Andhra Pradesh

Chittoor-II at triputi

CC/55/2013

Shaik Mohammed Azad,S/o. Hasan Basha, - Complainant(s)

Versus

Bajaj Allianz Life Insurance Co. Ltd., By its authorized signatory, - Opp.Party(s)

G.Ramaiah Pillai

04 Apr 2015

ORDER

Date of first filing:17.09.2013

Date of first disposal:24.04.2014

Matter remanded and case restored on :08.12.2014

Date of disposal:04.04.2015

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

SATURDAY THE FOURTH DAY OF APRIL, TWO THOUSAND AND FIFTEEN

 

C.C.No.55/2013

 

Between

 

Shaik Mohammed Azad,

S/o. Hasan Basha,

Muslim, Aged 39 years, un-employee,

19-8-122B, SBI Colony,

Tirupati,

Chittoor District., A.P.                                                                     … Complainant

 

 

And

 

1.         Bajaj Allianz Life Insurance Co. Ltd.,

            By its authorized signatory,

            G.E.Plaza, Airport Road,

            Yerawada,

            Pune – 411 006.

 

2.         Bajaj Allianz Life Insurance Co. Ltd.,

            By its authorized signatory,

            392, GPR Complex, 3^rd Floor,

            Tilak Road,

            Tirupati.                                                                                 …  Opposite parties.

 

 

            This complaint coming before us for final hearing on 18.03.15 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.G.Ramaiah Pillai, counsel for the complainant, and Sri.M.N.Mani, counsel for the opposite party No.2, and opposite party No.1 remained exparte, and  having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

 

            This complaint is filed under Sections-12 and 14 of C.P.Act 1986, by the complainant for the following reliefs against the opposite parties 1 and 2 1) to direct the opposite parties to pay the assured sum of Rs.2,50,000/- after deducting the amount paid Rs.64,311/- 2) to direct the opposite parties 1 and 2 to pay Rs.50,000/- for causing mental agony by repudiating the claim and 3) to direct the opposite parties 1 and 2 to pay Rs.2,000/- towards costs of the litigation.  

            2.  The brief averments of the complaint are:-  that Smt.S.Shirin Banu, wife of the complainant insured her life with the opposite parties insurance company for Rs.2,50,000/- on 09.04.2009 along with proposal form at Tirupati. The proposals were accepted by the opposite parties. The policy No.0125729136 was issued in favour of the insured. The proposals were accepted on 14.04.2009. The complainant is the nominee of the insured. The annual premium is Rs.25,000/-. The insured Shirin Banu died on 22.12.2012. Subsequently, the death claim was made by the complainant on 23.02.2013 requesting the opposite parties to pay the sum assured Rs.2,50,000/- but the opposite parties 1 and 2 did not give response. The complainant got issued e-mail on 13.04.2013 to settle the claim. On the same day i.e. on 13.04.2013, the opposite parties have intimated through Yahoo mail that the claim was repudiated due to non-disclosure of material facts and as a result the opposite parties have refunded Rs.64,311/- by crediting the same into the account of the complainant. The opposite parties also informed the complainant to prefer a claim to Claims Tribunal, if he is not satisfied with the amount refunded. On 03.06.2013, the complainant preferred Claim Review Petition through his lawyer on the same day i.e. on 03.06.2013. Opposite party No.1 while sending reply from Bangalore to the notice dt:17.04.2013 got issued by the complainant, stated that the claim is repudiated for non-disclosure of material facts and enclosed relevant copies of insurance policy, proposal form and declaration form etc. Complainant noticed that the signature of the insured in declaration form was not that of his wife and it is a forged one. The complainant got issued 2^nd notice stating that he is ready to refer the signature of the insured on the declaration form to scientific expert to find out the genuineness of the signature. Opposite parties did not give reply and did not choose to pay the sum assured. Hence the complaint.

            3.  Notice served on opposite party No.1 on 11.11.2013 but it remained absent through out. Notice on opposite party No.2 was served through local dispatch on 25.10.2013. Opposite party No.2 filed written version on 24.01.2014 contending that the insured has not disclosed the fact that she was suffering from ailment prior to submission of declaration of good health  towards renewal of the policy dt:13.01.2012. The insured was under obligation to disclose his / her health condition in DGH (Declaration of Good Health) form at the time of revival of the policy. Had she disclosed the same, the company would not have revived the policy. The insured is guilty of suppression of facts. Opposite party No.2 covered the risk for the deceased wife of complainant solely on the basis of declaration made by her in the DGH form submitted to opposite party No.2 towards revival of the policy. In case of any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the declaration of Good Health Form is material for the purpose of entering into a contract of insurance.

            4.  After receiving the death claim, the opposite party made several investigations and various medical certificates were secured confirming that the deceased insured was under hospitalization during the period from 13.04.2011 to 22.04.2011 for Ascites and Koch’s with Bilateral Ovarian Cysts. Later from 28.04.2011 to 02.05.2011 as known case of carcinoma Ovary. The complainant approached the Forum with unclean hands and suppression of facts, as such he is not entitled to the reliefs sought for and prays the Forum to dismiss the complaint with costs.

            5.  Chief affidavits of P.W.1 (complainant) and R.W.1 (opposite party No.2) were filed. Written arguments of both parties filed and Exs.A1 to A9 for the complainant and Exs.B1 to B4 for opposite parties were marked.

            6.  Now the points for consideration are:-

            (i)  Whether the repudiation of claim is justified?

            (ii)  Whether the complainant is entitled to the reliefs sought for?

            (iii)  To what relief?

            7.  Point No.(i):-  Before answering this point, it is pertinent to mention a few facts of the case. Shirin Banu, wife of the complainant insured her life for Rs.2,50,000/- with the opposite parties insurance company on 09.04.2009 along with proposal form. The same was accepted on 14.04.2009 by the opposite parties and issued policy No.0125729136 in favour of the complainant. Admittedly, the premiums for the years 2009, 2010 and 2011 were paid. The policy was in force till the date of death of the insured Shirin Banu on 22.12.2012. Annual premium to be paid by the insured is Rs.25,000/-. Admittedly, the complainant is the nominee of the insured. The complainant when made the claim after the death of insured Shirin Banu, the opposite parties have taken objection that the insured did not furnish the material facts about her health. Further the claim was settled for Rs.64,311/- as against Rs.2,50,000/- and the rest of the claim was repudiated on the ground that Shirin Banu was hospitalized during the period from 13.04.2011 to 22.04.2011 (10 days) for the complaint of Ascites and Koch’s with Bilateral Ovarian Cysts and again from 28.04.2011 to 02.05.2011 as known case of Carcinoma Ovary (for 4 days).

            8.  Shirin Banu insured her life on 09.04.2009 and proposal form was also submitted on the same day, it was accepted by the opposite parties on 14.04.2009. Insured also submitted declaration of good health form to the opposite parties and the same was accepted and the policy was revived. It is not the case of opposite parties that the policy was lapsed prior to the death of insured, as such it was revived / renewed. Once the policy was issued, it should be continued till the maturity period is over if the premiums are paid regularly. Therefore, question of revival of the policy does not arise. The above referred treatment period in respect of the insured is about 3 years after the policy was issued. Detecting any disease about 3 years subsequent to taking life insurance policy will not help the insurer. In some cases the disease Carcinoma may not be diagnosed at the initial stage, as such it is not proper to blame the insured on the ground that she was not mentioned about her good health or about her disease prior to taking policy in the proposal form or declaration of good health form. The opposite parties have filed some medical record under Ex.B3 at Page 16 under the head of Medical Attendant Certificate issued by Dr.S.Surya Sen on the printed form of the opposite party, in which it was mentioned at column.4 as multi organ failure as primary cause of death, at column.5 Carcinoma Breast + Recurren Carcinoma Ovary Intestine obstruction as the secondary cause of death, under column.6 details of illness are mentioned Ca.Breast + Recurren Ovary, at column.7 duration of ailment is mentioned as one year nine months, at column.8 date of first consultation is 04.12.2012 with complaint of abdominal distension. The history reported at the time of consultation mentioned as abdominal pain and vomiting. Even according to this Medical Attendant Certificate, the insured complained abdominal pain and vomiting on the date of consultation on 04.12.2012 in Srinivasa Super Specialty Hospital, Tirupati. It was not specified whether Dr.Surya Sen is the panel doctor for the opposite parties or maintaining a private hospital and it was also not mentioned what is the need of giving such Medical Attendant in the format of opposite parties. If multi organ failure as observed by the doctor is true, how the insured will survive till 22.12.2012. As per page.5 Certificate of Death issued by Municipal Corporation, Tirupati, Shirin Banu died on 22.12.2012, even at page.16 of  Ex.B3 Date and Time of Death was mentioned in column.3 as 22.12.2012 at 02.00 a.m., whereas at page.19 Case Summary issued by Dr.S.Suryasen, Srinivasa Super Specialty Hospital, Tirupati, it was mentioned as patient died on 22.02.2012 at 02.00 a.m.. Whether the said medical records issued by Srinivasa Super Specialty Hospital is true? in mentioning the date of death of Smt.Shirin Banu as 22.02.2012 is to be suspected.

            9.  Apart from these records, the opposite parties also filed Ex.B4 Phantom Detective Agency report. It was mentioned at page.3 that it is the known case of cancer and was under treatment at different hospitals in Hyderabad and at Tirupati and died due to the same while undergoing treatment in the hospital. Another medical record from Asian Institute of Gastroenterology at page.8 of Ex.B4 shows that she was admitted in the hospital on 13.04.2011, Date of Surgery on 19.04.2011 and Date of Discharge 22.04.2011, under the head of visit summary it is mentioned that patient presented with history of abdominal distension since 2 months. She complains of irregular menstruation. No history of abdominal pain / vomiting / fever / altered bowel habits / jaundice / G1 bleed. No history of diabetes / hypertension / tuberculosis / any previous surgeries . Surgery: Diagnostic Laparoscopy and biopsy. Thus it is clear even by 22.04.2011 no symptoms of cancer was diagnosed by the doctors. Another medical record issued by Omega Hospitals, Hyderabad, shows that Date of Admission 28.04.2011, Date of Discharge 02.05.2011. When the medical record at page.8 issued by Asian Institute of Gastroenterology shows that no symptoms of cancer by the date of discharge on 22.04.2011, the medical record issued by Omega hospital at page.11 mentioned under the head of case history as known case of Ca.Ovary-IIIc, admitted for chemotherapy. It further shows that treatment and medications for pre-existing conditions like diabetes, hypertension, thyroid problems, cardio – respiratory diseases, neurological problems and other chronic ailments should be continued, as if Shirin Banu was suffering from such diseases.

            10.  The opposite parties having accepted the proposal form submitted by Shirin Banu (deceased) on 09.04.2009 and also issued policy in her favour and having collected the premiums for 3 years @ Rs.25,000/- per annum, when she died and death claim was made by the nominee (complainant hereunder) raised all these objections about the health of Shirin Banu stating that she was suffering from pre-existing ailments and the same was not mentioned in the DGH form. The deceases that were mentioned in Ex.B3 such as Carcinoma Breast + Recurren Carcinoma Overy were diagnosed in the year 2012 i.e. 3 years after the policy was issued. The opposite party with a great difficulty and thorough investigations made by it secured all the medical records and repudiated the death claim. Though the opposite parties have relied on Exs.B3 and B4, those documents were not proved. Simply filing documents without there being any proof such documents cannot be accepted. The opposite parties are expected to prove the documents i.e. medical records filed under Exs.B3 and B4 by examining the doctors, who treated the insured late Shirin Banu. In insurance cases, since upon issuance of insurance policy, insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by policy, instead of construing the terms and conditions of the policy, the opposite parties herein, seems to be searching the grounds to repudiate the claim on the demise of the insured, which is not fair.

            11.  Another important aspect for consideration is as on the date of submission of proposal form and application for policy she was not suffering from any such ailment even according to the medical records filed by the opposite parties. Therefore she was not expected to anticipate any disease and mention the same in DGH form.

            12.  In this regard, the learned counsel for the complainant relied on a decision reported in IV (2014) CPJ 580 (NC) – ICICI Prudential Life Insurance Company Ltd. Vs. Veena Sharma & Anr.   In this case, Mrs. Veena Sharma had filed 3 separate revision petitions relates to 3 insurance policies taken by her late husband. In all the 3 cases, the complaint was allowed by the District Consumer Disputes Redressal Forum, Panipat. Appeals against the same have been rejected by Haryana State Consumer Disputes Redressal Commission. Therefore, ICICI Prudential Life Insurance Co. Ltd has challenged the same in these three separate revision petitions before the National Commission. While allowing the complaint District Forum held that opposite party had totally failed to prove its case with any cogent and credible evidence to show that the insured had knowingly suppressed the fact that he had suffering from Diabetes Mellitus prior to submission of the proposal form. It observed that in the present case only question is to be determined whether the insured has knowingly suppressed the material facts at the time of submitting the proposal form. Onus to prove contention of suppression was on the Insurance Company. In order to prove his case opposite parties filed the affidavit of Senior Manager Ex.RW1/A in her affidavit she only deposed that statement made in all the paragraphs of the reply are true and correct. Nothing else has been deposed with regard to ailment of deceased. Opposite party only relied on medical treatment record Ex.R3. Counsel of the opposite party argued that in Ex.R3 in-patient history it is written A known patient of diabetes mellitus type-2 was admitted. Patient Deepak was admitted on 13.04.2010 and he was discharged on 24.04.2010, according to Ex.R3. Except this document opposite party did not produce any other record of treatment of insured. Their Lordships observed that mere production of Discharge Card was not enough. Opposite party / Insurance Company was also required to prove with credible evidence that the complainant was suffering from the pre-existing disease and had knowingly failed to disclose the same. Opposite party had merely produced the Discharge Card of the Gupta Hospital which was not proved. Nor was the evidence of the treating doctor led. The law on this subject has been very clearly enunciated by Hon’ble Supreme Court in a decision pronounced on 13.09.2010. Facts in the case of Balwinder kaur Vs. Life Insurance Corporation of India, are the claim under the policy had been repudiated on the ground that the insured had given incorrect answers to the queries in the proposal form. The District forum held that the repudiation was not legally tenable as there was no evidence led in support of the certificate of the doctor who had treated the deceased and their Lordships further observed that Corporation ought to have produced evidence to prove that as on the date of filing the proforma the deceased was suffering from an identified ailment and he had intentionally written ‘no’ against items Nos. (a) to (d) of Clause 11. The Corporation had failed to prove the case and revision petitions were dismissed upholding the findings of District Forum and also State Commission. The facts of the above decision are squarely applicable to the facts of the case on hand.

            13.  The learned counsel for the opposite party relied on a decision reported in (1996) 6 Supreme Court Cases 428 Civil Appeals Nos. 6075-76 of 1995 – United India Insurance Co. Ltd Vs. M.K.J. Corporation with Civil Appeals Nos.11443-44 of 1995 M.K.J Corporation Vs. United India Insurance Co. Ltd and Others  . This decision is in respect of non-disclosure of medical facts by the insurer. Insurer also has a duty to act in good faith which oblige him to enter into the contract without concealing any material fact. Good faith is a continuing obligation in as much as even after entering into the contract no material alteration can be made by insurer in the terms of the contract without consent of the insured. Insurer’s liability would depend upon the terms of the policy. The brief facts of the case are that the respondent was holding insurance policies which provided insurance coverage for riots and strikes and malicious damages and spoilage “under spoilage item.8”. During the period covered by the policies due to the employee’s strike in the respondent factory the leather in process was damaged due to the spoilage. The respondent laid claims for damages. By operation of clause (b) of “Section 2 – Fire Policy ‘C’ of Part II – Fire Policies, Endorsements, Clauses and Warranties” as recommended by Tariff Advisory Committee constituted under Section-64(U) of the Insurance Act 1938 the insurance did not cover if loss or damage results from total or partial cessation of work or the retarding or interruption or cessation of any process of operation or omissions of any kind. Since these recommendations were made by the Advisory Committee which is a statutory authority they bound the appellant-insurer as they are an integral part of the policies. It is fundamental principle of Insurance law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing (non-disclosure) what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. The facts of the above decision are quite different from that of the facts of the case on hand. Therefore, the above decision is not applicable. The learned counsel for the opposite parties also relied on another decision reported in (2000) 1 Supreme Court Cases 66 – Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines and Another . This decision is in respect of deficiency in service. Onus of proof on whom lies, Tortious  acts and deficiency in service, distinction between journey to foreign country by air, verification of the visa of the complainant. Their Lordships held that burden of proving the deficiency in service lies upon the person, who alleges it. The facts of this decision is also not applicable to the facts of the case on hand.

            14.  In view of the above discussion, we are of the opinion that the opposite parties have failed to prove that the deceased Shirin Banu was suffering from any such ailment prior to submitting the proposal form / DGH form. That the opposite parties also failed to prove the medical records filed under Exs.B3 and B4. The also failed to prove that the insured has intentionally / voluntarily suppressed the ailments. Even according to the medical records submitted by the opposite party, insured was not having any ailment prior to or as on the date of submitting the proposal form or the application for insurance policy and even by the date of issuing policy in favour of the deceased by the opposite parties. Therefore, the repudiation orders passed by the opposite parties is not legal, as such the repudiation order is not tenable. Accordingly this point is answered.

            15.  Point No.(ii):-  to answer this point, it is pertinent to state that the deceased Shirin Banu applied for the insurance policy on 09.04.2009 along with proposal form and the same was accepted by the opposite parties on 14.04.2009. The annual premium of Rs.25,000/- was paid continuously for 3 years and on 22.12.2012 the insured was died. Thereafter, the complainant being the nominee of the insured and husband of the insured made the claim but the opposite parties, for the reasons best known made thorough enquires / investigations and secured some medical record and repudiated the claim on the ground that the insured did not disclose the material facts in the proposal form and DGH form. The insured lays her life 3 years after the insurance policy was issued, as such she is not expected to anticipate the disease and mention the same in the proposal form or DGH form. That apart the opposite parties failed to prove the medical records filed by examining the doctors who treated the deceased. It was not the case of the opposite parties that she was suffering from any such ailment prior to submitting the proposal form or DGH form. Therefore repudiation is quite illegal and not tenable in law. Therefore the complainant being the nominee of the deceased Shirin Banu is entitled to the reliefs sought for. Accordingly this point is answered.

            16.  Point No.(iii):-  In view of our holding on points 1 and 2, we are of the opinion that the complainant is entitled to the sum assured i.e. Rs.2,50,000/- after deducting Rs.64,311/- i.e. the complainant is entitled to Rs.1,85,689/-. The complainant is also entitled to a sum of Rs.10,000/- towards mental agony caused by the opposite parties by repudiating the claim and also entitled to the costs of the litigation. Accordingly the complaint is to be allowed.

            In the result, the complaint is allowed directing the opposite parties 1 and 2 to pay Rs.1,85,689/- (Rupees one lakh eighty five thousand six hundred and eighty nine only) towards the balance of the sum assured and also to pay Rs.10,000/- (Rupees ten thousand only) towards mental agony caused by the opposite parties by repudiating the claim and also to pay Rs.2,000/- (Rupees two thousand only) towards costs of the litigation. The opposite parties are directed to comply with the order within six (6) weeks from the date of receipt of copy of the order, failing which the amount Rs.1,85,689/- shall carry interest at 9% p.a. from the date of complaint i.e. 17.09.2013 till realization.

            Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 4^th day of April, 2015.

 

      Sd/-                                                                                                                       Sd/-                                             

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

PW-1: Shaik Mohammed Azad (Evidence Affidavit filed).

RW-1: Smt. G.Padama (Evidence Affidavit filed).

 

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date		Description of Documents
Ex.A1.	13.04.2013		A photocopy of E-mail letter from the Complainant to the Opposite Party-1.
2.	13.04.2013		Reply from the Opposite Party-1 enclosing repudiation letter dt:28.03.2013.
3.	17.04.2013		Legal Notice to the Opposite Parties 1 & 2 for repudiating the death claim under policy No.0125729136 and requested to furnish the copy of proposal form, policy etc., as he wants to refer the dispute to the District Forum.
4.	08.05.2013		Letter from Opposite Party -1 rejecting to furnish the required information.
5.	27.05.2013		Telegram to Opposite Party-2 to expedite the copies of policy etc.
6.	03.06.2013		A photocopy of Review petition to claim review committee, Pune.
7.	31.05.2013	Copy of letter from Opposite Party-1 as a reply to the Legal Notice dt: 17.04.2013 from Bangalore Enclosing the required forms.
8.	27.06.2013	Rejection of claim under policy with an advice to refer the dispute claims review committee if he is aggrieved.
9.	05.07.2013	2nd Legal Notice to Opposite Party-1 and copy marked to the claims review committee with a request to expedite matter soon.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Date	Description of Documents
Ex.B1.	17.10.2013	Copy of Repudiation of Death claim under policy number 125729136 on the life of Late Mrs. Syed Shirin Banu.
2.	09.01.2014	A photocopy of statement of account pertaining to deceased Syed Shirin Banu for the fund value under policy.
3.		A photocopy of The Bunch of Documents submitted by the claimant towards Death claim of the deceased Syed Shirin Banu. Page Nos. from 1 to 23.
4.		A photocopy of The Bunch of Documents pertaining to phantom Detective Agency investigation report. Page Nos. from 1 to 19.

 

 

                                                                                                                                   Sd/-            

                                                                                                                President

 

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

            Dist. Consumer Forum-II, Tirupati.

 

 

 

Copies to:-     1. The Complainant.

                        2. The opposite parties.