Date of filing:16.05.2013

Date of disposal:29.05.2014  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.

PRESENT: - Sri S.Niranjan Babu, B.A., B.L., President (FAC)

Smt. M.Sreelatha, B.A.,B.L., Lady Member

Thursday, the 29^th day of May, 2014

C.C.No.50/2013

Between:

K.Anjinmma @K.Anjamma,

D.No.7/467, Geetha Nagar,

Dharmavaram Town,

Ananthapuramu District.                          …                         Complainant

Vs.

        Birla Sunlife Insurance Company Limited,

        Rep. by its authorized Signatory,

        G Crop Tech Park, 5 & 6 Floor,

        Kasar Wadavali, Ghodbunder Road,

        Thane – 400 601.                                        …                    Opposite Party

This case coming on this day for final hearing before us in the presence of Sri K.Lakshmanachar & Sri S.Surendra Chary, Advocates for the complainant and Sri N.U.Devanath Reddy, Advocate for the Opposite Party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:

O R D E R

Sri S.Niranjan Babu, President (FAC): - This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite party claiming a sum of Rs.17,50,000/- towards policy assured amount, Rs.40,000/- towards mental agony and Rs.10,000/- towards costs of the complainant  with interest at 18% P.A. from the date of default till the date of realization.

2.       The brief facts of the complaint are that: - The complainant is the wife of one K.Venkaiah who has taken a policy during his life time for a sum of Rs.17,50,000/- from the opposite party.  The said policy was issued by the opposite party on 05.06.2012.  The complainant’s husband paid a sum of Rs.6,572.09 towards the premium on 05.06.2012 and a policy bearing No.005607644 was issued by the opposite party and the complainant is the nominee to the said policy. Subsequently the complainant’s husband died on 18.11.2012 and after the death of her husband she submitted claim forms to the opposite party on 31.12.2012.   Later the claim of the complainant was reputed stating that the deceased was suffering from Right Hemiplegia with Facial Palsy, Hemoerhagic Stroke and Hypertension prior to his application for taking the insurance policy.  The complainant submits that actually the policyholder was not having any past history of ill health but subsequently the complainant’s husband died suddenly due to Cardio Respiratory problem.  After repudiation by the opposite party the complainant got issued a legal notice on 12.03.2013 to the opposite party requesting to consider her claim.  The said notice was received by the opposite party but there was no reply for the said notice.  The complainant submits that the opposite party has repudiated the claim on false plea that the insured has suppressed the material facts.  The complainant submits that the repudiation of the complainant’s claim amounts to deficiency of service by the opposite party as the reason for repudiation was not correct. Hence this complaint is filed by the complainant for the sum assured under the policy i.e., Rs.17,50,000/-, Rs.40,000/- towards mental agony and Rs.10,000/- towards costs of the complaint and interest from the date of repudiation till the date of realization.

2.       The opposite party filed counter stating that the complainant has filed this complaint with malicious and malafide intention.  The opposite party submits that the complainant filed this complainant against the opposite party on the ground that there is deficiency of service on the party of the opposite party. The claim of the complainant was repudiated due to suppression of material facts by the complainant’s husband.  The opposite party submitted that the life assured K.Venkaiah after completely understanding the terms and conditions of the insurance policy   had voluntarily applied for an insurance policy vide proposal form bearing No.46955849 dt.04.06.2012 wherein the complainant  is made the nominee in the said proposal form.  The deceased life assured has given relevant details and information in the prescribed form and paid premium of Rs.6570/- payable half yearly for a term of 30 years.  And in the said application the deceased life assured has stated in the medical history questionnaire answering in negative as follows.

3.       Further the opposite party submitted that as per section 45 of insurance act,1938 no policy of life insurance effect before the commencement  of this act shall after the expiry  of  two years  from the date of commencement of this  act and no policy of life insurance  effected be called  in question by an insurer on the ground that statement  made in the proposal or in in any report of a medical officer or reference or friend  of the life insured or in  any other documents leading to the issue of the policy was in accurate or false , unless the insurer  shows that such statement  was on a material matter or suppressed facts which it was material to disclose  and that it was fraudulently made by the  policyholder and that the policyholder knew at the time of making it that the statement was false or that it suppressed  facts which it was material to disclose. Further the opposite party submitted that in the proposal form, the personal statement and the life insurance policy all contain a special clause putting the insured on notice that in case of any such deliberate misrepresentation, the contract of insurance would become void and the amounts paid there under shall be forfeited. Basing on the information and declaration containing in the application form and further believing the same to be true.  After payment of initial premium the opposite party has issued the policy bearing No.005560744 dt.05.06.2012 to the deceased policyholder.  Thereafter the policy documents along with schedule and the terms and conditions and a welcome letter was sent to the deceased policyholder. Subsequently on 31.12.2012 the opposite party received a death claim intimation along with claimant’s statement and death certificate of the deceased policyholder.  After the receipt of death claim by the opposite party, the opposite party as per the terms and conditions of the policy being the early claim conducted the investigation for the said claim.

4.       In the course of investigation it was established that the deceased was diagnosed of Right Hemiplegia with Facial Palsy, Hemorrhagic Stroke and Hypertension much prior to the signing of the proposal form. Further the opposite party submitted that the medical records of RDT Hospital at Battaalapalli, Anantapur procured during the investigation establishes that the deceased life assured was under treatment for his ill health which were not disclosed by the deceased life assured in the proposal form.  Thus basing on the above medical records as the deceased life assured has willfully suppressed the material facts hence the claim of the complainant was repudiated by letter dt.31.01.2013. Hence, there is no deficiency of service on the part of the opposite party, the opposite party has rightly repudiated the claim on the ground that the deceased life assured has misrepresented the facts in his proposal form.

5.       Basing on the above pleadings, the following points that arise for consideration are:-

1. Whether there is any deficiency of service on the part of the opposite party?

ii)      To what relief?

6.       In order to prove the case of the complainant, the complainant has filed his evidence on affidavit and marked Exs.A1 to A5 documents. On behalf of the opposite party, the opposite party filed evidence on affidavit and marked Ex.B1 to B4 documents.

7.       Heard both sides

8.       POINT NO 1:- The counsel for the complainant submitted that the complainant’s husband has taken insurance policy from the opposite party on 05.06.2012 for a sum of Rs.17,50,000/- by paying a  premium of Rs.6,572/-.  The counsel for complainant submitted that the opposite party has issued a policy bearing No.005607644 dt.05.06.2012 for a period of 30 years and the premium is payable half yearly.

9.       The counsel for the complainant submitted that later the complainant’s husband died on 18.11.2012 due to sudden illness and Cardio Respiratory problem.  Subsequently the complainant has made a claim to the opposite party on 31.12.2012 claiming the sum assured along with the necessary documents.  The counsel for the complainant submitted that the claim of the complainant was repudiated by the opposite party stating that the deceased was suffering from Right Hemiplegia with Facial Palsy, Hemoerhagic Stroke and Hypertension. After repudiation letter was received by the complainant then the complainant issued legal notice on 12.03.2013 to the opposite party to consider her claim but there was no response for the said notice.  The counsel for the complainant submitted that the repudiation of the complainant’s claim without any proper justification and the non-reply to the legal notice issued by the complainant shows their negligence which is nothing but deficiency of service for which the opposite party is liable.  Hence this complaint is filed by the complainant claiming the sum assured under the policy along with interest @18% P.A. from the date of repudiation till the date of realization and also to award Rs.40,000/- towards mental agony and Rs.10,000/- towards litigation expenses.

10.     The counsel for the opposite party submitted that there is no dispute with regard to the issuing of the policy to the complainant’s husband.  The counsel for the opposite party submitted that the said insurance policy was issued to the deceased life assured after the deceased life assured has submitted his proposal form in which the deceased life assured has misrepresented the facts with regard to his health condition as follows.

 The counsel for the opposite party submitted that later within a span of six months the complainant’s husband died and the complainant made a claim for the sum assured under the policy.  The counsel for the opposite party submitted that as the deceased died within six months from the date of commencement of the policy the opposite party ordered for an investigation as it was an early claim and in the course of investigation it came to light that the deceased life assured was suffering from Right Hemiplegia with Facial Palsy, Hemoerhagic Stroke and Hypertension prior to his application for insurance.  Further the counsel for the opposite party submitted that the medical records of the deceased life assured clearly establishes that he has pre-existing disease prior to taking the policy. Further the counsel for the opposite part argued that insurance policy is contract in which both insurer and insured have to abide  by the terms and conditions of the policy and the policy is issued basing on the information provided by the deceased life assured with god faith. Further the counsel for the opposite party submitted that as the deceased life assured in the proposal form has declared negatively in the questionnaire in 11 € and 14 (i) basing on the information provided by the decease life assured the opposite party  has issued the policy in good faith. But in fact the deceased life assured was suffering with Right Hemiplegia with Facial Palsy, Hemoerhagic Stroke and Hypertension, the complainant has not disclosed the same at the time of taking the policy which is nothing but suppression of material facts.  The counsel for the opposite party argued that the opposite party has repudiated the claim of the complainant rightly as the deceased life assured has suppressed the material facts at the time of taking the policy.  Hence, there is no deficiency of service on the part of the opposite party and the opposite party is not liable to pay any amount towards sum assured under the policy or any amount towards mental agony or towards costs of the complaint.

11.     After hearing the arguments of both side counsel and perusing the documents submitted by both sides the fact remained that there is no dispute with regard to the issue of the policy to the complainant’s husband.  The counsel for the complainant argued that there is no suppression of material facts by the deceased life assured at the time of taking the policy as he was hale and healthy.  Further the counsel for the complainant argued that the opposite party repudiated the claim without any proper justification. Hence the opposite party has caused deficiency of service. The above argument cannot be considered because it is the duty of the deceased life assured to disclose his health condition prior to taking the policy, but in the instant case the deceased life assured has not disclosed the facts to the opposite party prior to his taking the policy and believing the deceased life assured health statement the  opposite party has issued the policy after receiving the first premium amount with a good faith but within a span of six months the deceased life assured expired and the complainant  made a claim for the sum assured of Rs.17,50,000/-.  As per the insurance act the opposite party has the right to investigate in case of death within a period of two years as the claim is an early claim. In the instant case the some procedure was followed and in their investigation  the opposite party came to know that the deceased was under treatment prior to the date of taking the policy.

12.     The said investigation report is marked as Ex.B3 in which the investigator has filed the medical and test reports of the deceased which clearly establishes that the deceased life assured has misrepresented the facts while taking the policy.  Hence, we are of the opinion that as the deceased life assured has suppressed the material facts with regard to his health condition and the opposite party has issued the policy in good faith believing the words of the deceased life assured.  In the proposal form had the complainant has disclosed his ill health the opposite have might have issued the policy on certain terms or might not have issued a policy. Considering the argument of the opposite party that the deceased life assured has misrepresented the facts and obtained a policy form the opposite party fraudulently for which the opposite party is not liable. Hence, the repudiation of the claim by the opposite party cannot be treated as deficiency of service and the opposite party is not liable to pay the sum assured under the policy to the complainant.   Hence, we are of the view that there is no deficiency of service on the part of the opposite party. As the opposite party has rightly repudiated the claim there is no question of mental agony to the complainant.

13.     In the result the complaint is dismissed without costs.

Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 29^th day of May, 2014.

                  Sd/-                                                                     Sd/-

              LADY MEMBER                                                  PRESIDENT (FAC)

 DISTRICT CONSUMER FORUM                             DISTRICT CONSUMER FORUM

             ANANTAPUR                                                         ANANTAPUR 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

ON BEHALF OF THE COMPLAINANT:

NIL

ON BEHALF OF THE OPPOISITE PARTY

-NIL-

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT

Ex.A1          Photo copy of policy bearing No.005607644 issued by the opposite party in favour of the deceased K.Venkataiah.

Ex.A2          Original repudiation letter dt.31.01.2013 issued by the opposite party to the complainant.

Ex.A3          Office copy of the legal notice dt.12.03.2013 got issued by the complainant to the opposite party.

Ex.A4          Served postal acknowledgement signed by the opposite party.

Ex.A5          Death certificate of K.Venkaiah dt.23.11.2012 issued by the Dharmavaram Municipality.

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY

Ex.B1          Photo copy of proposal form relating to deceased K.Venkaiah submitted to the opposite party.

Ex.B2          Photo copy claimant’s statement by the complainant to the opposite party.

Ex.B3          Investigation reported dt.23.01.2013 M.S.Prasad investigator submitted to the opposite party.

ExB4           Photo copy repudiation letter dt.31.01.2013 issued by the opposite party to the complainant.

                                           Sd/-                                Sd/-

            LADY MEMBER                                                            PRESIDENT (FAC)

 DISTRICT CONSUMER FORUM                             DISTRICT CONSUMER FORUM

             ANANTAPUR                                                         ANANTAPUR