IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 301/08 DATED 31.12.2008<br /> <br /> ORDER<br /> <br /> Complainant Mrs. Dhakshayani, W/o Late Shankar, No.223, 3rd Main, Jayalakshmipuram, <br /> Mysore-570012.<br /> (By Sri.B.L.Jagadeesh., Advocate)<br /> <br /> Vs. <br /> Opposite Party Avival Life Insurance Company India Ltd., 2nd Floor, Prakashdeep Building, 7 Talstay Marg, New Delhi-110001. Branch Manager, at 1st Floor Scarlet Towers, Above Yamaha Showroom, Opp. St.Joesph School, Temple Road, Jayalkashmipuram, <br /> Mysore-570012.<br /> (By Sri.H.S.K., Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 03.10.2008<br /> Date of appearance of O.P. : 14.11.2008<br /> Date of order : 31.12.2008<br /> Duration of Proceeding : 1 ½ MONTHS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainant who has approached this Forum against the opposite party is, that her husband namely Shankar had taken an insurance policy from the opposite party for Rs.1,00,000/- on his life with its maturity date 01.03.2017. That the opposite party after receipt of the premium Rs.2,500/- issued a policy in the name of the deceased. The deceased had also paid 2 other premiums on 01.06.2007 and again on 18.09.2007, as such the policy was in force. That at the time of issue of the policy, the deceased was 51 years old was a healthy man. On 01.10.2007, the insured developed uneasiness was taken to Chandrakala Hospital where he was diagnosed as suffering from hypertension and type-II diabetic, which is a common factor in most of the male adults. Then the insured developed breathlessness on 03.10.2007 and pulmonary oedema till then he was stable, his ECG was normal. Then the insured was shifted to K.R.Hospital on 03.10.2007 at 10.00 pm on the advise of Chandrakal Hospital. Thereafter, he was moved to Apollo BGS Hospital on 04.10.2007 with the history of acute severe breathlessness who was treated there, but the insured suffered cardiac arrest and died on 04.10.2007 at 4.15 am. Wherein the Apollo Hospital diagnosed as acute severe LVF, respiratory failure and acute hypoxic, encephalopathy. Then she made a claim with the opposite party on 16.10.2007 with all enclosures, wrote letters, but the opposite party repudiated the claim on the ground that the insured had suppressed the material fact that he was suffering diabetics mellitus prior to the issue of the policy. Therefore, the repudiation is wrong and thus has prayed for a direction to the opposite party to pay the insurance amount Rs.1,00,000/-, Rs.50,000/- towards sufferings and mental agony and Rs.10,000/- towards legal expenses.<br /> 2. The opposite party has entered appearance through his advocate filed version admitting the issue of a policy in the name of the deceased Shankar on his life, but stated that the insured at the time of filling up the proposal form purposely given wrong information stating that he was not suffering from any ailments and as such the complaint on that ground alone is liable to be dismissed. The opposite party further denying all other allegations has contended that the documents produced by the complainant along with her claim application themselves disclose that the insured was a known patient of diabetic and HTN for the last 5 years and the insured since had suppressed this material fact in the proposal form they have repudiated the claim of the complainant and thereby justified their action. The opposite party has also stated that as per the hospital records of Apollo BGS Hospital and K.R.Hospital, Mysore, where the insured was treated themselves disclose that the insured was suffering from type II diabetics and hypertension from past 5 years and therefore denying to have caused any deficiency in their service have justified their action in repudiating the claim of the complainant.<br /> 3. In the process of enquiry into the grievance of the complaint, the complainant and a witness for her namely Nagesh have filed their affidavit evidence. The company Secretary of the opposite party has filed affidavit evidence. In the affidavit evidence filed by the complainant and the opposite party they have reproduced the material facts they have narrated in their respective complaint and version. A witness of the complainant whose affidavit evidence is filed has denied that the deceased was suffering from any hypertension or diabetic mellitus and further stated he is the brother of the complainant had taken the deceased to K.R.Hospital for further treatment and the doctor of K.R.Hospital without any basis in the admission sheet stated as if the insured was suffering from hypertension and diabetic mellitus for the last 5 years, which is baseless according to him. The complainant in support of her claim has produced copy of the proposal form, records of Chandrakala Hospital, K.R.Hospital and death summary issued by the Apollo BGS Hospital, Mysore and copies of correspondences that took place between herself and the opposite party. The opposite party has also produced copies of the documents and letters similar to the documents produced by the complainant. The counsel for the complainant has filed written arguments. Heard the arguments of the counsel for the opposite party and perused the records.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the opposite party proves that deceased Shankar was suffering from type II diabetic and hypertension prior to the inception of the policy had suppressed that fact in the proposal form given for issue of a policy on his life and therefore is justified in repudiating the claim of the complainant?<br /> 2. To what relief the complainant is entitled to?<br /> 5. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- The fact that the deceased Shankar had taken an insurance policy on his life for an assured sum of Rs.1,00,000/- with the maturity dated 01.03.2017 and had paid three premiums and the policy was in force as on his death on 04.10.2007 is not disputed by the opposite party. Therefore, we have no reservation to hold that the deceased had an insurance policy on his life as on the date of his death with the maturity value of Rs.1,00,000/-. <br /> 7. The opposite party without disputing the date of death of the deceased admitted to have repudiated the claim of the complainant when she approached them claiming the insurance amount on the ground of non-disclosure of material facts in the proposal form given by the insured for issue of a policy. The opposite party in specific words has stated that the insured prior to the issue of policy was type II diabetic and hypertensive patient and that was not disclosed in the proposal form, therefore it amounts to serious non-disclosure of material facts, which is a violation of terms and conditions of insurance policy. The complainant who is a wife of the deceased has denied that her husband, the insured had any diabetic or hypertensive problem prior to the submission of the proposal form and issue of policy. As evident from the documents and the correspondences letters placed in the file, the complainant submitted a claim form to the opposite party with all hospital records and requested the opposite party to pay the insurance amount. It is on this claim of the complainant, the opposite party through his letter dated 31.12.2007 requested the complainant to furnish information of the exact date of diagnosis of diabetics and treatment taken since then and to submit supporting medical documents. The opposite party also requested the complainant to furnish information of exact date of diagnosis of hypertension and treatment taken since then and also to produce documents in support of it, on which the complainant addressed a letter to the opposite party on 08.02.2008 stating that her husband had no diabetics earlier to his admission to Chandrakala Hospital as he was extremely exhausted and further stated that insured was not treated for any such disease earlier and she do not have any documents in that regard. On receipt of such reply from the complainant, the opposite party through his letter dated 14.02.2008 repudiated the claim of the complainant, the relevant portion is as under:<br /> “As per follow up sheet of Sri Krishna Rajendra Hospital dated 03.10.2007 the life assured was a known diabetic and hypertensive since 5 years. In the proposal form dated 22.02.2007 the deceased life assured under the declaration on good health had marked “NO” against the specific questions asked in respect of medical condition, this amounts to serious non-disclosure of material facts, which is a violation of the terms and conditions of the insurance policy”.<br /> The opposite party in the same letter further expressing his regrets in not accepting her claim. <br /> 8. As evident from the proposal form submitted by the insured, no doubt he has in connection with declaration of good health has declared as if he was not suffering from any ailments including diabetes, hypertension, etc., At the same time we should also see that the opposite party has not pointed out any documents or materials to prove that the insured had been diagnosed with diabetics and hypertension at any time prior to 03.10.2007. It is seen for the first time on 03.10.2007, the insured was taken to Chandrakala Hospital and Institute of Medical Research, Mysore where he had been diagnosed as having type II diabetic mellitus with hypertension, Hyhypeertenia with acute pulmonary oedema, LVF and therefore he was referred to K.R.Hospital, Mysore for further treatment noting down that ECG of insured as normal. Then the patient was taken to K.R.Hospital, Mysore on 03.10.2007 there at the time of admitting the insured in that hospital in the follow up sheet it is written as under:<br /> “This patient is a known diabetic and hypertension since 5 years and was suffering from breathlessness, then the insured was referred to Apollo BGS Hospital for further management”<br /> The patient was admitted on 04.10.2007 in the Apollo Hospital, where he died on the same day due to cardiac arrest at 4.15 am. The death summary issued by the Apollo BGS Hospital contain that initial reports received from them shown severe hyponaterma and top – T positive. The opposite party basing on these records of 3 hospitals have concluded as if the insured was suffering from diabetics and hypertension for the past 5 years and obtained the policy by suppressing that material fact. As already pointed out by us above, except that the insured was diagnosed as diabetic and hypertensive in Chandrakala Hospial on 03.10.2007, absolutely we find no records or evidence to prove that the patient hade undergone any check up, or got diagnosed with these abnormalities prior to 03.10.2007. Even the letter of Chandrakala Hospital do not say since when this insured was suffering from those abnormalities except showing that he was diagnosed with those abnormalities, then when the patient was referred to K.R.Hospital, Mysore, there the doctors finding that the patient needs to be referred, to have further management, addressed a letter to the Cardiologist Higher Centre on 03.10.2007. In that letter it is shown as if the patient is a known diabetic and hypertensive past 5 years. It is not clear or is understandable the basis for this hospital authorities to say that the patient was a diabetic for the past 5 years. The opposite party relying upon this writing of the hospital authorities of K.R.Hospital have bent upon canvassing as if the insured was a diabetic patient since 5 years, and that he had given to proposal to them on 22.02.2007 suppressing this fact. When the insured at no time had undergone check up or treatment and made known of his ailments and his ailments were not within his knowledge as on the date of filling up the proposal form that is on 22.02.2007, the question of he suppressing his ailment do not arise. It is not the case of the opposite party that the deceased prior to 03.10.2007 had undergone any tests or was under treatment for those ailments and that those ailments were within his knowledge, but has suppressed those material facts in the proposal form. The documents placed before us do prove, it is only for the first time on 03.10.2007 the ailments of the deceased came to light. Thus the entry made by the authorities of K.R.Hospital that he was suffering for last 5 years is found to be baseless and no authority or documents in support of it. Even if there were to be some basis for such an entry made by the authorities of K.R.Hospital, the opposite party could have got those documents produced or even examine the author of the letter of K.R.Hospital to elicit the basis on which they have shown that the deceased was diabetic patient for last 5 years. But, no such attempt or efforts are made by the opposite party to substantiate it. Therefore merely because in a letter of the K.R.Hospital an entry is made that the insured was a patient of diabetic for past 5 years is not conclusive proof to prove that the deceased had pre-existing disease at the time of inception of the policy. The counsel appearing for the complainant in this regard relied upon 2 decisions reported in II (1998) CPJ page 274 of Punjab State Consumer Disputes Redressal Commission, Chandighar and II (1998) CPJ page 275 of Madhyapradesh State Consumer Disputes Redressal Commission. The decision of Madhyapradesh State Commission is directly on the point that supports the case of the complainant. Therefore considering the defense of the opposite party from any angle, it cannot be sustained as it has failed to prove the pre-existing disease and their total reliance upon this K.R.Hospital letter dated 03.10.2007 which is not based on any material facts for such a noting in a casual way, cannot be a substitute for the proof and on the basis of which, the claim of the complainant cannot be denied. As the result, we hold that the opposite party has caused deficiency in its service and thus by answering point no.1 in the negative, hold that the complainant is entitled for the relief and pass the following order:-<br /> ORDER<br /> <br /> 1. The Complaint is allowed.<br /> 2. The opposite parties is directed to pay the insurance amount of Rs.1,00,000/- with all other accrued benefits to the complainant within 60 days from the date of this order, failing which it shall pay interest at 9% p.a. from the date of this order till the date of payment.<br /> 3. The opposite party shall also pay Rs.5,000/- towards damages for mental agony and anxiety of the complainant within 60 days from the date of this order, failing which it shall pay interest at 9% p.a. from the date of this order till the date of payment.<br /> 4. The opposite party shall also pay Rs.500/- to the complainant being the cost of this complaint.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 31st December 2008)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />