clear suppression of material facts with regard to the health of the insured.  As afore-stated, it was not for him to decide whether the information sought for in the aforesaid questionnaire was material for the purpose of the policy in question.  At any rate, the statements made in the proposal form were untrue and incorrect.  Therefore, we are of the opinion that the Corporation was justified in repudiating the claim made by the complainant could not be applied to the facts of the case in this appeal, since, in the said case prior to taking policy in question for the last 5 months insured was suffering from Acute Transient Psychotic disorder for which he had consulted doctors, had taken treatment in the hospital, he was also on medical leave for 15 days, but, these facts were not disclosed by the insured while taking policy in question and therefore, claim could not be paid for non-disclosure of material information.  However, in the case on hand before the Commission, admittedly, the policy issued with effect from 08.03.2006 and the insured died on 14.07.2008 was almost 2+ years, as such burden shifts on OPs to prove that insured had suppressed the material facts which from the enquiry, records and impugned order, OPs failure was rightly perceived by the forum below to hold that claim of the complainant has been repudiated amounts to deficiency in service.  Thus, with such conclusion impugned order passed by the Commission below could not be said contrary to law, facts and probabilities of the case.  Accordingly, we proceed to dismiss the appeal filed by the OPs under Section 15 of the consumer Protection Act, 1986 with no order as to costs.  Consequently, confirmed the order dated 13.10.2016 passed by District Forum, Udupi in C.C.No.38/2012 and direct the office to transfer deposit amount to the District Commission for disbursal in favour of complainants.

 

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