DATE OF FILING- 20.07.2010
DATE OF DISPOSAL-25.06.2014
O R D E R
Dr. N.Tuna Sahu, Member
1. The complainant has filed this consumer complaint under Section-12 of the Consumer Protection Act, 1986 alleging deficiency in insurance service against Opposite Parties (for short O.Ps).
2. The brief facts of the complainant’s case are that on persuasion of the local insurance advisor of O.P.No1, the son of the present complainant late Desiti Krishna procured three insurance policies bearing No.002543849, 003071090 and 003222204 respectively. The present complainant was nominated as nominee of the insured. As per the complainant, while the policies were in force, the insured was suffered from falcifarum malaria fever and in spite of medical care unfortunately died on 28.10.2009. The said death of the insured was brought to the knowledge of the O.P. No.2 vide letters dated 15.4.2010 and 17.5.2010 and after receipt of the same, the O.Ps assured to settle the claims shortly. Though the claimant complied with all requirements of the O.Ps, but did not take any action and slept over the matter without settlement of the claim, which amounts to deficiency in service on part of the O.Ps. Since, the O.Ps did not settle the genuine claims of the complainant, he filed this consumer dispute with a prayer to direct the O.Ps to pay the basic sum assured amount against three polices mentioned above amounting to Rs.8,52,845/-. She has also prayed to pay interest on the claim amount at the rate which is 2% above the bank rate for causing delay in processing the claim as per Regulation 8(5) of the I.R.D.A.(PRI) Regulations, 2002. The complainant further prayed to direct the O.Ps to pay an amount of Rs.1,00,000/- for causing harassment and mental agony and to pay Rs.40,000/- towards cost of the litigation and to grant such other reliefs.
3. On receipt of notice, the O.Ps appeared before this Forum through their learned counsel Sri S.K. Panigrahi, Advocate, Berhampur, and filed version on 24.08.2011 and written argument on 06.02.2014. It is stated that the complaint is not maintainable and is liable to be dismissed as the complainant has attempted to misguide, mislead and has suppressed material facts before this Forum and lack cause of action for initiation of the complaint. It is also contended that the life assured in the application form has misstated the material facts pertaining to his availing previous insurance policies and past medical history which were to his exclusive knowledge and which were liable to be disclosed to the O.Ps and as such for the aforesaid suppression, these O.Ps have a right to repudiate the claim of the claimant under Section-45 of the Insurance Act, 1938. It is also submitted that after issuance of the policies, the O.Ps made a detailed enquiry and on examination of the documents along with the terms and conditions of policies it is found that at the time of submitting the applications, the deceased life assured had in his applications knowingly made false misrepresentations and concealed the true and factual aspects with respect to his availing insurance policies with other insurance companies which questions and the replies thereto in the application are indicated at page-4 at para-5 of the version filed by the O.Ps. On enquiry made by the O.Ps it is revealed that the deceased life assured had applied for number of insurance policies from different life insurance companies and the details has been given in page-4 at para-6 of the version. It is further submitted that on investigation it was further gathered that the life assured was diagnosed as a case of HIV positive vide a report dated 28.06.2007 which was two years prior to the signing of the application and the said is a material suppression and is manifest from the answer given in policy application more fully detailed at para-8 in page-5 of the version of O.Ps. The O.Ps in their argument also contended that having being led to issue the policy on account of “suppression of material facts” by the life assured, the O.Ps fully repudiated the claim of the complainant vide its letter dated 31.07.2010 and 23.08.2010 and the said letters have been annexed as ‘C’ and ‘D’ appended to the version of O.Ps. The O.Ps furthermore contended that for the act of concealment and suppression of material facts by the deceased life assured with regard to have multiple policies and having diagnosed as HIV positive, the O.Ps were very much with their right in repudiating the policies and claims there under. It is, therefore, prayed that the Forum be pleased to dismiss the complaint as being frivolous and vexatious and to pay cost under Section 26 of the Consumer Protection Act, 1986 in the interest of justice.
4. On the date of final hearing of the consumer dispute, we heard the rival contentions of the learned counsel for the complainant well as for the O.Ps at length and also verified the complain petition, written arguments and documents on record relied on by all parties to this dispute. On careful perusal of the case record it is found that undisputedly the deceased policy holder had obtained three insurance policies from the O.Ps under the name “Birla Sun Life Insurance Dream Plan” vide polices bearing No.002543849 dated 19.02.2009 for basic sum assured Rs.2,83,200/- on payment of Rs.20,016/- towards semiannual premium, policy No.003071090 dated 28.06.2009 for basic sum assured Rs.4,33,355/- on payment of Rs.29,996/- towards annual premium and policy bearing No.003222294 dated 15.08.2009 for basic sum assured Rs.1,36,290/- on payment of Rs.10,036 towards semiannual premium respectively. It is also found that the nominee of the deceased policy holder intimated to the O.P.No.2 regarding death of the policy holder on 15.4.2010 that her son was died on 28.10.2009 at about 9.15 AM due to Falcifarum Malaria on the way to Vishakhpatnam while he was shifting from Divine Nursing Home Berhampur to Vishakhpatnam for higher treatment. The nominee complainant also submitted the documents on 17.05.2010 before O.P.No.2. During the course of hearing of the consumer dispute, the learned counsel for the complainant argued that the present petitioner is the mother of the deceased policy holder and she was also nominated as nominee of all three policies in dispute by the deceased policy holder which also beyond any doubt or dispute. He also argued that when the policies were in force and valid, unfortunately the insured was died due to falcifarum malaria fever on 28.10.2009. The matter was intimated to the knowledge of O.P.No.2 vide letters dated 15.4.2010 and 17.05.2010 and the O.Ps assured to settle the claim shortly but did not settle and slept over the matter. The nominee complainant in her letter dated 17.05.2010 complied the documents required by the O.P.No.2 but surprisingly did not settle the claim. The O.P.No.1 in his email dated 14.6.2010 replied that ‘the claim is in process and will be settled shortly’. It is also contended that the O.P.No.1 in his email dated 29.06.2010 also expressed apology for his delay in settlement of the claims where it was categorically assured to the complainant to settle the claim within the next 6-7 days. However, after repeated reminder and requests the claims were not settled and the complainant was harassed due to delay in settlement of the claims. So, the learned counsel for the complainant prayed to direct the O.Ps to pay the basic sum assured under the policies and to award interest, cost and compensation in the interest of justice.
In reply to the above contentions, learned counsel for O.Ps vehemently argued that the complaint filed by the present complainant is not maintainable and has attempted to misguide, mislead and has suppressed material facts before this Forum, since the complainant has breached the pious relationship of Uberrima Fides between the insurer and insured. It is also contended that the life assured in the application form has misstated material facts pertaining to his availing of previous insurance policies and past medical history which are required exclusively to disclose. In the instant case, the life assured by suppressing the material facts about his health has taken the policy which is tantamount to suppression of material facts. It is also contended that the life assured before availing the present polices had taken a number of insurance policies from various insurance companies and that was not disclosed during obtaining of these policies which are mentioned in para-4 and 6 of the version filed by the O.Ps. It is further argued that on detailed enquiry/investigation it was found that the life assured was diagnosed as a case of HIV positive vide a report dated 28.06.2007 which was two years prior to the signing of the application and the same is material suppression and is manifest from the answer given in policy application more fully detailed at para-8 in page-5 of the version filed by O.Ps. Since the life assured has suppressed material facts about his life and previous policies, the O.Ps has the right to repudiate the claims of complainant vide its letter 31.7.2010 and 23.8.2010 which are annexed as ‘C’ and ‘D’ in the version of the O.Ps. In view of the above, the learned Forum may be pleased to dismiss the complaint petition as being frivolous and vexatious and pass orders to pay cost under Section-26 of the Consumer Protection Act, 1986.
5. We heard the above pleadings of the learned counsels for the parties and perused the same along with written arguments and documents on record. We have also verified the policy documents, letters and other materials relied on by both the complainant as well as O.Ps. After perusal of the pleadings and going through the case record, it appears that the sole point of dispute is “suppression of material facts by the life assured with regard to his health and previous policies”. Hence, in this dispute, the only point to be decided by this Forum, whether there was any material suppression by the deceased life assured while obtaining the policies in dispute?
From the arguments of the learned counsel for the O.Ps, it appears that the O.Ps have contended that the life assured has suppressed material facts pertaining to history of his health and previous policies taken by him. It is on record that the O.Ps have mentioned the name of other policies in their written version but simultaneously argued in their reply on merits vide para-3 of written version that the insurer is precluded from having more than one policy and or is precluded from insuring himself with more than one insurance company, but it was never informed to the life assured during taking of insurance policies by him. There is no documentary evidence placed on record that the life assured was informed about it. It is also contended by the O.Ps in their letter dated 31.7.2010 that the life assured has taken at least one more policy from another insurer for a high sum assured. The O.Ps have stated in the said letter that “after the issuance of the above polices by BSLI the life assured had taken at least one more policy from another insurer for a high sum assured”. We would like to point out here that how the life assured could have indicated in the application form about availing of the policies taken at a later point of time and how it can be treated as suppression of material facts about his polices? The O.Ps have also contended that the life assured was diagnosed as HIV positive patient as per the testing report of Pathology Department, M.K.C.G. Medical College, Berhampur, submitted by the O.Ps along with other documents placed in the case record. While examining the veracity of the documentary evidence regarding HIV positive of the deceased life assured from the pathology test report, it is found that the testing report is a piece of secondary evidence and the original copy of the pathology report was not placed before this Forum for verification. The report is also not a certified copy of the original report and it is merely a photocopy where the name has been mentioned as D. Krishna without father’s name. The address of the patient has been mentioned as ‘Berhampur’ whereas the policy holder belongs to Surya Nagar, Kukudakhandi, Dist-Ganjam, as per his address recorded in the policy application form. As per Evidence Act, documents must be proved by primary evidence. In the instant case, the laboratory test report produced by the O.Ps is neither a certified copy of the original document and nor proved by primary evidence before this Forum. Hence, in our view, the HIV positive testing report produced by the O.Ps has got no evidential value, so we are not inclined to accept the same. The Opposite Parties have failed to lead any concrete evidence regarding HIV infection of the life assured and nothing has been placed before us by the O.Ps which would persuade us to hold otherwise. Thus, in our considered view, the allegations regarding suppression of material fact pertaining health of the deceased life assured is not sustainable under law.
Besides the above, as per the merit of the case, the nominee complainant intimated the death of the life assured on 15.4.2010 to O.Ps that her son was died due to falcifarum malaria on 28.10.2009 and as per the request of O.P.No.2 she also submitted all documents before the said O.P. on 17.5.2010. The O.P.No.1 also replied the matter to the nominee complainant through email dated 10.06.2010 with the reply that “the claim is in process and will be settled shortly”. Even they have never stated that the policies are not valid and the present complainant is not the nominee of the policies in dispute. The O.P. No.2 in his email dated 29.06.2010 also begged apology for the delay caused in settlement of the claims with the assurance to settle the matter within the next 6-7 days. However, the O.Ps repudiated the claim of the nominee complainant on 31st July 2010 on the ground of suppression of material facts regarding health and previous policies taken. The O.Ps miserably failed to prove suppression of material facts regarding health and previous policies of the deceased life assured hence the repudiation of claims of the nominee complainant by the O.Ps is unjustified. The reasons assigned by the O.Ps for repudiation of insurance claims of the nominee complainant is not cogent and convincing in view of the discussion held above. Hence, in our considered view, the O.Ps are deficient in service for non-settling the genuine insurance claims of the nominee complainant.
As a sequel to our aforesaid discussions, we allow the claims of the nominee complainant against all O.Ps and the O.Ps are liable to settle all the three insurance policies of the deceased policy holder as mentioned above within a reasonable period. As per the policy condition, the O.Ps are liable to pay the basic sum assured under all the three policies mentioned above with interest. Our finding is also fortified with the decision of the Hon’ble National Commission reported in 2011(2) CPR (NC) P.30 where it was held “Alleged suppression of material fact by insured must be proved by evidence”. In the instant case, the O.Ps failed to lead any concrete documentary evidence with regard to their contention. In the light of the above discussions and aforesaid decision, the case of the complainant is allowed by this Forum.
6. In the result, we allow the case of the nominee complainant against all O.Ps. The O.Ps are directed to pay the basic sum assured under all the three policies discussed above (that is amounting to Rs.8,52,845/-) along with interest @ 4% per annum from the date of filing of this case till actual realization of the same within two months of receipt of this order. The O.Ps are also directed to pay a modest cost of Rs.3,000/- towards cost of litigation within the same period failing which the entire amount shall be realized from the O.Ps with interest @6% per annum under Section 25/27 of the Consumer Protection Act, 1986. The case is disposed off accordingly.
7. The order is dictated and corrected by me on this 25th day of June 2014. Copy of the order shall be supplied to all parties free of cost as per rule.
( Dr. N. Tuna Sahu )
Member
I Agree ( Miss S. Pattnaik )
President
I Agree (Mrs. Minati Pradhan)
Lady Member
