DOF. 26 / 10 /06 DOO. 15 / 7/ 10 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 15th day of July 2010 C.C.No.248/2006 Ayisha.N.K., D/o/Late N .K.Saphiya, Nadukandiyil House, P.O.Pathayakunnu, Pattiyam. Complainant (Rep. by Adv.K.M.Pradeepnath) 1. Branch Manager, Branch No.1, LIC of India, NCC Road, Thalassery. 2. Divsional Manager, LIC of India, Jeevan Prakash, Kozhikode Division, Kozhikode. (Rep.by Adv.O.K.Saseenran for OPs 1 & 2) 3. Haris.N.K, 4. Jaseela.N.K., 5. Anwar 6. Rahmath 7. P.P.Ibrahim Opposite Parties (Ops 3 to 7 are residing Nadukandiyil House, P.O.Pathayakunnu, Pattiyam) O R D E R Smt.K.P.Preethakumari, Member This is a complaint filed under section 12 of consumer protection act for an order directing the opposite parties 1 & 2 to pay Rs.50,000/- which include sum assured of Rs.30,000/- and with interest at12% from 30.3.05 with cost. The case of the complainant is that her mother Smt. Saphiya had subscribed a New Janaraksha Plan with profits (accident benefit) of LIC, having policy No. 793986655 which was taken on 5.1.04. The sum assured is Rs.30, 000/- and the premium payable was Rs.640/-quarterly. The nominee was the complainant and the date of maturity of the policy as 5.1.17. the complainant had availed policy as per the persuasion of agent of 1st opposite party and was not in a position to understand the condition of policy since complainant’s educational qualification is very low. As directed by the agent the above said Saphiya had only put her signature where ever the agent told her to put her signature and she had made available all facts pertaining to her health to the agent. The above said Saphiya used to pay all premium amount of the above said policy regularly till her death on 25.10.04 and after her death the complaint made a claim by surrendering the original policy certificate to1st opposite party. But opposite party issued a letter to complainant to submit various documents pertaining to proof of age of complaint and other documents of Saphiya. Even though the complainant submitted necessary documents, they are not ready to settle the claim hence the complainant had issued a lawyer notice dt.2.3.05 to opposite parties 1 and 2. Opposite party instead of settling the claim issued a reply stating irrelevant maters. The opposite parties 1 and 2 have liability to pay the sum assured to the nominee. The non-settlement of the claim is due to the deficient service of opposite parties 1 and 2 and due to this the complaint had suffered o much of mental and physical agony and the opposite parties 1 and 2 are liable to compensate the complainant. Hence this complaint. Upon receiving the notice from the Forum opposite parties 1 and 2 filed their version admitting that late Saphiya had subscribed a policy on 5.1.04 and the sum assured was Rs.30,000/- and premium was Rs.640/- quarterly and the above said policy holder died on 25.10.04 and had paid the premium regularly. They denied the averments that the agent Vijina R forcibly persuaded the complainant to avail the policy, that the educational qualification of Saphiya was very low and was not in a position to properly understand and fill the proposal form and hence all information’s are disclosed to the above said agent and that the agent collected several signatures of Safiya etc. The insured had deliberately under estimated her age in the proposal form in order to induce the opposite party to issue policy. She has declared in the proposal form that her age as on the date of proposal i.e. on 2.1.03 was 38 years. This under estimation was done deliberately because if the proposer was above 40 years at the time of submitting the proposal for insurance opposite party should have called for medical examiners report and the under writing decision might have been note the present age as the deceased was not healthy as per the hospital record and she has undergone hysterectomy. The insured died on25.10.04 within one year form the date of commencement of risk and being an early claim on investigation as per rules was conducted. From the documents and details collected and also from the claimant’s statement it is revealed that the insured had been suffering from serious illness prior to taking of the above said policy which she had concealed in the proposal. She was a known case of hypertension and Diabetes Mellitus for the past 18 years. She had been suffering from Bronchitis Asthma and cellulites right foot. The policy holder suppressed these material facts and information and had given false declaration about her state of health and so the policy came into existence. But for false deceleration and statement the opposite party would not have entered into the contract of insurance with the insured. The assured was a literate and was fully aware of the nature and importance of the contract as entered into since all details in the proposal form submitted by her had been filled as per her instruction and the entire contents were explained to her in her Vernacular before she signed it. Since the assured had deliberately omitted to disclose the adverse circumstances with regard to her health and so there is utter suppression and omission made. The suppression of material facts makes the insurance contract null and void. Since the investigation conducted by the opposite party revealed these facts after applying the mind to the facts collected and claim made by the complainant, opposite party repudiated the claim bonafide. No mental agony can be attributed in the case. Since it was a false and illegitimate claim and there is no delay in disposing the claim. The decision to repudiate the claim was taken on applying the mind fully to the facts and other relevant and material facts and the same was communicated to the claimant properly and hence thee is no deficiency of service on the part of opposite party and hence the complaint is liable to be dismissed. Opposite parties 3 to 7 filed version submitting that they have no objection to any amount being paid to the complainant as the legal heir of N.K. Saphiya as per the policy. On the above pleadings the following issues were raised for consideration. 1. Whether there is any deficiency on the part of opposite parties? 2. Whether the complainant is entitled to any relief? 3. Relief and cost. The evidence in this case consists of the oral testimony of DW1 and 2 and Exts.A1 to A4 and B1 to B19. Issue Nos.1 to 3 The case of the complaint is that she is the nominee and daughter of deceased N.K.Safiya, the policy holder of opposite party’s new Janaraksha plan having No.793986655 valid from 5.1.04 to 5.1.17. But she was died on 25.10.04. But the claim was repudiated by opposite parties 1 and 2 on untenable grounds of willful suppression in the declaration with respect to age, health and medical particulars of deceased Saphiya and hence there is deficiency on the part of opposite parties 1 and 2 in repudiating the claim. The complainant has produced documents Exts.A1 photo copy of insurance policy, A2 Death certificate, A3 copy f lawyer notice and A4 reply. The opposite party contended that complaint is not entitled to get any compensation since they have suppressed material facts at the time of proposal and in order to prove their case they have produced documents such as B1 proposal form, B2 policy with conditions, B3 and 4 are discharge summaries from Kayparal Hospital, B5 case sheet form Tely medical centre, B6. discharge summary from Tely medical centre, B8, intimation, B9 claim application, B10 medical attendance certificate, B11 certificate of hospital treatment, B12 claim investigation report, B13 letter dt.12.2.05, B14 copy of lawyer notice, B15 reply, B16 letter dt.30.3.05, B17 acknowledgment card,B18 copy of identity card, B19 copy of ration card. The opposite parties 1 and 2 admit that the deceased Saphiya N.K having valid Insurance policy at the time of her death. In a cont5ract of insurance there is a requirement of ‘Uberrima fides’ ie. Good faith on the part of parties to it. It is the fundamental principles of insurance law that utmost good faith must be observed by the contracting parties. Thus the assured is under a solemn obligation to make full disclosure of material facts which may be relevant for the insurer to take into account while deciding whether the proposal should be accepted or not. The date of proposal is on 20.1.04 and the date of death of the insured is on 25.10.04. As per section 45 of insurance Act 1938, since the claim is within two years of the date of commencement of risk, the opposite party had conducted an investigation and produced Ets.B3 to B7 and B10 to B12 and Dr.Ramakrishnan who had issued Ext.B6 was examined as DW2. The Ext.B6 is the discharge summary as per which the insured was admitted in the Tely medical Centre from 3.10.04 to 14.10.04 which is after the proposal. In it the clinical history was stated as known DM with PN, APD, COPD and CAD on treatment, admitted with C/o. severe breathlessness and sweating, Cellulites Rt. Foot and Rt. Sole and EA+. The DW2 deposed before the Forum that the insured was a diabetic for the last 18 years and she had also acid petic disease, chronic obstetric pulmonary disease, and coronary artillery disease. He further deposed that she is a known patient of heart disease. From the documents produced and from the deposition of DW2 it is seen that the insured has suffering from various illness prior to proposal form such as diabetes mellitus, hypertension, and bronchitis asthma and cellulites right foot. In Ext.B10 and B11, the primary cause for death is shown as HTW, CAD, LVF, DM, bronchial asthma, Cellulites right foot and is evident that she has been suffering the above disease for 18 years. But the Ext.B1, the proposal form, she had answered for the question with respect to disease and health condition as “No”. While going through Ext.B1 it is seen that the assured has not disclosed any of the information. As per the proposal form, the immediate cause of death is shown as heart attack and the expert witness doctor also deposed that she is known patient of heart disease. So the opposite parties 1 and 2 proved that the complainant had concealed the disease which is a direct cause of death. In Life Insurance corporation of India and others Vs. Dr.P.S.Aggarwal which was reported in I(2005)CPJ 41, the Hon’ble National Commission held that the onus on company to prove material concealment of disease which directly proved fatal. In Sutwsant Kour Sandhu vs. New India Assurance co. reported in 2009 Vol IV.CPJ 8, the Hon’ble Supreme court held that a policy can be repudiated if any material fact is suppressed and a material fact would mean any fact that effect the decision of the insurer in accepting the risk. Yet another contention of the opposite parties 1 and 2 is that the insured had falsely stated her age as 38 with an intention to induce opposite party to issue a policy under non-medical scheme and they further contended that she has stated her age as 38, knowing very well that at the time of taking out the policy she was aged more than 40 and if she had shown age as above 40, she would be subjected to medical examination as and it would be revealed that she is suffering many ailments prior to policy. By considering the above conclusion that she had suffered ailments, these contentions of the opposite parties 1 and 2 maybe true. The contention of complainant that the agent has filed up the proposal form. In life Insurance Corporation of India vs. M. Gouri and others, the Hon’ble National Commission held that while filling of the proposal form an agent act as an agent of insured for whose benefit the insurance to be obtained. Hence we are of the opinion that there is no irregularity or deficiency of service on the part of opposite parties 1 and 2 in repudiating the claim and hence the complaint is liable to be dismissed and order passed accordingly. In the result, the complaint stands dismissed. No cost. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1., Copy of the policy issued by OP A2.Death certificate A3 & 4.Copy of the lawyer notice and reply Exhibits for the opposite arty B1.Proposal form submitted by complainant B2.Policy B3 4.Copy of discharge summary issued from Kayparal Hospital B5.Copy of case sheet maintained from Tely Medical centre for complainant B6 & 7Copy of discharge summary from Tely medical centre and Telicherry co.op. Hospital B8.Letter sent by Haris. N.K B9.Claimant’s statement B10.Medical attendant’s certificate B11.Certificate of hospital treatment B12.Letter dt.14.12.04issued by OP1 to OP2 B13.Copy of the Letter dt.12.2.05 sent to complainant B14.Copy of the lawyer notice sent by complainant B15.Copy of reply notice sent to complainant B16.Letter dt.30.3.05 sent to complainant B17.Postal AD B18 & 19.Copy of the ration card and ID card Witness examined for the complainant: Nil Witness examined for the opposite parties DW1.A.P.Mohammed DW2.Dr,K.M.Ramakrishnan /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
