| ORDER | | BEFORE THE DISTRICT CONSUMERS FORUM AT KHAMMAM Dated this, the 1ST day of July, 2011 CORAM: 1. Sri Vijay Kumar, B.Com., LL.B., President 2. Sri.R.Kiran Kumar, B.Sc., LL.B., Member C.C.No.103 of 2009 Between: Smt.V.Srilakshmi, w/o. late Vanama Venkateshwarlu, occu: Husehold, r/o. Khammam town, Khammam District. …Complainant and Birla Sun Life Insurance Co. Ltd., rep. by its Authorised Signatory, Mumbai, R/o. Vaman Centre, 4th floor, Makhwana Road, Marol Naka, Off Andheri, Kurla Road, Andheri East, MUMBAI - 400059 through local branch, wyra road, Khammam. …Opposite party This C.C. is coming on before this Forum for final hearing in the presence of Sri.P.Amarchand and of Smt.N.Venkata Lakshmi, Advocates for complainant and of Sri.K.Ramesh Kumar, Advocate for opposite party; upon perusing the material papers on record; upon hearing the arguments, and having stood over for consideration, till this day, this Forum passed the following:- ORDER (Per Sri.Vijay Kumar, President) This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The averments made in the complaint are that the complainant is a household woman, the husband of the complainant by name Vanama Venkateswarlu had worked in Birla Sun Life Insurance Company, during his life time and having attracted wide publicity had obtained the policy bearing No.002041195 on his life by paying premium of Rs.5,716-26ps. per annum, it was valid from 18-9-2008 to 18-9-2028. The sum assured under the said policy was for Rs.47,395.50 ps., later it was enhanced to Rs.8,00,000/- AD & D Rider sum assured Rs.1,29,000/-; thus a total sum assured was for Rs.9,76,395.50ps. The husband of the complainant also paid the stamp duty amount of Rs.170/- on 1-7-2008 and the same thing is mentioned in the policy. In the said policy, the deceased has mentioned the complainant as his nominee being his wife. The husband of the complainant i.e. insured was 32 years old, he was hale and healthy and energetic, he has no type of disease. The opposite party has obtained all clinical tests by the husband of the complainant and then only issued the policy. After obtaining the policy, all of sudden on 5-3-2009 the husband of the complainant died leaving behind the complainant and his son as his legal heirs. After the demise of her husband, the complainant approached the concerned authorities of the opposite party and requested to pay the policy amount by submitting the claim form, but the claim of the complainant remained unattended. The officials of the opposite party gave irresponsible and evasive reply, though the complainant furnished the required documents to the opposite party, but for the reasons best known the opposite party did not choose to answer the claim by paying the policy amount. Surprisingly on 9-4-2009 the opposite party issued a letter to the complainant stating that the claim has been repudiated on the ground that life assured, Vanama Venkateswarlu was undergoing treatment for cancer prior to his application and suppressed this fact at the time of filing proposal form. This act on the part of the opposite party put the complainant to severe mental agony. Hence, the complaint to direct the opposite party to pay a sum of Rs.9,76,395.50 ps. being the policy amount to the complainant together with interest @ 12% P.A. and to pay a sum of Rs.1,00,000/- as compensation for mental agony and to award costs. Apart from the complaint, the complainant filed an affidavit, reiterating the contents of the complaint. On receipt of notice, the opposite party appeared through their counsel and filed counter. In the counter some of the averments of the complaint are denied and some are admitted by the opposite party. It is submitted in the counter that there is no deficiency in service on the part of opposite party in repudiating the claim as the life assured suppressed the material facts regarding his medical history at the time of filing of proposal form, at the same time the opposite party had admitted that the life assured had applied for the Dream Plan Policy for enhancement of Rs.8,00,000/- and guaranteed maturity benefit of Rs.25,000/- on his own life by the said application. It is further submitted that u/s.45 of Insurance Act, as the claim was treated as early claim, investigation was made in the genuineness of the death of the life assured, the investigators appointed by opposite party discovered that the life assured had a pre-policy issuance medical history and that he was actually undergoing treatment for cancer and has been treated as out patient for radiotherapy Department on May 5, 2008. As per the pre medical history, it is evident that the life assured had given negative reply to question No.11-D in the proposal form, the life assured had deliberately with malafide intention suppressed the material facts about his past medical history, which was a material information for assessment of risk, a duty is cast upon the policy holder to disclose all the material facts to the insurer, but the same was not disclosed by the life assured on that ground only, the claim has been repudiated. All the other averments have been denied in toto. The insurance company is bound to act as per the terms of the policy, as there is breach of policy condition in the present case, the opposite party is not bound to make any policy as per the policy conditions. The complainant has not placed the true facts before this Forum and made false declaration by making unlawful gain. The complainant has not made out a case under Consumer Protection Act. Hence, prayed to dismiss the complaint. On behalf of the complainant, the following documents filed. i) First premium receipt issued by the opposite party, dt.18-9-2008. ii) Proposal form, dt.10-9-2008 iii) Death certificate, dt.4-5-2009 iv) Photocopy of Household card issued by MRO, dt.2-8-2005 v) wedding card, dt.30-10-2004 vi) Letter issued by opposite party, dt.19-11-2008 vii) Repudiation letter addressed by the opposite party, dt.9-7-2009. On the other hand on behalf of the opposite party, Copy of insurance policy filed along with proposal form for taking of policy by the life assured, terms and conditions of the policy, premium receipt, death certificate of the deceased, Vanama Venkateswarlu showing the cause of death due to heart stroke, dt.5-3-2009, claim form submitted by the complainant, out patient radio theraphy invoice No.43802, dt.5-5-2008, discharge summary issued by NIMS, Punjagutta, Hyderabad, dt.13-11-2008, admission record of NIMS, Panjagutta, Hyderabad, dt.13-11-2008, proposal form of BSLI submitted by the insured. On behalf of the complainant, written arguments filed along with case laws. On behalf of the opposite party, the learned counsel submitted his oral arguments. Heard both sides. Perused the oral and documentary evidence, upon which the points that arose for consideration are, 1. Whether the complainant being nominee of the life assured, Vanama Venkateswarlu is entitled to the amounts covered under the policy? 2. To what relief? Point No.1: The undisputed facts of the case are that the husband of the complainant by name Vanama Venkateswarlu had taken insurance policy, assuring his life with opposite party insurance company. The sum assured is Rs.9,76,395.50 ps. under different heads. It is also not in dispute that late Vanama Venkateswarlu paid the annual premium amount of Rs.5,716.26 ps. for the above policy. The policy was in force for the period from 18-9-2008 to 18-9-2028. It is also not in dispute that late Vanama Venkateswarlu/ life assured died on 15-3-2009. It is also not in dispute that after the death of the insured, the complainant being the wife and nominee had submitted claim form to the opposite party by duly enclosing all the relevant documents to pay the policy amount. The only dispute is in regard to repudiation of claim through a letter, dt.9-7-2009 issued by the opposite party on the ground that the insured late Vanama Venkateswarlu had suppressed the fact that he being the cancer patient and taken treatment for the same in Basava Taraka Cancer hospital and also in NIMS, Hyderabad. The learned counsel for the opposite party vehemently argued and submitted that late Vanama Venkateswarlu, the insured was treated as out patient and taken Radio theraphy invoice, dt.5-5-2008. On this aspect of the case is concerned, he referred to out patient Radio Theraphy invoice. He also submits that late Vanama Venkateswarlu got admitted in NIMS, Punjagutta and discharged on 13-11-2008 and taken treatment. His ailment was diagnosed as Hodgkin’s lymphosis. On the basis of the medical record, he vehemently argued that late Vanama Venkateswarlu was suffering with cancer at the time of taking Birla Sun Life Insurance Policy. The fact of suffering with cancer was suppressed by him, at the time of filing proposal form. In the relevant column of proposal form, he has given negative answers about the state of health condition and also denied that he ever admitted in any hospital or taken any medical facility. This particular act on the part of policy holder amounts to concealment of material facts. The fact of suffering from cancer has come into light on the investigation carried on by the opposite party. Under section 45 of the Insurance Act, 1938 the opposite party has conducted investigation since the claim of the complainant being an early claim and on their investigation, it came to light that life assured suffered with ailment of cancer even at the time of filing the proposal for taking insurance policy. On the other hand the learned counsel for the complainant submitted that the life assured Vanama Venkateswarlu was thoroughly subjected to medical examination by the team of doctors of the opposite party company. After having satisfied with his health condition, the policy was issued in his favour. Had really there been cancer symptoms, the same could have detected at the time when he was thoroughly examined by the panel doctors of the opposite party. Merely because he visited NIMS hospital, Hyderabad, the opposite party cannot jump to the conclusion that the symptoms of cancer were in the body of the deceased/ policyholder, the same was not detected by the panel of doctors. It is further submitted that all the required information in the proposal form was got filled by the concerned staff of the opposite party company in the usual course of manner, mere appearance of the signature of the deceased/ policy holder cannot be construed as admission of entire information and that cannot be the basis of the opposite party company to repudiate the claim, it appears that the opposite party searching for the reasons to repudiate the claim under the policy under the guise of alleged investigations, without undertaking such an exercise speaks to the sinister motive to escape from the liability under the above policy. Moreover the opposite party company did not place any material on record to substantiate its contention that the deceased/ policy holder had the knowledge or atleast symptoms of cancer ailment in the body. If at all any such cancer symptoms were in existence in the body, they would have been definitely noticed by the panel doctors of the opposite party. The non production of such material evidence as to the alleged existence of symptoms of cancer in the body of the deceased/ policy holder and on that ground repudiation of the claim is unwarranted. The opposite party is bent upon taking recourse under technical grounds when the policy holder himself did not have knowledge as to the existence of symptoms of cancer in his body as on the date of filing proposal form for taking insurance policy. Therefore, the question of suppression of alleged material fact of the deceased suffering with cancer does not arise. The question of suppression of material facts arises when the same is in the knowledge of the policyholder. When the policyholder himself is not aware of ailment of cancer, which cannot be said that he has concealed the material information regarding state of health condition. As may be seen from the record the life assured never admitted in any hospital, and was treated for cancer prior to filing of the proposal form does not amount to suppression or concealment or misstatement of material facts justifying the repudiation of the claim. In order to establish that the policy holder was suffering with ailment of cancer at the time of submission of proposal form, the policy holder should know that he was having such ailment, when he himself did not know that he was suffering from such ailment, it cannot be said that he had suppressed the said ailment. What all he got was cancer, he visited NIMS hospital. He could have visualized that it was a cancer. At any rate even that it was prior to the policy. The insurance company could not give any reason as to why the proposal was accepted and the policy was issued in the name of policy holder. Therefore the repudiation of the claim of the complainant was unjust. In view of the foregoing reasons, we are of the opinion that before jumping to the conclusion regarding the state of health condition of the policy holder, a duty is cast upon the insurance company to examine the concerned doctor, who treated the policy holder for the alleged ailment of cancer, but in the instant case no such step has been taken by the opposite party in examining the concerned doctor to know regarding the health condition of the policy holder. Mere filing of some hospital records will not suffice to show that the policy holder suffered with the ailment of cancer at the time of filing proposal form for taking insurance policy. In the absence of specific and cogent evidence, we are unable to hold that the policyholder/ deceased/ insured suffered with ailment of cancer and this was in his knowledge and he suppressed this fact at the time of filing the proposal form to attract the provisions of Section 45 of Insurance Act. The opposite party company cannot escape from the liability of paying the sum assured under the policy. Therefore, the complaint is fit to be allowed. Point No.2: In the result, the complaint is allowed, directing the opposite party to pay an amount of Rs.9,76,395.50 ps (Rupees nine lakhs, seventy six thousand, three hundred and ninety five and fifty paise only) covered under the policy bearing No.002041195 with interest @ 9% P.A. from the date of repudiation i.e. 9-7-2009 till the date of deposit. The opposite party further directed to pay an amount of Rs.2,000/- towards costs of the litigation. There is no order as to compensation. Dictated to the steno, transcribed by her, corrected and pronounced by us in the open forum on this the 1st day of July, 2011. PRESIDENT MEMBER DISTRICT CONSUMERS FORUM, KHAMMAM. APPENDIX OF EVIDENCE -Nil- PRESIDENT MEMBER DISTRICT CONSUMERS FORUM, KHAMMAM. | |
