And

And

 

 

 

 

 

 

This complaint is coming on this day for orders in the presence of SriP.Siva Sudarshan, Advocate for complainant and opposite party No.1 as called absent and Sri M.D.V.Jogaiah Sarma, Advocate for opposite party No.2 and upon perusing the material papers on record, the Forum made the following.

1.     This complaint is filed under section 11 and 12 of C. P. Act, 1986 praying to direct the opposite parties:-

 

(a)          To pay the policy amount a sum of Rs.4,90,000/- to the complainant with interest at 24% per annum from the date of death of the deceased i.e., 11-07-2009 till the date of realization along with benefits;

 

 

(c)         To grant cost of the complaint;

And

 

 

2.    The case of the complainant in brief is as under:- The complainant is the son of the late C.Nagamma W/o.C.Adivenna. She insured her life with the opposite parties under the policy bearing No.003005798 for Rs.4,90,000/- with an annual premium amount of Rs.89,611/-.  The said policy is called Birla Sun Life Insurance ‘Saral Jeevan’ Policy.  The opposite parties had issued the policy to the assured after satisfaction of all the ingredients end formalities. The complainant is the nominee under the policy. On 11-07-2009 the insured died due to Malaria Fever. The complainant who is the nominee under the policy submitted the claim to the opposite parties. The opposite party No.2 repudiated the claim through letter dated 11-3-2010 stating that insured suppressed the material facts regarding her health condition in the proposal form and that the life assured had been suffering from Diabetes prior to the issuance of policy. There is deficiency of service on the part of the opposite parties in not honouring the claim of the complainant. The Opposite parties caused mental agony by repudiating the claim of the complainant. Hence the complaint.

 

3.     Opposite party No.1 set exparte.

 

       Opposite party No.2 filed written version stating that the complainant is not maintainable and it is liable to be dismissed. There is no cause of action to file the present complaint. The contract of insurance is based on good faith. The proposer concealed and suppressed the material facts in the proposal form. The assured obtained the policy by misrepresentation and fraud. The assured is in breach of pious relationship of Uberrima Fides. The insured had been suffering from Diabetes prior to obtaining the said policy. During the investigation Dr.D.Mohammed Hussain, Banaganapalle issued Medical Certificate dated 03-03-2010 stating that the insured was a known Diabetes patient since 20-06-2008 to 25-05-2009.  She was taking regular treatment from the said doctor. The insured has given the wrong information in the proposal form, so the claim of the complainant was repudiated by opposite party NO.2.  There is no deficiency of service on the part of opposite parties. The complaint is liable to be dismissed.

 

 4.    On behalf of the complainant Ex.A1 to A3 are marked and sworn affidavit of the complainant is filed. PW1 is examined. On behalf of the opposite party No.2 Ex.B1 to B4 are marked and sworn affidavit of opposite party No.2 is filed.

 

5.     Both sides filed written arguments.

 

6.     Now the points that arise for consideration are:

 

                     i.        Whether there is deficiency of service on the part of Opposite Parties?

 

                    ii.        Whether the complainant is entitled for the reliefs as prayed for?

 

                  iii.        To what relief?

7.      POINTS :- Admittedly Late C. Nagamma, who is the mother of the complainant obtained insurance policy bearing No.003005798 in her name which is marked as Ex.B2. The basic sum assured under the policy was Rs.4,90,000/- and annual premium payable under the policy was Rs.89,611/- by D.D.No.A1449987 dated 17-06-2009. Ex.A1 is the first premium paid certificate. The complainant   is the nominee under the said policy is not under dispute. It is the case of the complainant that the assured died on 11-07-2009 due to Malaria Fever. Ex A2 is the photo copy of Death Certificate issued by Panchayat Secretary, Banaganapalle Mandal, dated 18-06-2010. Ex.B1 dated 18-02-2010 is the photo copy of Medical Attendance Certificate issued by Dr.G.Venkata Naidu, Government Hospital Banaganepalli to opposite party No.2, who treated the assured. It discloses that the assured was treated for general problems Fever, Vomiting, Diaharea, Dehydrations Abdominal Pain etc.  It also discloses that the cause of death of the assured was Gastroenteritis. Admittedly after the death of insured the complainant submitted claim form to the opposite parties which is marked as Ex.B3 dated 06-02-2010. The said claim of the complainant was repudiated by opposite party No.2 under Ex.B4 & Ex.A3 dated 11-03-2010, stating that the insured had been suffering from Diabetes prior to the application for insurance and she suppressed the said fact in the proposal form.  Pw1, the Doctor who treated the insured and issued Ex.B1 also clearly stated in his evidence that the insured was not given treatment for Diabetes and her cause of death was Gastroenteritis and the same is clearly mentioned in Ex.B1.

 

8.     It is the case of the opposite parties that the Assured had been suffering from diabetes before taking the policy, that the Doctor Hussain Banaganpalle issued Medial Certificate to this fact and that the insured obtained the policy by misrepresentation and fraud. The assured is in breach of pious relationship Uberrima Fides between the insurer and insured. To support his version he cited a decision P.C.Chako and another -Vs- Chairman, Life Insurance Corporation of India and others 2007 (13) Scale 329, where in it was held that the insured had undergone an operation for adenoma   Thyroid despite this, he did not disclose the said fact in the proposal form and stated that his health was good. The facts of that case are not applicable to the present case on hand.

 

9.     The learned counsel appearing for the complainant argued that the burden is on the opposite parties to prove that insured suppressed the material fact of her pre-existing disease at the time of taking policy.  In this case the opposite parties filed the Medical Certificate of Dr.Mohammed Hussain, Banaganpalle, stating that the insured was known Diabetes patient since 20-06-2008 to 25-05-2009. But it was not marked as Exhibit and the said doctor was not examined as witness. The opposite parties not filed at least affidavit of the said doctor who issued the certificate. In a decision reported in I (2009) CPJ 161 (NC) Vanitaben Retilal Fulbaria -Vs- Life Insurance Corporation of India it was held that Medical Certificate produced without supporting affidavit of doctors, who examined insured, was not sufficient. In the present case also the opposite parties not filed the affidavit of doctor who examined the insured and issued certificate. Mere filing of Medical Certificate is not sufficient to prove his version that the insured had been suffering from Diabetes before taking the policy from opposite parties. In another decision reported in II (2007) CPJ 452, Delhi State Commission Life Insurance Corporation of India -Vs- Sudha Jain where in it was held that Maladies like Diabetes, hypertensions being normal wear and tear of life, can not be termed as concealment of pre-existing disease. Insured not bound to disclose disease easily detectable by basic tests like blood etc., The Insured was wrongly repudiated on the ground that insured had been suffering from Diabetes. In present case also the opposite parties wrongly repudiated the claim of the complainant. 

 

10.    PW1 the doctor who examined the insured deposed that the insured was suffering from Fever and died due to Fever on 11-07-2009. The said doctor issued Medical Attendance Certificate to opposite parties. It is marked as Ex.B1. It is clearly mentioned that the cause of death of the insured was Gastroenteritus. There is no nexus of alleged disease and cause of death. As seen from evidence of PW1 and Ex.B1 it is very clear that the opposite parties could not establish that, the insured suppressed the material fact of her preexisting disease and obtained the policy. There is deficiency of service on the part of opposite parties. Taking in to consideration all the facts and material placed on record, we are of opinion that the complainant is entitled for assured amount of Rs.4,90,000/-. 

 

11.    In the result the complaint is partly allowed directing the opposite parties jointly and severally to pay assured amount of Rs.4,90,000/- to the complainant within one month from the date of order along with costs of Rs.1,000/-. 

 

        Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 18^th day of April, 2012.

For the complainant : PW1         For the opposite parties :Nill

 

 

Ex.A1                Computerized copy of Premium Paid Certificate

dated 06-05-2010.

 

Ex.A2.       Death Certificate issued by Executive Officer,

dated 18-06-2010.

 

Ex.A3                Repudiation letter dated 11-03-2010.

 

 

Ex.B1                Photo copy of Birla Sun Life Insurance Company

 

Ex.B2                Photo copy of Birla Sun Life Insurance

Saral Jeevan Policy.

 

Ex.B3                Photo copy of Policy bearing No.003005798 claimants

 

Ex.B4                Photo copy of Repudiation Letter dated 11-03-2010.

 

Complainant and Opposite parties :

Copy was made ready on             :

Copy was dispatched on               :