BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 10/12.
THIS THE 25th DAY OF MAY 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Sridevi W/o. Nagaraj.B. aged about 35 years,
Occ: House wife, # R/o. 12-9-87/2, Near Suddi Moola Press, Siyatalab, Raichur
//VERSUS//
OPPOSITE PARTIES :- 1. Branch Manager, Reliance Life Insurance
Company Ltd., Branch Raichur, No-11-2-40/41 Ground floor, M.G. Road, Near Gandhi Chowk, Raichur.
2. The Asst. General Manager, Reliance Life Insurance Company Ltd., A H, Block, 1st floor, Dhirubai Ambani knowledge city, Navi Mumbai, Maharastra- 400 710.
CLAIM :- For to direct the opposite to pay an amount of
Rs. 2,00,000/- towards policy amount along with death benefit and interest thereon at the rate of 12% p.a. and Rs. 50,000/- as a damage towards mental harassment and Rs. 10,000/- in respect of cost of the proceedings.
Date of institution :- 27-01-12.
Notice served :- 13-02-12.
Date of disposal :- 25-05-12.
Complainant represented by Sri. S.K. Joshi, Advocate.
Opposite represented by Sri. Virupaxigouda, Advocate.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Gururaj, Member:-
This is a complaint filed by one complainant Sridevi W/o. Nagaraj.B. against Opposite the Branch Manager, Reliance Life Insurance Company Raichur, U/sec. 12 of Consumer Protection Act, for to direct the opposite to pay an amount of Rs. 2,00,000/- towards policy amount along with death benefit and interest thereon at the rate of 12% p.a. and Rs. 50,000/- as a damage towards mental harassment and Rs. 10,000/- in respect of cost of the proceedings.
2. The brief facts of the complainant’s case are that, the complainant is the legal wedded wife and nominee of late Nagaraj.B. S/o. Venkanna who has insured his life insurance highest NAV advantage plan (single) policy in Respondents under policy No. 18220009 for an assured sum of Rs. 2,00,000/- dt. 26-11-2010 through Respondent No-1 (agent/consultant code No. 21137020) by agreeing to pay single premium of Rs. 50,000/- for a term of 15 years and which will be matured on 26-11-2005 accordingly the Respondent No-2 had issued policy schedule dt. 26-11-2010 along with first premium receipt policy schedule etc., after admitting the proposal of late Nagaraj.B.. At the time of obtaining the policy the said Nagaraj was hail and healthy. The policy holder late Nagaraj.B. hospitalized on the complaint of chills and fever in the second week of May-2010 therefore he was hospitalized on 15-05-2011 at Basaveshwara Teaching Hospital, Gulbarga for the treatment however he died on the same day, inspite of best treatment for jaundice and malaria which was diagnosed by doctor in the said hospital. The same intimation was provided to Respondents.
Further it is the case of the complainant that, after the death of the policyholder, the complainant being the nominee of said policy has submitted the claim Form No- AB&C and all the details sought by the Respondents. But Respondent No-2 instead of settling the claim repudiated the claim through letter dt. 31-08-2011 on the ground that, the life assured had allegedly suppressed his kidney decease and the same was not disclosed at the time of admitted the proposal which is not sustainable under law because Respondent after satisfying the particulars and documents submitted and after due enquiry through their agent only they have issued the policy. Therefore Respondent No-2 cannot turn down the claim of complainant on flimsy grounds. The Repudiation of the claim of complainant is in routine fashion without any substance. They have got every chances to confirm the health of the deceased policyholder through their penal doctor at the time of accepting the policy from deceased policyholder which was not done by Respondent at the time of accepting and issuance of policy therefore they very back of repudiating the claim is nothing but deficiency in service, negligence and unfair trade practice.
Further it is the case of the complainant that, the complainant husband i.e, deceased policyholder has not suppressed any ailments of his health. After satisfying the particulars and documents submitted by the husband of the complainant, Respondent No-2 issued the policy schedule therefore the repudiation of claim of complainant is unlawful and without any base which cannot be sustained in law and even the amount of Rs. 46,827/- paid to the complainant is very meager one. The Respondent is bound to pay the policy amount and benefits to the nominee. The non payment of the policy amount and benefits to the nominee and making payment only to the tune of Rs 46,827/- on the single premium amount of Rs. 50,000/- shows the act, is nothing but deficiency in service, negligence and unfair trade practice. Therefore, he has sought for the relief as prayed in the complaint.
3. Opposite Insurance Company appeared in this case through its Advocate, filed written version by contending that, the life insurance contract is a contract of “UTMOST GOOD FAITH’ where in the proponent is duty bond to disclose everything concerning his/her health, habits and other related matters which are within his/her knowledge at the time of making the proposal failing which the insurer has every right to repudiate the claim. In the instant case, the deceased life assured Nagaraj.B. committed a breach of principle of “Uberrimae fidei” i.e, UTMOST GOOD FAITH by suppressing the material fact that, he was suffering from kidney decease and hospitalized for the same and did not suffered from any chills and fever, but the same was intentionally and maliciously concealed by him, at the time of accepting the policy. At the time of taking the policy he was provided false information to the opposite regarding the decease which caused the death of the insured. The opposite issued the policy on the basis information provided by the insured. The deceased deliberately suppressed this material fact and obtained the insurance. The failure of the insured to reveal a matter fact to the insurer is fatal to the contract of insurance which is based on the principles of UTMOST GOOD FAITH. Thus any contract of insurance procured by breach of the principle is nullity and void abinitio. Further it is contended that, if the insurer comes to know about the suppression of material facts subsequently it has got every rights to repudiate the claim under any insurance cover so granted on the basis of doctrine of UTMOST GOOD FAITH. The present complaint has not filed for real cause of justice, but has been filed with malafide intention to harass the Respondent.
The deceased Nagaraj.B. husband of the complainant himself after reading and understanding the terms and conditions of the insurance policy, voluntarily signed the proposal form without any inducement on the part of the Respondent had taken policy in his name and therefore the complainant is bound with its terms and condition of the proposal form between the insured and the opposite party, in the application form for to get the policy question number 29 & 39 had been replied in the negative. This itself shows that, the deceased life assured had concealed and suppressed the material facts at the time of taking the insurance policy, thereby, he committed a fraud with an intention to obtain the insurance cover by suppressing the history of pre-existing decease, which was very well with in his knowledge. Under such circumstances, the life assured should inform clearly about the decease, if they are suffering and about their hospitalization and operations if any, if they failed to disclose it is nothing but a suppression of material facts, that was happened in the present case. Hence the claim of the complainant was rejected. Hence there is no deficiency in service on the part of the Respondent. The complaint is not entitled to any relief and relief’s prayed for in the complaint as they are unjust illegal and unfair. hence, sought for dismissal of the complaint with exemplary cost.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, there is a deficiency in service on the part of the opposite, as alleged.?
2. Whether the complainant is entitled for the relief’s as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In affirmative.
(2) In affirmative.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 & 2:-
6. In order to prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. Documents Ex.P-1 to Ex.P-12 are marked. On the other hand, affidavit-evidence of one Sri. Srihari Territory Manager of Opposite Reliance Life Insurance Company Ltd., Authorized representative of the opposite Insurance Company was filed, he was noted as RW.-1. Three Documents as Ex.R-1 to Ex.R-3 are marked. Heard the arguments on both sides and perused the records.
7. Admittedly the husband of the complainant has got Reliance Life Insurance highest NAV advantage plan (single) policy bearing No. 18220009 for a sum of Rs. 2,00,000/- on the single premium of Rs. 50,000/- p.a. on 26-11-2010 and the complainant is the nominee for the said policy. Further it is admitted that, the policyholder by name Nagaraj.B. husband of the complainant died on 15-05-2011, after his death the complainant has moved claim petition before the opposite and same was repudiated through letter dt. 31-08-2011 by Respondent N0-2.
8. We have gone through the pleadings of the parties and documents filed by both the parties. It is the case of the complainant that, after the death of her husband by name Nagaraj.B. i.e, life assured moved for the death claim under the policy bearing No. 18220009 for a sum of Rs. 2,00,000/- on the single premium of Rs. 50,000/- p.a. on 26-11-2010. But same was repudiated by the opposite No-2 on the ground that, the suppression of material facts, which is illegal on the contrary to the terms and conditions of the policy. On the other hand, it is the case of the opposite that, the life assured late Nagaraj.B. was suffering from kidney decease at the time of taking policy and he has suppressed the same at the time of obtaining the policy on 26-11-2010 and thereby he has violated the policy terms and conditions hence the claim has been repudiated. The opposite in support of their case, they have mainly relied upon the documents filed under Ex.R-1 i.e, proposal form and Ex.R-3 Medical history papers.
9. On close perusal of the Ex.R-1, the late Nagaraj.B. life assured was offered the insurance through Respondents and signed the proposal form. Further the said document is also reveals about his answer to the life style questions and personal medical history. Particularly for the question Nos. 29 & 31 posed to the deceased was answered “in negative” as contended by the opposite in his written version. No doubt the said proposal form has been filled and submitted on 26-11-2010, whereas the Ex.R-3 admission record of Basaveshwar Teaching & General Hospital discloses that, the deceased was admitted on the complaint of celeberal malaria.
10. It is worthwhile to note here that, the Ex.P-3 the laboratory investigation report filed by the complainant reveals that, the deceased Nagaraj.B. was tested his blood in the said Basaveshwar Teaching & General Hospital and the report has been given that, he was suffering from celeberal malaria and left side kidney problem. Further it is also discloses that, the patient was in coma. The doctors of the said hospital have made the patient physical examination and reported that, the skin of the deceased was yellow type. Further the said report reveals that, the patient was in coma and not responding to the treatment apart from that, there is no any reason to show that, for what reason the death was caused. Apart from this no other documents are made available before this forum to show that, the deceased was suffering from kidney decease or any other deceases as contended by the opposite. In the said report it is clearly mentioned that, the patient was suffering from celebral malaria and chill when he was admitted to the hospital and later on, the doctor has diagnosed about the problem of left side kidney. But here the cause of death is silent, under such circumstances it cannot be concluded or finalized that, the deceased was died only for kidney problems. In order to come to the conclusion that, about the cause of the death, the doctor’s report in this regard is must and necessary, in absence of that, we cannot say that, the deceased was died only due to failure of kidney or for kidney deceases as contended by the opposite. When the opposite are so firm about the suppression of material facts regarding failure of kidney or kidney decease nothing is prevented them to produce any affidavit-evidence of doctor one who has treated the decease. No such affidavit-evidence has been made available before this forum to show that, what was the exact cause for his death. Under such circumstances, the say of the opposite cannot be believed.
The complainant in order to prove his case he has relied on five rulings cited in: (1) I (2009) CPJ 161 NC, (2) II (2005) CPJ 9 (NC), (3) III (1998) CPJ 475, (4) 1986-2005 Consumer 9160 (NS).
After going through the dictums laid down under the said rulings it is very clear that, burden to prove false representation and suppression of material fact is on insurer doctor certificate without his affidavit-evidence opposite cannot make base for repudiating the claim. Further, the said rulings clearly suggested that, without the said affidavit of the doctor or the person one who has given report, the said report is not a conclusive evidence to suggest suppression of material fact on the part of decease. In the present case, the opposite insurance company has not produced or led any evidence of the doctor of Basaveshwar Teaching & General Hospital to accept medical report/case sheet produced by the opposite. Under such circumstances, the dictums laid down under the above cited rulings are definitely go in favour of the complainant’s case. Hence principles of the said rulings have been accepted in support of the complainant case, as they are amply applicable to the case of the present case on hand.
In support of our view, we have also referred the ruling cited in CPR 2011 (3) NC wherein the Hon’ble National Commission while deciding the case of LIC V/s. Ashok Manocha case clearly held that, production of document is different from proof of the same. Certificate produced from the hospital is of no help because petitioner took no steps to prove the same. This is also amply applicable to the present case on hand.
11. The opposite in the case have admitted about the policy and payment of the premium on the condition that, to secure the life of deceased in the event of his death but without any reason and without any proper document to show that, the deceased has suffering from kidney problems earlier to obtaining the policy and repudiated the claim on the ground that, he has suppressed the pre-existing decease is improper the repudiation letter dt. 31-08-2011 produced under Ex.P-11 is not a favourable document to the opposite. Further the said Ex.P-11 discloses that, answers for the question Nos- 29 & 31 no doubt the deceased was answered these two questions in negative and on the said negative answer the opposite might be come to the conclusion that, he has suffered from pre-existing decease on the strength of the medical report/case sheet produced under Ex.R-3. Of course, the said facts are to be proved by proper evidence by way of doctors affidavit or his evidence as stated supra. Under such circumstances the version of the opposite cannot be accepted as there is no proper evidence as observed in the above said rulings by the Hon’ble National Commission. Hence, we have come to the conclusion that, the opposite have failed to prove their case, hence we have answered Point No-1 affirmative.
12. The complainant in his complaint has claimed the policy amount of Rs. 2,00,000/- and also interest at the rate of 12% p.a. Rs. 50,000/- as mental shock and deficiency in service. In view of our conclusion and findings on above points 1 & 2, the complainant is entitled for policy amount of Rs. 2,00,000/- with interest at the rate of 9% p.a. from the date of complaint till realization of the full amount. But the complainant has received an amount of Rs. 46,827/- from the opposite the same has been admitted by her in Para-6, hence now she is entitled to receive only an amount of (Rs. 2,00000-46,827) Rs. 1,53,173/- As regards to mental shock and deficiency in services and cost of this litigation are concerned the claim of the complainant is heavy and excessive hence we granted lumpsum amount of Rs. 5,000/- including cost of the litigation and deficiency in service.
POINT NO.3:-
13. In view of our findings on Point Nos. 1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant is allowed in part.
The complainant is entitled to recover. (Rs 2,00000-46,827) Rs. 1,53,173/-towards policy amount. The complainant is also entitled to recover Rs. 5,000/- towards deficiency in service and cost. The complainant is entitled interest at the rate of 9% p.a. from the date of complaint till realization of the full amount on Rs. 1,58,173/-.
The opposites are directed to pay the above said awarded amount with interest within six weeks from the date of receipt of this order.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 25-05-12)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur.
