This complaint is coming on for final hearing before us in the presence of Sri S.S.S.S.V.R.M.Raju, Advocate for the complainant and OP called absent and having stood over for consideration, the Forum made the following:-

O   R   D   E   R

SRI GANTA APPALA NAIDU, MEMBER

This is a complaint filed under sectioin-12 of Consumer Protection Act, seeking the reliefs to direct the opposite party to pay sum of Rs.3,00,000/- with interest at the 24% per annum from the date of death of the deceased i.e. 19.06.2011 till the date of realization and to grant compensation of Rs.25,000 towards mental agony and to award costs on the following averments:-

1. The complainant’s husband is the policy holder bearing policy no.0198025993 dated 31.12.2010 which is for a period of ten years and the sum assured is Rs.3,00,000/- and the regular annual premium is Rs.23,820/- and maturity period of the policy is twenty years i.e. maturity date is 28.12.2030 and the due date of last premium is 28.12.2019.  It is averred that the complainant is a nominee being the wife of the deceased Srinivasarao.  The deceased died on 19.06.2011 and after his demise the complainant submitted all relevant documents to the opposite party for the settlement of claim but of no avail.
2. The opposite party in their letter dated 28.11.2011 stated that the deceased did not disclose about his hospitalization during the period from 26.10.2010 to 01.11.2010 and advised her to approach claims review committee.  There after the complainant got issued a notice dated 03.01.2012 to the claims review committee with a request to settle her claim but the said committee having received the notice did not settle the claim.  It is averred that the opposite party addressed another letter dated 15.02.2012 informing the complainant that if she is not satisfied with the decision given by claims review committee she may write to Insurance ombudsman.  It is averred that as per terms of the policy the opposite party is liable to settle the claim but on false allegations it has rejected her claim having no basis. It is averred that the complainant is a consumer and as there is deficiency in service rendered by opposite party she filed the present complaint for the above said reliefs.
3. Inspite of service of notice, the opposite party did not come to the forum to contest the matter.  To substantiate the claim of complainant she filed her evidence affidavit and got marked exhibits A1 to A6. 
4. Now the point for consideration is:

Whether there is deficiency in service rendered by opposite party and whether the complainant is entitled to the reliefs prayed for?

1. The complainant pleads that since the deceased husband was a policy holder and the sum assured is RS.3,00,000/- and while the policy issued by the opposite party was in force by the time her husband died she is entitled to get the benefits under the policy being the nominee of the policy holder.  Exhibit A1 is the Xerox copy of policy bond and exhibits A2 and A3 are the medical certificates pertaining to the deceased and exhibit A4 is a letter issued by the opposite party and Exhibit A5 is office copy of registered notice got issued by the complainant and exhibit A6 is letter issued by the opposite party.  As seen from the contents of complaint, evidence affidavit of complainant and exhibits A1 to A6 it is manifest that the deceased Srinivasa Rao has taken policy from the opposite party and when the said policy was in force he died on 19.06.2011 and after his demise the complainant being the nominee of the policy holder made a request to the opposite party to settle her claim but her claim was not settled on the premise that her husband did not disclose about his hospitalization during the period from 26.10.2010 to 01.11.2010 for the treatment of disease i.e.,Hodgkin’s Lymphoma stage – 3B put on Chemotherapy.
2. Inspite of receipt of notice from the Forum the opposite party did not chose to come to the Forum to contest the matter.  Hence the contents of complaint and chief affidavit of the complainant  remained uncontroverted.  Though in exhibit A4 notice it is mentioned that on receiving the death claim intimation, various investigations were done and  various medical records were received which reveal certain facts known to the deceased life assured and not disclosed to them  the opposite party did not disclose as to the nature of investigations done and as to who made the said investigations and when they were made.  Similarly, the opposite party did not disclose the nature of medical records received and from which hospital they were received and as to who was the doctor issued those certificates.  In exhibit A4 notice the complainant was asked to write to the claims review committee for reconsideration of her claim upon which the complainant addressed exhibit A5 notice to the claims review committee with a request to settle her claim.  The opposite party issued exhibit A6 notice to the complainant stating that the claims review committee of their company has reexamined the material and has not found possible to reverse the earlier decision of repudiation.  The Above said notice is also silent as to when the claims review committee has examined the claim of complainant and as to the nature of documents placed before it for its perusal and consideration.  Also the name of  the Hospital and name of doctor who alleged to have given the said treatment were not given by O.P. 
3. Under the above said facts and circumstances since the OP having no basis for rejection of the claim of the complainant, this forum in its order dated 28^th day of Janaury, 2013 directed the OP to pay a sum of Rs.3,00,000/- together with interest at 12% per annum from the date of death of the deceased i.e.19.06.2011 till payment is made and to pay a sum of Rs.10,000/- towards damages for causing mental agony to the complainant and to pay a sum of Rs.2,000/- towards costs and Advocate fee of  Rs.1,000/- which includes in the cost. 
4. Aggrieved by the decision of this Forum, the petitioner/appellant/OP preferred appeal before the Honourable State Commission and accordingly, the Honourable State Commission vide F.A.           No.655/2013 in C.C.51/12 allowed the appeal and set aside the order of this Forum passed in CC. No.51/2012 dated 28-01-2013 and directed this Forum to take up the matter for disposal of the same in accordance with the law i.e., granting of time to the OP/appellant to file its written version, affidavit evidence etc., as the said matter requires reconsideration by fresh hearing for obvious reasons that the O.P. could not contest the matter and in those circumstances, subsequent to the pronouncement of orders, it came to light that the husband of the respondent herein had undergone treatment at Nizam institute of Medical Sciences (NIMS) prior to obtaining the policy and hence the respondent’s husband is not entitled to any amount under the said policy though the OP remained exparte in spite of the service of notice to them.
5. However, the parties to this case took several adjournments for adducing evidence and on                        25-7-2014, the OP filed a petition to appoint an Advocate Commissioner to Examine Doctor D.Raghunadha Rao who is working in Nizam institute of Medical Sciences, Panjagutta, Hyderabad and after hearing both the counsels, the said petition was allowed and Sri I.Ramesh, Advocate was appointed as Commissioner to record evidence of the aforesaid doctor. The commissioner took 4 to 5 adjournments to record evidence of the Doctor and finally on 19-9-2014, he orally reported that the said doctor was not in service and however, he is making efforts to trace his address and on the same day, the counsel for OP filed a memo stating that they have filed a petition in R.S.No.5353 of 2014 before the Honourable State Commission seeking extension of time to this forum. As seen from the material paced on record, the above medical officer is a material witness in the case and if he is not examined, it would cause prejudice to the interests of the parties.
6. Finally, the Advocate Commissioner filed a memo on 31-10-2014 stating that Dr.Raghunadha Rao is not available as informed by the Counsel for the petitioner in I.A.43/14 in spite of several efforts made by the officials of the Insurance company. Hence, he could not execute the warrant of commission and since there is no  other go, he returned the warrant of commission along with the documents received from this forum.
7. In the counter filed on 14-7-2014 and Chief Affidavit on 25-07-2014 by the OP, it is contended by the OP that the deceased life assured did not disclose the fact that he was suffering from ailment prior to making the proposal for insurance policy even though he is under obligation to mention the same in the proposal Form at the time of applying for the insurance policy. If he had disclosed the same, the insurance company would not have insured the life of the assured or would have certainly called for more documents and the medical tests. It is further contended that breach of providing information by the life assured entitles the insurer to avoid the contract of insurance and therefore, the claim of the complainant stands repudiated on the ground of non-disclosure and concealment of the material facts and accordingly, the present complaint is not maintainable since the life assured is guilty of suppressing the material facts at the time of making the proposal for his insurance. Further pleading of OP is that the policy holder made a declaration in the application that the answers given in the application are full, complete and true and OP believing them to be as such, will rely and act on them. Otherwise, the proposed application becomes void. Since the Insurance contract is based on “Ut-most good faith” and the deceased life assured has knowledge of his pre-existing decease, It amounts to breach of the policy and hence the complainant cannot derive an advantage from the own wrong of the deceased. Exhibit B-1 is marked on behalf of OP. The OP also reproduce the para 19 of the proposal Form which reads as follows: “is there a history of diabetes, cancer, high BP, heart or kidney disease, communicable diseases like tuberculosis, Alcoholism, mental illness or suicide” the complainant after reading the said para mentioned that he was not suffering from any of the diseases mentioned therein and hence he intentionally suppressed the said facts to avail the said policy and to make wrongful gain out of the same.
8. However, from the entire material placed on record, and oral arguments by the counsel of the complainant the following are the vital observations which would strengthen the case of the complainant and negligent acts of the OP:
9. The OP did not appear in this forum during the entire proceedings conducted before passing the order dated 28-01-2013. The O.P and also their counsel did not present at the time of hearing on 24-11-2014 inspite of another opportunity given at their request.
10. The OP neither submitted their counter, evidence, or brief written arguments before passing 1^st order by this Forum in spite of notice received from this forum and hence the contents in the complaint or the affidavit evidence filed by the complainant remained uncontroverted and uncontested since the OP remained exparte.
11. Aggrieved by the decision of the Insurance Company for repudiating the claim, the complainant while representing the matter for reconsideration, she was advised to approach the Claims Review Committee of the OP and the Claims Review committee after reiterating their earlier stand also advised the complainant to approach insurance ambudsman, if she is not satisfied with their said decision creating hope on the part of the complainant. As per the appeal of the OP, the Honourable State Commission remanded the case to this Forum and while examining the case further, an Advocate Commissioner was appointed by this Forum as per the representation of the OP to examine Dr.D.Raghunadha Rao who alleged to have treated the deceased-life assured during the period from 26-10-2010 to 1-11-2010 since the deceased was alleged to have suffered from Hodgkin’s Lymphoma stage - 3B and treated in NIMS, Hyderabad in I.P. NO.1023778 and to record his evidence for further proceedings / Fresh hearing in this Forum. However, the said Advocate Commissioner in his memo dated 31-10-2014, stated that the said doctor is not available as informed by the counsel for the petitioner in I.A.43/14 in spite of several efforts made by the officials of the Insurance Company and hence, he could not execute any warrant of commission and since there is no other go he returned the warrant of commission along with the documents received from this Forum.
12. The OP inspite of number of adjournments allowed and number of opportunities given, they could not produce any evidence from the Doctor i.e., Dr.Raghunadha Rao, which is very critical in deciding the case and they could not even trace out the address of the said doctor.  Since they have failed in their efforts to advance strength to their arguments, no reliance can be placed on their pleading.
13. The case sheet and other documents produced by the OP were not certified by NIMS Hospital Authorities but they could only produce Xerox copies certified by the office of the OP which does not authenticate and also cannot be relied upon.
14. No Nexus could be established by the OP between the malafides alleged by them with regard to the cause of the death of the deceased and the treatment given to him in NIMS Hospital during the period from 26-10-2010, 1-11-2010 and hence no cogent evidence could be produced by the OP to establish that there is nexus between the treatment and the cause of death of the deceased. Further in the lawyer’s notice dt.3-1-2012 addressed to claims Review Committee, it was mentioned that the deceased died due to heart attack only and he never got treatment during the period stated supra.  The Civil Surgeon of community Health Centre, Cheepurupalli in his report dt.5-11-2011 states that the first consultation was on 19-6-2011 and the nature of complaint was chest pain, sweatness and dyspnoca and cause of death (Primary Cause) at 8.50 PM on 19-6-2011 is Cardio Respiratory failure and secondary cause of death is myocardial infaration.

1. Under all the above circumstances, we are of the considered opinion that the OP having no concrete basis/cogent evidence simply rejected the claim of the complainant by subjecting her to prolonged harassment, mental agony and financial loss. Also inspite of number of opportunities given, the OP could neither produce cogent evidence from the Doctor who treated the deceased nor produced any other authentic evidence to prove the nexus between the treatment given to the deceased and the cause of the death and hence the complaint/petition deserves to be allowed in part.

20.    In the result, the complaint is allowed in part directing the OP to pay a sum of Rs.3,00,000/- (Rupees three lakhs only) together with interest @ 9% p.a., from the date of complaint till payment is made and to pay a sum of Rs.10,000/- (Rupees ten Thousand only) towards damages/for causing mental agony to the complainant and to pay an amount of Rs.2,000/- (Rupees Two Thousand only) towards costs and Advocate fee of Rs.1,000/- (Rupees One Thousand only) which includes in the costs. The OP is directed to comply this order within one month from today.

Dictated to the Steno, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 4^th December, 2014.

PRESIDENT                                       MEMBER                                                                

C.C.No.51/2012

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For Complainant:-                For Opposite Parties:-

PW 1.                              RW 1.

DOCUMENTS MARKED

For Complainant:-

Ex.A.1  xerox copy of the Policy Bond.

Ex.A-2  Medical attendant certificate.

Ex.A-3  Certificate from usual/family doctor.

Ex.A.4  Letter from opposite party.

Ex.A.5  Office copy of the Regd.Lawyer Notice

Ex.A.6  Letter from the Opposite party.

For OP:-  - Nil -

PRESIDENT                                       MEMBER