COMPLAINT FILED: 26.06.2009  

DISPOSED ON:06.01.2012.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

6^th DAY OF JANUARY 2012

       PRESENT :-SRI. B.S.REDDY                  PRESIDENT                        

                         SRI.A.MUNIYAPPA                   MEMBER              

O R D E R

SRI. B.S.REDDY, PRESIDENT

This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to pay Rs.2,50,000/- together with interest from 15.09.2008 and damages Rs.25,000/- with cost on the allegations of deficiency in service.

2.         The brief averments made in the complaint are as follows:

The Complainant is the legally wedded wife and class one legal heir of the deceased B.Shivakumar. Complainant’s husband Late B.Shivkumar on 11.09.2008 has obtained Bajaj Allianz Unit Gain Plus Gold Insurance Policy bearing No.0108320772 from OPs for a sum of Rs.2,50,000/-. The term of the policy was 20 years. In that connection he submitted necessary form and details as earliest as 18.07.2008 and also issued D.D. for sum of Rs.25,000/- dated 18.07.2008 along with cash of Rs.500/-. OPs have acknowledged the same and informed the husband of the complainant by way of compliments through their letter dated 21.08.2008. The husband of the complainant was a active business man and he was hale and healthy and he had no any identified ailments.  Neither he has a diabetics nor hyper tension OP issued the Policy bearing No. 0108320772 dated 11.09.2008. On 05.09.2008 the husband of the complainant complained of sever stomach ache, thereby he was taken for treatment to Udhbhava Hospital, No.114, 100 Feet Ring Road, BSK 3^rd Stage, Bangalore. He was admitted as inpatient for investigation and treatment. The simple ailment has magnified and leads to complication and there by he succumbed to the ailment on 15.09.2008 in the said hospital. Complainant claimed insurance amount of Rs.2,50,000/- from OPs as per the terms of the policy by furnishing all the necessary details. OP repudiated the claim of the complainant on the ground of suppression of ailments of deceased husband of the complainant. Aggrieved by the said repudiation complainant approached the review Committee for reconsideration of the claim of the complainant.  The review committee which is under the control of OP-1 & 2 illegally upheld the repudiation on 05.09.2008. At the time of admission in the hospital, complainant’s husband has informed the Doctor about getting mild stomach ache at time of indigestion in the past one month prior to 05.09.2008.  Such a pain cannot be treated as suppression of material facts. It is well known fact that even healthy man may get stomach ache that cannot be termed as suppression of material fact. By repudiation of the claim of the complainant OP failed to discharge its legal contractual obligation.  Complainant has to survive for future. In spite of repeated request OP failed to settle the claim of the complainant.  Hence complainant felt deficiency in service on the part of the OPs under the circumstances she is advised to file this complaint for the necessary reliefs.

3. On appearance OP filed version mainly contending that the death of the life assured admittedly being four days from the date of commencement of risk as per the policy; Section 45 of the Act applies with great force and complaint does not stand the test of law OP received the proposal form on 11.09.2008; On the same day after scrutiny of the proposal form in good faith the policy document was issued and encashed the DD for Rs.25,000/- paid towards premium; The policy is for sum of Rs.2,50,000/- and the date of risk commencement being 11.09.2008; OP investigated the claim and based on the findings and evidence OP rightly repudiated the claim; The cause of death as per the death certificate dated 15.09.2008 and Medical attendance certificate and certificate from hospital are directly related with the ailments suffered by the deceased prior to issuance of the Policy. Under the said grounds, non disclosure and suppression of the said facts were very material to the case and the policy issued; The certificate issued by the Dr.Prasanna and the medical documents of Udhbhava Hospital state that the deceased was suffering from Ascitis since 04.09.2008 which is prior to receipt of the proposal by OP and prior to issuance policy to the deceased;  The deceased was required to disclose and inform to OP all the relevant facts related to his health occurred prior to issuance of the policy which the deceased has miserably failed to disclose; The medical records pertaining to the deceased life assured reveal that he was suffering from Cirrhosis of lever, bilateral inguinal hernia, breathing difficulty and ascities and also portal hypertension since one month prior to date of death and prior to issuance of the policy. The deceased all of a sudden complained of severe stomach ache and admitted to Udhbhava Hospital on 05.09.2008 and that he died on 15.09.2008 are matters of record.  However the ailment due the which the deceased died are not ailments which occur suddenly; the burden to prove the same is on the complainant; The ailments specified in the medical records necessarily are chronic in nature with history of their own. The deliberate suppression of the said ailments by the deceased life assured at column No.14 of the proposal form attracts the application of Sec.45 of the Insurance Act; Hence repudiation by the OP is justified; The review Committee has rightly upheld the repudiation; The deceased breached thereby the basic principle under insurance law of “Uberimmae Fidei” i.e utmost good faith; Among other grounds OP prayed for dismissal of the complaint.

4. In order to substantiate the complaint averments, complainant filed her affidavit evidence and produced copy of  letters dated 21.08.2008, 13.09.2008, 11,09.2008 and 13.09.2008  03.01.2009, 04.05.2009 issued by the OP Insurance Policy, Premium receipt, letters of the complainant, Initial Unit Statement, Medical attendance certificate, Death certificate. The complainant also got filed affidavit of the Insurance Agent M.Manjunath. On behalf of OP Anup Kumar Verma State Operations Manager filed his affidavit and produced proposal form, Policy documents, claim statement, claim report, Medical Attendance, Certificate of Hospital treatment.

5. The complainant filed written arguments. Arguments on both sides heard.

6. In view of the above said facts the points now that arise for our consideration in this complaint are as under:

Point No. 1 :- Whether the complainant has Proved

                     the deficiency in service on the part of

                      the OPs?

     Point No. 2 :- If so, whether the complainant is

                    entitled for the relief’s now claimed?

     Point No. 3 :- To what Order?

7.         We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced.  In view of the reasons given by us in the following paragraphs our findings on the above points are:

              Point No.1:- In negative

              Point No.2:- Negative

Point No.3:- As per final Order.

R E A S O N S

8. At the out set it is not at dispute that complainant’s husband B. Shivakumar who was aged about 42 years has obtained Bajaj Allianz Unit Gain Plus Gold Insurance Policy bearing No. 0108320772, dated 11.09.2008 with regular premium of Rs. 25,000/- p.a. for the term of 20 years and sum Assured being Rs.2,50,000/-. Further it is also not in dispute that on 05.09.2008 complainant’s husband complained severe stomach ache and admitted to Udhbhava Hospital, Bangalore for treatment and succumbed to the ailment on 15.09.2008 in the said hospital.  Complainant made claim of insurance amount of Rs.2,50,000/- from the OP as per the terms of the policy by furnishing necessary details. OP repudiated the claim of complainant on the ground of suppression of ailments by the deceased husband of the complainant. Complainant aggrieved by the said repudiation approached the Review Committee for reconsideration of the claim. The review committee also upheld stand of the OP.  Hence complainant felt deficiency in service on the part of the OP and approached this forum for appropriate reliefs.

9. As against the case of the complainant the defence of the OP is that the proposal form was received by the OP on 11.09.2008 and policy was issued on the same day after encashing DD for a sum of Rs.25,000/- towards premium. The sum assured of the policy was Rs.2,50,000/-. The life assured died within four days from the date of commencement of risk, OPs have investigated the claim and based upon the finding and evidence OP has repudiated the claim. In support of the repudiation, OP has produced Medical attendance certificate and Certificate from the Udhbhava Hospital which disclose that the deceased was suffering from Ascitis since 04.09.2008

10.The Medical Certificate issued by the Family Doctor, Dr.Prasanna reveals that the Life assured was known to the family Doctor since two years. On 02.09.2008 the doctor has first examined the Life Assured. The name of the deceased/illness is shown as ‘Ascitis’ and the date of diagnosis 04.09.2008. The complainant has submitted the said Medical Certificate along with her claim application to OPs. The family physician referred the life assured to Udhbhava Hospital, BSK 3^rd Stage, Bangalore. The Medical attendance certificate issued by Udhbhava Hospital reveals that the life assured was admitted as an inpatient on 05.09.2008 in the hospital, the cause of death is shown as Hepato Pulmenary and Renal Syndrome Secondary to Cirrhosis of Liver and Portal HTN. The primary cause of death Hepato Pulmenary and Renal Sydrome cause is Secondary to Cirrhosis of Liver WITH Portal, duration of illness mentioned as since a month; symptoms of illness ‘Ascitis’. The prior health history provides nothing significant.

11. The certificate of Hospital Treatment issued by Udhbhava Hospital reveals that the nature of complaint furnished at the time of admission is swelling (R) inguinal region with pain and distension and pain per abdomen. The history is stated to have been furnished by patient himself, the duration of the complaint as reported by the patient since one month. The diagnosis arrived in the hospital is (R) Inguinal Hernia C Cirrhosis of  liver C Portal HTN.  The nature of pre-existing decease is shown as nothing significant. The life assured was under the treatment of Dr.Shankar Prasad, the nature of ailment is shown as Hepato Pulmenary and Renal Syndrome Secondary to Cirrhosis of Liver and Portal HTN.

12.From the Medical certificates of the family physician and Udhbhava Hospital where the deceased assured was admitted, it becomes clear that for the first time on 04.09.2008, the family doctor diagnosed the decease ‘Ascitis’. There is no material to show that earlier to 04.09.2008 the life assured had taken any medical treatment for any of the deceases much less the decease ‘Ascitis’. The complaint of swelling pain in right inguinal region reported by the life assured was since one month. The life assured was not aware that he is suffering from any of these diseases as on the date of submitting the proposal i.e., 09.08.2008. The date of proposal is 09.08.2008 as per the proposal form produced by OP. We are unable to accept the defence of OP that the proposal was received on 11.09.2008; for the reason that the complainant has produced the letter dt.21.08.2008 issued by Op to the life assured stating that they are happy, welcome to be part of proposal of TLC family and they have enclosed the life assured TLC membership ID Card they have admitted that they have received proposal No.58254666 proposal form, D.D.dt.18.07.2008 for Rs.25,000/-, referral agreement form and cash of Rs.500/-. Only on the basis of the seal of the Ops put on the proposal form received shown as 11.09.2008, the contention of the OP that the proposal was received only on 11.09.2008 cannot be accepted in view of above said letter sent to the life assured.

13.Though on the date of the proposal form submitted i.e., on 09.08.2008 life assured was not diagnosed with regard to any ailments, required to be disclosed in the proposal form but from 05.09.2008 when he was admitted to Udhbhava Hospital as an inpatient and the illness was diagnosed as Inguinal Hernia C Cirrhosis of  liver C Portal HTN with portal hypertension, the life assured or any of his relative ought to have informed the OP about the said illness so as to reconsider the acceptance of the proposal. In the proposal form itself the life assured has given declaration to the effect that after the date of the proposal before acceptance of the risk if any changes in the occupation or any adverse circumstances connected with the financial position or general health forth with intimation in writing would be submitted to reconsider the proposal. Similarly the first premium receipt issued on 11.09.2008 contains the same condition. Thus the failure of the life assured or any of his relatives in intimating the OP about the illness is suppression of material facts regarding the health of the life assured. It was incumbent on the part of the deceased life assured or the complainant to have informed the Ops regarding the fact of admission of the deceased life assured in the hospital. Therefore, OP was justified in repudiating the claim. The repudiation letter dt.03.01.2009 was issued by OP stating that the deceased life assured was under treatment on 05.09.2008 with history of Bilateral inguinal hernia, breathing difficulty and ‘ascities’ he was also suffering from Cirrhosis of lever with Portal hypertension from past one month, these facts known to the deceased life assured were not disclosed prior to commencement of risk dt.11.09.2008. Had these facts been disclosed the company would not have covered the risk for the policy. Under these circumstances, we are of the view that there is no deficiency in service on the part of the Ops in repudiating the claim. The complainant is not entitled for the reliefs claimed. Accordingly we proceed to pass the following:

O R D E R

        The complaint filed by the complainant is dismissed. Considering the nature of dispute there is no order as to costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her verified and corrected, and then pronounced in the Open Court by us on this the 6^th day of JANUARY-2012.)

MEMBER                                                                   PRESIDENT

Cs.