This complaint coming up before us for final hearing on                          28-11-14 in the presence of Sri R.K.S. Murthy, advocate for complainant and opposite parties remained absent and set exparte, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Smt T. Suneetha, Member:-    The complainant filed this complaint                      u/s 12 of the Consumer Protection Act seeking directions on the opposite parties to pay the policy amount of Rs.11,64,000/- along with interest from the date of death of the policy holder, compensation of Rs.1,00,000/- for causing mental agony, Rs.1,00,000/- for the deficiency of service and Rs.5000/- for legal expenses.  

2.   In brief the averments of the complaint are these:

          The complainant Mahankali Sujatha’s father Late Siriveri Venkateswarlu who died in train accident on 28-02-11, during his life time obtained life insurance policies from the opposite parties under policy     Nos.002490595, 002489174, 003121574 and 003956699 on 28-01-09,                      03-08-09 and 17-03-10 respectively for Rs.11,64,000/- showing the complainant as nominee.  The complainant approached opposite parties with all necessary documents like Death certificate of the insured, FIR, Inquest, Post Mortem Certificate and Family Member Certificate along with claim form for obtaining insurance benefits pertaining to her father.  In the 2^nd week of October, 2013 when the complainant approached the office of the                         1^st opposite party she was informed that her claim was already repudiated by 2^nd opposite party and she was handed over a repudiation letter on                        19-10-11.  The complainant’s husband was admitted in the hospital and was operated for removing of stones in his kidney on 17-10-13 at Guntur and discharged after one week with an advice to take bed rest for a period of two months.   As such the complainant is unable to meat her counsel for filing the case immediately and had no other go approached this Forum seeking justice.  The complainant is the nominee and only legal heir of the deceased and the opposite parties repudiated her lawful claim and thereby committed deficiency of service.  Hence  the complaint.   

3.      The opposite parties 1 and 2 did not choose to appear before this Forum and were set exparte.

4.      The complainant filed her affidavit. Exs.A-1 to A-10 were marked on behalf of the complainant. The complainant filed an I.A294/13 seeking condoning delay of 59 days in filing of the CCSR No.1445/13 u/s 24A of Consumer Protection Act. The said I.A was allowed by the forum on                    25-04-14. 

5.    The points that arose for consideration in this complaint are these

      1. Whether there is discrepancy in insured’s date of birth in the policies                                                                                                                                                                                            produced by the complainant ?

 2. Whether the insured had insurance policies in multiple companies?

      3. Whether the opposite parties committed any deficiency in service?

 4. Whether the complainant is entitled to any relief?

6.   POINT No.1:-     On perusal of the record the Forum observed that, the date of birth of the insured noted in the policies Ex.A1(002489174), A2(002490595) & A3(003121574) was 14-07-1960 and in Ex.A4(003956699)  as  01-07-1960.

7.      The Forum reopened the case seeking clarification on the date of birth of the insured. The complainant council filed a memo on 16-12-14 and the relevant portion of the said memo is extracted below :

       “The disturbance with regard to the date of birth certificate or mentioning the date of birth in one application instead of 14-07-1960 it was mentioned as 01-07-1960 in policy number 003956699 dated 17-03-10 as there will not be any much difference even, it is a minute mistake in mentioning of date of birth………………….”.

8.      The complainant’s counsel explained the mistake in date of birth of the insured (01-07-1960 in policy No.003956699) as minute mistake which is not proper.  The date of birth is an important factor and it makes material for an insurance contract.   The contract of insurance is based on principle of uberrima fide (utmost good faith).    The information given by the insured in three insurance policies is contradictory to the information given in the 4^th policy regarding date of birth.   The complainant did not come to the Forum with clean hands.   Therefore this point is answered against the complainant. 

9.   POINT No.2:-  The repudiation letter Exs.A-10 dated 19-10-11 revealed that the school certificate produced by the insured in proof of his age was fake and that the insured  having several  policies in other insurance companies, prior to his application for the captioned policy’ failed to give details of other companies insurance policies  (Ex.A10  dated 19-10-11).

  The 2^nd contention in the repudiation letter is that the insured non disclosure of insured’s multiple insurance policies to the present opposite party.   

10.  The complainant Mrs. Mahankali Sujatha (w/o. Venkataramaiah,  D/o. Late Siriveri Venkateswarlu, R/o D.No.16-6-12/1, Near Brahmamgari Temple Street, 17^th ward, Sattenapalli, Guntur district ) filed Consumer Complainants (CC’s) against several other insurance companies and appeared before this Forum.  The Forum passed orders on those CCs and are referred below: 

11.    The above information goes to show that the complainant is having insurance policies in HDFC ERGO Life Insurance Company, Max New York Life Insurance Company, Aviva Life Insurance Company, Bharthi Axa Life Insurance Company, Tata AIG Life Insurance Company apart from this insurance company. The complainant filed CC 8/14 in District Forum, Vijayawada, Krishna dt., claiming two policies.  All together the complainant is having 17 (seventeen) policies.  

12.    The insured obtaining  policies in multiple companies shows the ulterior motive to get means in fraudulent manner from the insurance companies and answered this point against the complainant.           

13.  POINTS 3&4:-       The complainant approached the Forum seeking claim amount from the opposite parties pertaining to four insurance policies of the insured/ complainant’s father.  

14.  The opposite parties 1 and 2 for the reasons best known to them did not attend before the forum and were set exparte on 02-06-14 and 06-11-14 respectively.  The date of birth mentioned in one of the insurance policies of the insured did not match with the other insurance policies .The complainant accepted that as a minute mistake in the memo filed by the complainant  council on 16-12-14 as discussed in Point No: 1.   Apart from it the insured is having policies in multiple companies as discussed in PointNo:2.

15.    The contract of insurance is based on the principle of Uberrimae fidei is well founded by number of judicial pronouncements.    In Shnyni Valsan Pombally vs. State Bank of India & another (2014 (1) CPJ 387 (NC)) held that it is a well settled proposition of law that a contract of insurance is based on the principle of utmost good faith – Uberrimae fidei, applicable to both parties. The rule of non disclosure of material facts vitiating a policy still holds the field.  The bargaining position of the parties in a contract of insurance is unequal.  The insured knows all the facts, the insurer is unaware anything which may be material to the risk. Very often it is the insured who is the sole person who has this knowledge.  The insurer may not even have the means to find out the facts which would materially affect the risk.  The law therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which are within his personal knowledge or which he ought to have known had he made reasonable enquiries.   A contract of insurance therefore can be repudiated for non disclosure of material facts.  

16.    In the above case the National Consumer Disputes Redressal Commission relied upon the decision reported in Satwant Kaur Sandhu vs. New India Assurance Company (2009 (4) CPJ 8 (SC)) regarding the expression material fact wherein it was held

     “It has to be understood in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk.   Any fact, which goes to the root of the contract of insurance and has a bearing on the risk involved, would be “material” and if the proposer has knowledge of such fact, he is obliged to disclose it, particularly while answering questions in the proposal form.   Any inaccurate answer will entitle the insurer to repudiate their liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance”.

17.   It appears that the claim put forth by the complainant is not genuine.  The amount involved in the insurance activities on the whole is public money and should not be mismanaged.  Therefore, the Forum is of the considered opinion that the complainant did not approach the Forum with clean hands.  

In light of aforementioned discussion, the Forum comes to a considered conclusion that the complaint is liable to be dismissed.

          In the result, the complaint is dismissed without costs.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 20^th day of December, 2014.

MEMBER                                                                        MEMBER                                

Per Sri A. Hazarath Rao,  President:-

          Perused the order prepared by the learned lady member.                         The opposite party in this case remained exparte. 

          The respondents/opposite parties even though entered appearance in                         IA 294/13 filed u/s 24(A) of the CPA later refrained from contesting that IA 294/13.    Consequently IA 294/13 was allowed.

          The averments mentioned in the complaint and complainant’s affidavit remained unrebutted as the opposite parties remained exparte.

          In the absence of any rebuttal evidence by the opposite party this Forum in my considered opinion cannot look into the aspects and orders passed by this Forum in other consumer complaints filed by the complainant herein.   This Forum has to consider whether the repudiation by the opposite parties in the case on hand is justifiable or not on the evidence available on record.   For want of any evidence on record on behalf of opposite parties the complainant is entitled for the insured amount and damages on ascertainment.  

                                                                                                PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:    NIL

PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.