BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
F.A.No.395/2012 against C.C.No.12/2012, Dist.Forum, Nizamabad.
Between:
Smt. Salima , W/o.late Shaik Chand,
Age: 38 years, R/o.H.No.11-86,
Kumargally Village, Domakonda Mandal,
Nizamabad District. ….Appellant/
Complainant
And
Bajaj Allianz Life Insurance Company Ltd.,
GE Plaza Airport Road, Yerawada,
Pune Maharashtra. …Respondent/
Opp.party
Counsel for the Appellant : M/s.B.Sriram Karthik.
Counsel for the respondent : Mr.G.Anand Kumar
F.A.No.693/2012 against C.C.No.12/2012, Dist.Forum, Nizamabad.
Between:
Bajaj Allianz Life Insurance Company Ltd.,
GE Plaza, Airport Road, Yerawada,
Pune-411 008,
Maharashtra. …Appellant/
Opp.party
And
Smt.Salima, W/o.late Shaik Chand,
Aged 38 years, R/o.H.No.11-86,
Kumargally (Village & Mandal)
Domakonda,
Nizamabad District. …Respondent/
Complainant
Counsel for the Appellant : Mr. G.Anand Kumar
Counsel for the respondents : M/s.B.Sriram Karthik.
QUORUM: SMT. M.SHREESHA, HON’BLE INCHARGE PRESIDENT,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
WEDNESDAY, THE THIRTY FIRST DAY OF JULY,
TWO THOUSAND THIRTEEN .
Oral Order: (Per Sri S.Bhujanga Rao, Hon’ble Member)
***
These appeals are directed against the order dt.03.05.2012 of the Dist. Forum, Nizamabad Dist. made in C.C.No.12/2012.
F.A.No.395/2012 is filed by the complainant and F.A.No.693/2012 is filed by the opposite party. Since both the appeals arise out of one and the same order, dt.03.05.2012 made in C.C.No.12/2012, both the appeals are heard together and are being disposed of by this common order.
For the sake of convenience, the parties are described as arrayed in the complaint in C.C.No.12/2012.
The case of the complainant as set out in the complaint in brief is as follows:
The complainant is the wife of late Shaik Chand, who during his life time obtained insurance policy bearing no.0127217803 from the opposite party on 19.5.2009, for a term of 20 years, premium payable is Rs.99,000/- p.a. and the sum assured is Rs.4,95,000/-, towards minimum death benefits. The said policy was issued after thorough physical and clinical examination done by the panel doctor of the opposite party. The complainant is the nominee, under the said policy. The complainant paid premiums of Rs.99,000/- each on 18.5.2009 and 10.5.2010. On 14.5.2010, the complainant’s husband complained chest pain and on the way to the hospital, he died. On 18.5.2010, the complainant forwarded the claim application, to the opposite party and opposite party repudiated the claim vide their letter dt.13.8.2010, stating that the policy holder did not disclose the consultation/treatment, for high blood pressure and diabetes mellitus since February,2008. The complainant submits that her husband was hale and hearty and he never complained nor taken any treatment for B.P. and diabetes and the opposite party had repudiated the claim on false and fabricated documents. Repudiation of the claim of the complainant by the opposite party amounts to deficiency in service and unfair trade practice. Hence the complaint, seeking direction to the opposite party to pay the policy assured amount of Rs.4,95,000/- with accrued interest @ 24% from the date of policy i.e. on 19.5.2009 till realisation, to the complainant, to pay an amount of Rs.50,000/- as compensation for deficiency in service and negligence rendered by the opposite party, to pay Rs.5000/- towards costs.
There is no representation on behalf of the opposite party and was set exparte.
During the course of enquiry, before the District Forum, in order to prove her case, the complainant filed evidence affidavit and got marked Exs.A1 to A7.
Upon hearing the counsel for the complainant and on consideration of the material on record, the District Forum allowed the complaint, in part, directing the opposite party to deposit Rs.4,95,000/- with interest @ 9% per annum from the date of repudiation i.e. from 13.8.2010 and the opposite party is further directed to pay Rs.15,000/- towards compensation for deficiency in service and negligence on the part of the opp.party and to pay Rs.2,000/ towards costs of the proceedings.
Aggrieved by the said order, the opposite party preferred F.A.No.693/2012 and having not satisfied with the order, the complainant preferred F.A.No.395/2012 questioning the validity and legality of the impugned order of the District Forum.
The opposite party did not prefer any appeal against the exparte order dt.3.4.2012 passed by the District Forum against the opposite party in the complaint. However, the appellant/opp.party (F.A.No.693/2012) filed lengthy appeal grounds, raising all their contentions therein. In addition to that, the appellant/opposite party filed a petition in FAIA.No.1805/2012 praying to receive 1). Medical Certificate dt.31.7.2010 issued by Dr.C.H.Prasad from Surabhi First Aid Clinic, 2). Repudiation letter dt.4.1.2012 sent by the opposite party to the complainant, 3). Death Certificate relating to the deceased life assured Shaik Chand, as evidence on their behalf and after hearing both sides, the petition is allowed and the documents are marked as Exs.B1 to B3.
We heard the counsel for both the parties and perused the entire material placed on record.
The points that arise for consideration are :
1). Whether the impugned order of the District Forum is vitiated for misappreciation of fact or law as contended by the appellant/opposite party in F.A.No.693/2012?
2). Whether the appellant/complainant in F.A.No.395/2012 is entitled to the claim the amount of Rs.1,98,000/- said to have been collected by the opposite party from the deceased life assured?
3). To what relief?
It is an admitted fact that Shaik Chand the deceased life assured is the husband of the complainant herein and during his life time, he obtained Unit Gain Policy bearing no.0127217803 from the opposite party and paid policy premiums on 18.5.2009 and on 10.5.2010 and the annual premium amount is Rs.99,000/- and the minimum sum assured under the death benefit as per the policy is Rs.4,95,000/-. These facts are also proved by Exs.A1 to A4 receipts. The life assured died in the hospital due to heart attack on 14.5.2010 as is evident from the Death Certificate issued by Panchayath Secretary, Gram Panchayat, Domakonda.
The learned counsel for the appellant/opposite party submitted that the life insurance contract is a contract of utmost good faith wherein the proponent is duty bound to disclose everything concerning his health, habits and other related matters which is within his knowledge at the time of making the proposal, failing which, the insured has every right to repudiate the claim. In the instant case, the deceased life assured committed breach of principle of utmost good faith, by suppression of fact that he has been suffering from pre existing health problem, prior to signing of the declaration of good health. Thus any contract of insurance, procured by breach of good faith is null and void ab-inito as per the terms of the Indian Contract Act,1872 and hence there cannot be any enforcement of any right under the contract, which is void ab-initio. The learned counsel further submitted that there is no negligence or deficiency in service on the part of the opposite party, as defined under Section 2(1)(g) of the Consumer Protection Act. Therefore, the complainant cannot enforce any right. Under these circumstances, the appellant/opposite party has rightly repudiated the death claim regarding the deceased life assured, as such, the impugned order of the District Forum is liable to be set aside. On the other hand, the submission of the learned counsel for the respondent/complainant is that the deceased life assured never took any treatment for high blood pressure and diabetes mellitus prior to obtaining the insurance policy from the opposite party. That the medical certificate produced by the opposite party to that effect is not genuine and it is pressed into service, subsequent to the claim, made by the complainant. Therefore, the question of suppression of any material fact, does not arise. Therefore, the District Forum rightly held that repudiation of the claim made by the complainant by the opposite party is not valid and as such, there is deficiency in service on the part of the opposite party.
To prove that the deceased life assured has been suffering from diabetes mellitus and high blood pressure since Feburary,2008 prior to the obtaining of the subject policy from the opposite party, the opposite party filed Ex.B1 Medical Certificate dt.31.7.2010 issued by Dr.C.H.Prasad, Surabhi First Aid Clinic, Subash Road, Domakonda. As seen from Ex.B1, doctor certified that Mr.Shaik Chand, S/o.SK.Goremia, aged 48 years was under his treatment for blood pressure and diabetes from February,2008 to 13.5.2010 and that he was expired on the way to the hospital on 14.5.2010, due to heart attack. The complainant is disputing the genuineness of Ex.B1 certificate, which is a photocopy. The opposite party would have filed affidavit of Dr.C.H.Prasad, private practitioner, in proof of Ex.B1 certificate, especially when the complainant is disputing the genuineness of Ex.B1. Ex.B1 certificate is not issued on 13.5.2010 or prior to that date, but it was issued on 31.7.2010. The doctor must have been maintaining the register, regarding the treatment given by him, to his patients, in his hospital. The opposite party did not make any effort, to produce the register maintained by the doctor at his clinic. Under these circumstances, the opposite party is failed to prove Ex.B1 medical certificate. The opposite party therefore failed to prove that the deceased life assured was taking treatment from Dr.C.H.Prasad for B.P. and diabetes from February,2008 to 13.5.2010.
It is the case of the complainant that at the time of taking the policy by the deceased, one of the panel doctors of the opposite party, thoroughly examined the deceased life assured. The fact that the deceased was examined by one of the panel doctors of opposite party at the time of issuing of the policy, is not denied by the opposite party. Further, that apart, Ex.B1 does not disclose that the deceased life assured had knowledge that he was suffering from B.P. and diabetes prior to the date of issuing of the subject policy. Under these circumstances, basing on Ex.B1 alone, it cannot be held that the deceased life assured suppressed the fact that he was suffering from B.P. and diabetes prior to obtaining the subject policy, from the opposite party insurance company. Therefore, we are of the view that the repudiation of the claim of the complainant in pursuance of the subject policy, on the death of the deceased life assured, is not valid under law and as such the complainant has made out deficiency in service on the part of the opposite party.
For the afore said facts and circumstances, we do not find any grounds, much less valid grounds, to interfere with the impugned order of the District Forum. Hence F.A.No.693/2012 filed opposite party fails.
Submission of the learned counsel for the appellant/complainant in F.A.No.395/2012 is that the respondent/opposite party has collected an amount of Rs.1,98,000/- from the deceased life assured, that the District Forum ought to have directed the opposite party to pay the said sum to the complainant, basing on the evidence affidavit filed by the complainant. The learned counsel further submitted that the costs imposed by the District Forum on the opposite party for deficiency in service is less and the same is to be enhanced.
The District Forum discussed on this question at length, in its order and held that as per Bajaj Allianz New Unit Gain Schedule (Ex.A5), minimum death benefit is Rs.4,95,000/-. As per the premium allocation rate percentage is 45% of premium allocated to unit purchase of funds in the first year and in 2-5 years 95% of the premium collected is allocated to unit purchase. The District Forum further held that “In the complaint the prayer of the complainant is only for Rs.4,95,000/- policy assured amount and Rs.50,000/- towards compensation with regard to deficiency of service and negligence on the part of the opposite party and Rs.5,000/- towards costs of the proceedings, but in the Chief affidavit dt.23.4.2012 she added Rs.1,98,000/-. Infact, there is no pleading with regard to payment of Rs.1,98,000/- apart from Rs.4,95,000/-“. So holding, the District Forum rejected the claim of the complainant.
As seen from the record, as rightly observed by the District Forum, the complainant has not pleaded anything in the complaint, regarding payment of Rs.1,98,000/-, said to have been collected by the opposite party, from her deceased husband, apart from Rs.4,95,000/-. For the first time, she claimed the said amount in her examination as PW.1. Therefore, there is no opportunity for the opposite party, either to deny the collection of alleged amount of Rs.1,98,000/-, from the deceased life assured or admit the alleged collection of the said amount. That apart, except the interested evidence of the complainant as PW.1, the complainant has not placed any evidence, to prove that opposite party collected the alleged sum of Rs.1,98,000/-, from her deceased husband. Admittedly, the opposite party did not cross examine the PW.1, as it remained exparte before the District Forum.
Having regard to the facts and circumstances of the case, in our considered view, awarding a sum of Rs.15,000/- towards compensation for deficiency in service and negligence and Rs.2000/- towards costs of the proceedings by the District Forum is quite reasonable and as such, we are not inclined to interfere with the said order, enhancing any compensation or costs. Therefore the appeal F.A.No.395/2012 is also fails.
In the result, both the appeals F.A.No.395/2012 and F.A.No.693/2012 are dismissed, confirming the order of the District Forum. In view of the facts and circumstances of the case, there shall be no order as to costs.
INCHARGE PRESIDENT
MEMBER
Pm* Dt. 31.7.2013
