BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.102/2009 Order dated this the 15th day of January 2010 COMPLAINANT/S Smt.Jayasheelamma W/o Siddegowda, R/at Goolikoppalu Village, Basaralu Hobli, Mandya Taluk, Mandya District. (By Sri.D.C.Rame Gowda., Advocate) -Vs- OPPOSITE PARTY/S The Manager, Birla Sunlight Insurance Company Ltd., 2nd Floor, Canara Bank Building, 1st Cross, Vidya Nagara, K.R.Road, Mandya 571 401. (By Sri.N.S.Satish Chandra., Advocate) Date of complaint 26.08.2009 Date of service of notice to Opposite party 05.10.2009 Date of order 15.01.2010 Total Period 3 Months 10 Days Result The complaint is allowed, directing the Opposite party to pay the insurance amount of Rs.8,00,000/- with cost of Rs.2,000/- within two months, failing which the Opposite party is liable to pay interest at 7% p.a. from the date of complaint. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite party claiming insurance amount of Rs.8,00,000/- with maturity benefit of Rs.70,000/- and interest. 2. The case of the Complainant is that her brother Odu Lingegowda had obtained a policy from Opposite party Insurance Company on 19.08.2008 under policy No.001870931 for Rs.8,00,000/-, nominating the Complainant as a nominee. Unfortunately, the insured Odu Lingegowda died on 30.08.2008. After death of the insured, the nominee of the policy Complainant gave claim form to the Opposite party Office at Mandya for settlement of the policy amount. But, the Opposite party has not at all settled the policy without any reason and gave untenable reason. In spite of request, the Opposite party has not settled the claim. Therefore, the Opposite party has committed deficiency in service. Therefore, the present complaint is filed. 3. The Opposite party has filed detailed version admitting that the Odu Lingegowda had obtained policy for Rs.8,00,000/- and the Opposite party has issued the policy accepting the proposal application dated 21.07.2008 and within 11 days, the assured died on 30.08.2008. The life assured had replied to the questions Nos.IX(D) 1, 2(A) and 3(C) in the negative about his past history of health. The investigation revealed that the life assured was suffering from diabetes and regularly purchasing medicines and the life assured had deliberately suppressed the material facts. The Opposite party would not have issued the policy, if true facts were disclosed regarding the previous medical history. The policy is issued in utmost good faith based on declaration statement made by the insured. Further, the claimant (Complainant) herself as mentioned in the claimant statement that for past 10 years, the life assured was suffering from diabetes. This crucial fact was not disclosed by the life assured at the time of obtaining the policy. Therefore, the Opposite party has rightly repudiated the claim and the Opposite party has not committed deficiency in service. 4. During trial, the Complainant and two witnesses are examined and Complainant has produced Ex.C.1 to C.3. On behalf of the Opposite party one witness is examined and Ex.R.1 to R.3 are produced. 5. We have heard both the sides. 6. Now the points that arise for our considerations are:- 1. Whether the Opposite party proves that the insured has suppressed the material fact at the time of obtaining the policy? 2. Whether the Opposite party has committed deficiency in service in repudiating the claim? 3. What order? 7. Our findings and reasons are as here under:- 8. POINTS NO.1 & 2:- The undisputed facts are that one Odu Lingegowda, the brother of the Complainant had obtained a insurance policy from the Opposite party for Rs.8,00,000/- on 19.08.2008 and he died on 30.08.2008 as per Ex.C.1 and at that time, the insured had given a application to the Opposite party for obtaining the policy and in column no.9(D) to question Nos.1, 2, 3 has answered in the negative about his health condition or any treatment and as per Ex.R.3, he has given negative answer before the medical officer about the diseases. So according to the Ex.R.2 & R.3, he was not suffering from any diseases and not taking any treatment. As per Ex.R.2 his date of birth is 20.06.1967 and so he died at the age of 41. It is an admitted fact that the Complainant gave a claimant statement as per Ex.R.1, claiming the insurance amount as a nominee and Opposite party has repudiated the claim as per the letter dated 30th December 2008 and to the legal notice Ex.C.2, the Opposite party has sent reply Ex.C.3. 9. The contention of the Opposite party is that though the insured was suffering from diabetes at the time of obtaining the policy had given false statement suppressing the material fact and died within 11 days and the Complainant herself has admitted in her claimant statement that her brother was suffering from diabetes since last 10 years and died due to heart attack. 10. Admittedly, the Opposite party has not let in any documentary evidence to prove that the assured was suffering from diabetes at the time of obtaining the policy and he was under treatment for diabetes. Mainly, the Opposite party has relied upon the statement said to have been given in the claimant statement Ex.R.1. In Ex.R.1 claimant statement at para-4 to the question, if the insured was ill, state the nature and the duration of illness and the date illness was first diagnosed it is written as last 10 years sugars. These words are marked with green colour. The contention of the Complainant side is that it is a created statement and therefore it is marked with green colour and the Complainant is a illiterate and Ex.R.1 document was in the custody of the Opposite party and this fact was not mentioned in the repudiation letter. 11. The contention of the Opposite party is that the repudiation letter is produced at the time of arguments and cannot be looked into. But, it is the document issued by the Opposite party and there is no reason to not to accept it and this repudiation letter is addressed to the Complainant. As per this repudiation letter, as per the investigation the life assured was suffering from diabetes prior to issuance of the policy and he was under treatment for the same and not stated that the Complainant herself has stated in the claimant statement application that for past 10 years, the life assured was suffering from diabetes. 12. The learned counsel for the Complainant has relied upon the decision reported in 2008 CTJ page 780 in the case of New India Assurance Co., Ltd., -Vs- Mohinder Kaur wherein it is held that when the insured had no knowledge of the disease when he filled in the proposal form and he came to know of the disease only when he suffered from severe headache about the brain tumour, the insurance company cannot repudiate on the ground of suppression of material fact. Further, in the decision reported in I (2006) CPJ 494 by Delhi State Commission, Oriental Insurance Co., Ltd., -Vs- Madhusudan Sharma, it is held that the diseases like hypertension, diabetes etc., so common and are always controllable unless and until patient has undergone long treatment including hospitalization and undergoes operation etc., in near proximity of taking policy cannot be accused of concealment of material fact. 13. Now, if we consider the material on facts, it has to be held that the Opposite party has failed to prove that the deceased life assured had suppressed the material fact deliberately giving false answers by giving negative answers to the question to the proposal form, though he was suffering from diabetes from last 10 years prior to the issuance of the policy, because the Complainant -nominee is a illiterate lady who does not know which is in English version and it is filled in English. There is no explanation has to why the sentence in column no.4 as per Ex.R.1 is marked with green colour. This document was in custody of the Opposite party. Admittedly, in the repudiation letter, there is no allegation that the claimant herself has stated that the assured was suffering from diabetes from last 10 years. Only after the legal notice, after lapse of 7 months. It is stated that claimant life assured was suffering from diabetes for past 10 years. So, if actually these words were filled up in Ex.R.1 when the Complainant gave statement, there was no reason at all for the Opposite party to mention the same in the repudiation letter. But simply stated that investigation revealed that the deceased was suffering from diabetes and taking treatment by purchasing the medicines from the medical shop, but no treatment documents or prescriptions, even the owner of the medical shop who disclosed that the life assured was purchasing the medicines is not examined and not treatment or diagnosis documents are produced. So, the improvement of the Opposite party taking the defence that the Complainant herself has given statement that life assured was suffering from diabetes from last 10 years cannot be accepted. There is strong force in the contention that there is possibility of inserting the words last 10 years sugars and there is no explanation has to why these words are marked with green colour. Naturally, the illiterate person takes the assistance of the Insurance Office Officials for filling up the claim application and put the LTM as per their direction without verifying the contents of the application and the insurance company will be the master of this application and controller in case of illiterate claimants. Further, the Complainant and her two witnesses have testified that the life assured was not suffering from diabetes. Now a days, in so many cases a person will not be knowing the heart diseases, but all of a sudden, he suffers from heart attack and dies immediately due to chest pain. If a person sustaining chest pain got treatment and than only he would come to know the nature of disease he was suffering. As observed by the Honble State Commission, the diseases like hypertension, diabetes are natural or common and controllable and unless and until a proper test dialysis made he will not come to know the disease he was suffering. In the present case also there is no iota of evidence placed by the Opposite party to prove that the deceased assured had the knowledge of disease of diabetes and suppressed the same while applying for the insurance policy, except relying upon the disputed statement said to be given by the Complainant in Ex.R.1, which cannot be acceptable in the present circumstances of the case. Therefore, the Opposite party has failed to prove that the life assured had suppressed material facts by giving false answers to the questions in the proposal application about the diseases and treatment. In view of the above circumstances, the repudiation of the claim by the Opposite party is not justified and therefore, the Opposite party has committed deficiency in service in not settling the insurance claim to the Complainant and so the Complainant is entitled to the insurance claim amount. The Complainant has claimed insurance amount of Rs.8,00,000/- and maturity benefit of Rs.70,000/-. But, the Complainant is not entitled to the maturity benefit amount, because the insurance policy is not matured as the assured died within one month from the date of policy and so the Complainant is entitled to only policy amount of Rs.8,00,000/-. 14. In the result, we proceed to pass the following order; ORDER The complaint is allowed, directing the Opposite party to pay the insurance amount of Rs.8,00,000/- with cost of Rs.2,000/- within two months, failing which the Opposite party is liable to pay interest at 7% p.a. from the date of complaint. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 15th day of January 2010). (PRESIDENT) (MEMBER) (MEMBER)
