Date of filing : 08-07-2011
Date of order : 24-03-2015
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.165/2011
Dated this, the 24th day of March 2015
PRESENT:
SMT.P.RAMADEVI : PRESIDENT
SMT.K.G.BEENA : MEMBER
SMT.SHIBA.M.SAMUEL : MEMBER
Leelavathi, W/o.Late.Upendra.K, : Complainant
Kuntageradka, Near Welfare School,
Po.Kumbla, Kasaragod.
(Adv.K.Shrikanthashetty, Kasaragod)
Bajaj Allianz Life Insurance Co.Ltd, : Opposite party
Kanhangad.
(Adv.K.V.Jayaraj, Hosdurg)
O R D E R
SMT.SHIBA.M.SAMUEL, MEMBER
The gist of the complainant’s case is that her husband Upendra.K. was a policy holder of the Bajaj Allianz Life Insurance refer policy Nos. 00871344044 (Century Plus) commenced from 15-2-2008, No.0030137108 (Century Plus) from 7-11-2006, No.0029894242 and No.116471136 (Fortune Plus) from 26-12-2008 since he is a regular customer. The complainant is the nominee under all the policies. The subject policy of this case is No.116471136 (Fortune Plus) commenced from 26-12-2008 and the complainant’s husband paid Rs.2,75,000/- as initial premium. The complainant’s husband was aged 55 years at a time of proposal and the sum assured as per the policy was Rs.13,75,000/-. Before issuing the policy the complainant’s husband undergone various medical tests personally by the team of Doctors at opposite party to rule out any pre-existing disease. The complainant’s husband died on 24-05-2009 due to heart attack. Claims were forwarded by the complainant under different policies, the opposite party settled all the claims except the subject policy in this case reasoned for non-disclosure of material facts. The act of the opposite party amounts to deficiency in service on their part. Hence the complaint.
2. The opposite party appeared and filed version and contended that there is no deficiency on their part as averred in the complaint. According to the opposite party the complainant taken the policy from the opposite party as well as from other companies providing life insurance services like LIC Met Life, ICICI, HDFC etc by showing different annual incomes. The insurance premium amounts were not in proportionate to his income. As per the terms and conditions of the policy, the policy holder required to disclose all and true facts. However, it was noted that the proposer was diagnosed with diabetes Melitus and Hypertension as per the medical records. And the non-disclosure of the same amounts to serious suppression. The opposite party further submitted that the contract of insurance is considered as being on of “Ubrriam-fides” i.e. utmost good faith and the law imposes a greater duty on the insured to make a total truthful discloser of all the material circumstances and it is up to the company to repudiate the claim in case of non-disclosure or fraud in the proposal or personal statement. Therefore there is no deficiency on their part by repudiating the claim of the complainant.
3. Based on pleading and contention of both parties the following points arose for consideration.
1. Whether there is any deficiency in service on the part of opposite party?
2. As to relief and cost.
4. Evidence in this case consists of the chief and proof affidavit of the complainant and the Ext.A1 which is the repudiation letter issued by the op in respect of the subject policy in this case.
5. Heard the counsel for both parties in detail and perused the documents analized the evidence before us.
6. Point.No.1&2 : The main case of the complainant was that her husband was a regular customer of the opposite party and he has taken four insurance policies from the opposite party including the subject policy in this case. The subject policy No.11647136 (Fortune Plus) commenced from 26-12-2008 and her husband paid an amount of Rs.2,75,000/- as initial premium. The complainant’s husband was aged 55 years at the time of proposal and sum assured as per the policy was 13,75,000/- the complainant further alleged that before issuing the policy her husband had undergone various medical tests personally by the team of doctors of the opposite party to rule out any pre-existing diseases. The complainant’s husband died on 24-05-2009 due to heart attack. The claim forwarded by the complainant under different policies were settled except the subject matter in this case. On the reason that the deceased was under treatment of diabetic and other ailment which amounts to non-disclosure of material facts. The opposite party highly contended in his version as well as vehemently and vigorously argued before this forum that the contract of insurance is based on the principle of utmost of good faith and the law imposes a greater duty on the insured to make a total, truthful discloser of all the material circumstances included in the contract even without being asked. The deceased was asked to his annual income in clause No.1 of the proposal form and the deceased Upendra had declared it Rs.4,00,000/- which is disproportion and is the said details were known to the opposite party before issuing policy they would have taken a call not to issue the policy on this single score alone that the annual premium amount of all policies put together is more than his annual income. Besides that the complainant while cross-examination had admitted that her husband had many other life insurance policies under other companies and also received huge amount on his death. According to the opposite party the complainant’s husband suppressed the details of policy availed with HDFC Life Insurance , ICICI Prudential Life Insurance Company, LIC and Met Life in clause 7 of the proposal form the deceased was asked specific question “at present are you carrying or applying for Life, Health or Accident Insurance with this company or elsewhere” and the deceased policy holder has declared of having one policy with the opposite party and information about the other policies were conveniently suppressed by him in the proposal form. And hence as per section 9 of the policy term which was accepted by the deceased the insurance company is entitled to repudiate the claim that may arise under the policy at their discretion and no claim shall be payable. Moreover, as per the investigation conducted by the opposite party apart from suppression of financial details of the deceased the deceased had also suppressed his vital health information. He was diagnosed with diabetes melitus.
7. The Honb’ble High Court of Kerala in Writ Petition No. 22954/2008 filed by Ms. AnithaKumari V Bajaj Allianz Life Insurance Company and Ors had held that if the non-disclosure materially accept the risk undertaken by the insurance company the repudiation is valid. Therefore since the suppression of the material facts materially affected the risk undertaken by the company the repudiation doesnot suffer from any infirmity whatsoever. Since it is proved beyond doubt that there is a material suppression in the proposal form which resulted in issuance of policy and the hence the insurance contract is void and cannot be enforceable. It is also held by the Hon’ble National Commission in case of LIC V. Manasadevi-II (2003)CPJ 135 NC that the State Commission has failed to appreciate that the contract of insurance is of utmost good faith and life assured is bound to disclose honestly and truthfully all the colomns of the proposal form. However, to meet the ends of justice the Forum finds that it is reasonable to direct the opposite party to return the initial premium of Rs.2,75,000/- which is definitely a huge amount paid by the complainant’s husband. Moreover, the opposite party very well aware that the complainant’s husband had taken many policies at a time from their own company itself. Therefore the opposite party also had a duty to take reasonable care while issuing policy to the customer and to enrich themselves. It amounts a deficiency in service from the side of the opposite party.
In the result, the complaint is allowed directing the opposite party to return an amount of Rs.2,75,000/- with 12% interest from the date of commencement of policy i.e.26-12-2008 till realization. Time for compliance is 30 days from the date of receipt of copy of order.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exts.
A1.Rejection of claim under Policy of Late Upendra.K.
PW1.Leelavathi.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
