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
Tuesday the 23rd day of September, 2008
C.C.No. 24/08
Between:
D. Ayyapu Reddy,S/o Siva Reddy,
R/o.H.No.2-39, Koratamaddi Village, Gadivemula Mandal,Kurnool District.
… Complainant
Versus
- Baja Allianz Life Insurance Company Limited,
Represented by its Branch Manaer / office in charge,
2nd Floor, S.V.Complex, Kurnool.
2. Bajaj Allianz Life Insurance Company Limited,Represented by its Regional Manager, Pune,
GE Plaza, Air port Road, Yerawada, Pune - 411006.
… Opposite parties
This complaint is coming on this day for orders in the presence of Sri. M. L. Sreenivasa Reddy, Advocate, for the complainant, and Sri. N. Nanda Kishore , Advocate, for the opposite party No.1 and opposite party No.2 is called absent set exparte 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.24/08
1. This case of the complainant is filed U/s 12 of C.P.Act, 1986 seeking a direction on the opposite parties to pay to the complainant Rs.50,000/- assured amount with all benefits and 18% interest p.a from the date of demise insured , Rs.15,000/- as compensation for mental agony occurred at the deficient conduct of the opposite parties , Rs.10,000/- as cost alleging the complainant as nominee of D. Eswar Reddy who has obtained Allianz Bajaj Unit Gain Life Insurance Policy bearing No.14744451 from the opposite party No.1 on 17-1-2006 for an assured sum of Rs.5 lakshs and died on 18-10-2007 at about 9-00 p.m in sleep and the claim laid by the complainant was repudiated alleging falsely that the policy holder not disclosed as to his pre existing Asthma in the proposal form dated 4-1-2006 and the opposite party No.1 is Kurnool Branch doing the business of opposite party No.2.
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant while the opposite party No.2 remained exparte by its abstention to the case proceedings , the opposite party No.1 contested the case through its counsel , filling written version denying any of its liability to the complainants claim and seeking dismissal of the complainants case with cost.
3. The written version of opposite party No.1 even though admit its privy with the insured under alleged policy , but denies any unfair ness in repudiation of the claim alleging intentional and deliberate suppression of material facts as to health of insured in proposal form and on account of the said deliberate suppression of its information as to his previous health voids the very contract of insurance as the contract of insurance is based on the principle of “ Uberrimae Fides ‘” and the repudiation is based on through verification of all facts which are confirmed and supported by medical record and other allied material and there by any deficiency on its part to bear any liability to the complaints claim and so seeks for dismissal of complaint with exemplory cost.
4. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 and A2 and the sworn affidavit of the complainant in reiteration of complainants case , the opposite party side has taken reliance on documentary record in Ex.B1 and B2 and the sworn affidavit of the opposite party No.1 in reiteration of its defence.
5. Hence the point for consideration is whether the complainant has made out any deficiency on the part of the opposite parties in repudiation of claim and there by the liability of the opposite parties to the complainants claim.
6. The Ex.A1 and A2 are the repudiations of the complainants claim by the opposite parties on the reason of non disclosure of material facts as to the insured ailment of Asthma since 2005 and the fact insured taking treatment of it in answer to the question No.14 c , 14 i , 14 m of proposal form dated 4-1-2006 .
7. The complainant except denying everything that was alleged by the opposite parties as to said non discloser of earlier history of insureds asthma ailment and treatment for it, did not place any such cogent material to discredit the said conditions of the opposite party . Not did it filed any death certificate of the insureds envisaging the demise of said insured as natural.
8. While such is so , the Ex.B2 is taken reliance by the opposite parties in support of its contentions as to the ailment of asthma to Eswar Reddy and his undergoing treatment further prior to obtaining the insurance policy and as to non discloser of said earlier history of ailment and treatment for said asthma is concerned in the proposal form No.14744451 dated 4-1-2006 .
9. The EXB2 is the case sheet of Government General Hospital, Kurnool pertaining to D. Ewar Reddy. At page No.21 of Ex. B2 it is stated that the complaint was “ Breathlessness and Fever and obdominal pain since 5 days and wheeking present “ and as to previous illness is concerned “ No H/O (History of ) Hypertension and D/M and Epliepsy H/o asthma . The period of treatment of insured as in patient No.2968 was from 14-12-2005 to 22-12-2005.
10. The policy was said to have been obtained by the insurer on 17-1-2006 . Any policy of the insurer was filed by any of the parties to this case proceedings to know the date of proposal form which must have been furnished by the insured answering the information required there in for issual of policy insurance . While such is so with the written version of the opposite party No.1 allege the proposal form submitted by the insured dates to 4-1-2006 .
11. The Ex.B1 is the Xerox of the proposal form for life insurance pertaining to D. Eswar Reddy signed by D. Eswar Reddy on 4-1-2006 in token of the information furnished there in relating to alleged policy No.14744451 . The Pg.No.3 of said Ex.B1 at Sl.No.14 under caption “ Have you ever been treated or currently under treatment for any of the following conditions places several questions which are as many as 13 covering both present and past ailments and treatment undergone and as to good health. All of them were answered by its proposer D.Eswar Reddy in negative as if he was or having any such ailments to him .
12. The perusal of the contents of Ex.B1 in visa-vis to the contents of the Ex.B2 indicates the non mention of the ailment and treatment the insured undergone vide Ex.B2 , in answer to question No.14 of Ex.B1 .
13. The duration between the treatment undergone by insured vide Ex. B 2 and the proposal form insured singed on 4-1-2006 being not with a gap of more than fort night even , the said non discloser appears to be with any bonafidee reason or cause and there by amounting to intentional and fraudulent suppression of material fact attracting the effect of Sec.45 of Insurance Act as to the said policy of insurance issued to the insurer on the basis of Ex.B1 answers taking them in utmost good faith on the principle of Uberrimae Fides.
14. Therefore the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Mr. S. Abitha Vs. LIC of India reported in 2003 CPJ 468 (CP) NCDRC holding non attraction of proviso to Sec.45 Insurance Act in the absence of any material on record as to infer intentional and fraudulent suppression of facts is having any relevant application to the facts and circumstances of this case.
15. The Hon’ble Supreme Court in Mathoolal Naik Vs LIC of India reported in AIR 1962 SC 814 holds their where contract of life insurance entered into as a result of fraudulent suppression of material facts by policy holder the said policy is vitiated and person holding assignment of policy cannot claim benefit of contract as assignee cannot stand on better footing than the insured is having relevant application to the facts and circumstances of this case where non-discloser of pre-existing ailment of the deceased policy holder is apparent.
16. The Hon’ble A.P.High Court in Seelam Ramanamma Vs. Divisional Manager, LIC of India, Machilipatnam reported in AIR 2000 AP Pg.350 holds the claimant - widow of insurer - not entitled to amount of insurance policy when the deceased insured suppressed factum of suffering form earlier decease florosis much earlier to policy and in this case the symptoms of pre-existing ailment of deceased policy holder is apparent the said decision is having every relevant application to the facts and circumstances of this case.
17. The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in LIC of India Central C.8 Mumbai and others Vs. Smt. Vijayachopra reported in AIR 2008 (NOC) pg. 2059 ( NCC) holds insured not entitled to sum assured when he obtain policy despite the fact that he was suffering from cancer which was deadly decease , suppressing its discloser in proposal form and repudiation of claim by insurance company and so this decision bears every relevant application to the facts and circumstances of this case.
18. The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Senior Divisional Manager LIC of India Vs. Smt. Gangamma and another reported in 2002 (3) CPR Pg.24 (NC) & 2002 CPJ Pg.56 NC set aside the order of State Commission allowing the claim when the repudiation of claim was made by insurance company on proof of suppression of material facts by record, as most good faith is tenet of insurance company .The applicability of this decision to this case remains relevant as the suppression of pre-existing ailment of the deceased policy holder was proved by the opposite party in reference to Ex.B2.
19. The Hon’ble, National Consumer Disputes Redressal Commission New Delhi in Pammi Devi Vs LIC of India Vs and others reported in III (2003) CPJ Pg.15 (NC) justified the repudiation of claim when information of prior surgery was concealed not accepting the contention that the deceased was examined by the Medical Officer of the LIC on the ground that when person withholds information Doctor would not know it and so this decision holds its relevant application to the facts and circumstances of this case in justifying the repudiation .
20. The Hon’ble, National Consumer Disputes Redressal Commission New Delhi in LIC of India Vs. Smt. Minu Khalita reported in III ( 2002) CPJ Pg.10 (NC) holds no deficiency in service in the act of repudiation of claim by insurer when insured not disclose the fact of his suffering from cancer and hospital treatment for it and so this decision also finds relevant application to the facts and circumstances of this case where concealment pre-existing ailment of deceased policy holder was established by the opposite party in justification of repudiation.
21. The perusal of Ex.B1 proposal form signed by the insured indicates that the said insured D.Eswar Reddy has singed the said Ex.B1 after understating all that is mentioned there in and said fact was witnessed by one K. Ramalingeswara Reddy. Unless said K. Ramalingeswara Reddy gives any evidence in contra to it the positive inference of the above only stands to hold that the information furnished by the insured to Ex.B1 was after he understood the same . Therefore the decision of A.P.Hon’ble High Court in Branch Manager LIC of India and other Vs. Ambati Lakshmma reported in 2003 ACJ 2131 holding repudiation improper in the absence of evidence that policy holder subscribed his signatures to the answers after understanding the questions - is of any avail for its appreciation and adoption to the facts and circumstances of this case as they are otherwise .
22. Hence from the above what appears is that the insured has given his answers in proposal form to the questions in perfect understanding of them being also witnessed by K. Ramalingeswara Reddy and the non mention of his ailment of asthma and treatment taken for it in the answers to the questions in the proposal form is remaining nothing but an intentional and deliberate concealment and withholding of such information with an ulterior intention . When such is the nature of the non discloser of his pre existing ailments and treatments in answers to the questions in proposal form the insured is remaining guilty of intentional suppression and concealment of material fact as to his pre existing ailments and treatments and there by the said contract of insurance is remaining vitiated U/S 45 Insurance Act and is within the scope of proper repudiation as held in decisions stated in para Nos. 14 to 20 .
23. The complainant side has not filed any material as to the cause of death insured . Hence there is any possibility to asses as to the nexus with the alleged earlier ailment of the insured with the real cause of demise of policy holder. Therefore the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in LIC of India and other Vs. Dr. P.S .Agrwal . Distt . Hardwar reported in 2004 (3) CPR 152 NC , decision of Hon’ble Rajasthan High Court in Parpati Bai Vs. LIC of India reported in 2006 ACJ 241 , the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in LIC of India Vs. Smt. Tejal Ben Kananbhai Patel reported in 2007 (1) CPR 249 (NC) holding repudiation not justified in the absence of evidence to show the nexus with the alleged deceased and cause of death – remains of any avail of its appreciation and application to the facts and circumstances of this case.
24. The learned counsel for the complainant urges that the medical certificate (Ex.B2) is to be proved by the production of medical evidence either directly before the court or by way of affidavit or examining them on commission and so a mere marking of document does not amount to proof of document and takes reliance on the decision of Hon’ble A.P.High Court in United Insurance Company Limited , Hyderabad Vs. Mahammad Khaja Rasool Syed @ Mohammad Khaja Main Shaik and another reported in 2003 (5) ALD 162 . But the said decision does not appear to be of having any relevant application to the facts and circumstances of this case firstly as there was any objection from the complainant side when the Ex.B2 was marked and proof positive of its existence and contents there in reference to the original summoned from the concerned hospital is sufficient in summary enquiry proceedings , secondly as the said case in which the Hon’ble High Court held as such is a case under Motor Vehicles Act and the documents so produced and merely marked therein was by the very claimant there in without resorting to any proof of the same when obliged to prove it in the denial of its bonafidees by the other side.
25. Taking reference to the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in LIC of India Vs. Badri Nageswaramma ( deceased ) and others reported in 2005 (5) ALT (NC) CPA it is submitted that the burden lies on the insurance company to prove that the insured suppressed material fact regarding his health by examining said medical officer if the policy holder was examined by medical officer of the insurance company at the time of proposal and certified that insured is having good health . But the said decision appears to be of having any relevancy and application to the facts and circumstances of the case firstly as there is any material on record that the insured policy holder was examined by the medical officer of the insurance company , secondly as in the case cited, nothing was on record to establish that the insured was suffering with T.B decease on the date of the proposal, and the doctor certificate produced by corporation did not show that the deceased know on the date of the proposal that he was suffering from any ailment and in the present case ,from the circumstances on record the insured policy holder is in know of the treatment he has undergone vide Ex.B2 which prima-facie envisages the ailment with which the insured suffered prior to the date of proposal .
26. Taking reference to the decision of Hon’ble Highcourt of Rajasthan at Jaipur in LIC of India Vs District Permanent Lok Adalat and another reported in 2006 ACJ 100 , the learned counsel for complainant submits that the LIC is duty bound to cross check the information furnished by the person intending to take policy and the failure to check information is lapse or lacuna on the part of the LIC and so LIC should pay the assured amount after the death of assured and LIC is not permitted to raise a plea that the deceased / assured has not disclosed about his illness at the time of taking policy . But from the perusal of said decision it appears that the learned counsel misunderstood the said decision and misrepresenting as to it as in the said decision the duty on the LIC to counter check the material information disclosed by the person intending to take policy if discloses the said material information to the medical officer and then only it will amount to lapse or lacuna on the part of the LIC and there by would not permit the LIC to take a plea of non discloser by the insured proposal . Therefore the said decision appear to be of having any relevancy of its application to the facts and circumstances of this case.
27. In sum up of the above discussion of facts and legal position as there is a clear suppression of the material particulars as to the insured’s pre existing ailments and treatments undergone in the proposal form submitted for contract of insurance and the honest discloser of everything there in will be taken in utter good faith and the utter good faith is the tenet of the contract of insurance and otherwise the very contract of insurance is void-abnitio as per the provisions of Sec.45 Insurance Act and the perusal of Ex.B2 in visa-vis to the answers given to question No.14 of Ex.B1 indicates the clear suppression on the part of the insured of his pre existing ailment and treatment covered in Ex.B2 , there appears any deficiency or in improperness on the part of the opposite party in the repudiation of complainants claim for the assured amount of insurance of her deceased husband as his nominee .
28. consequently, there being any merit and force in the case of the complainant creating any liability on the opposite parties for the complainants claim, the case of the complainant is dismissed with cost.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 23rd day of September, 2008.
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. Repudiation letter dated 14-12-2007 received by the complainant from opposite party No.2 along with cover.
Ex.A2. Repudiation letter dated 14-12-2007 received by the complainant from opposite party No.1 along with cover
List of exhibits marked for the opposite parties:
Ex.B1. True copy of proposal form in 4 pages.
EX.B2. Case sheet of Gouri Gopal Hospital pertaining Eswar Reddy.
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 :
Copy was dispatched on :
