Branch Manager,Bajaj Allianz Insurance Co Ltd V/S Austine Varried - Consumer Court Case

Kerala

Wayanad

CC/07/107

Austine Varried - Complainant(s)

Versus

Branch Manager,Bajaj Allianz Insurance Co Ltd - Opp.Party(s)

16 Jul 2008

ORDER

CDRF Wayanad
Civil Station,Kalpetta North
consumer case(CC) No. CC/07/107

Austine Varried						...........Appellant(s)
Vs.
Branch Manager,Bajaj Allianz Insurance Co Ltd						...........Respondent(s)

BEFORE:

1. K GHEEVARGHESE 2. P Raveendran 3. SAJI MATHEW

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

By Sri. K. Gheevarghese, President: The complaint filed under section 12 of the Consumer Protection Act. The gist of the complaint is as follows: The Complainant's son is the holder of Life Insurance Policy certificate No.0009920546 dated 30.7.2005 of the Opposite Party and the Complainant is the nominee as per records. The policy assures an amount of Rs.1,00,000/-. The premium payable half yearly is Rs. 5,000/-. - 2 - The proposal form of the insured was submitted on 28.7.2005 and remitted Rs.5,000/- through the Opposite Party's agent K.K. Sreelakshmi. The 2nd premium was paid vide cheque No.63297 drawn from Manathavady Farmers Service Co-operative Bank Ltd dated 03.02.2006. The insured had been employed in Anna Aluminium Company Brach at Coimbatore named Jack metals in Avinashi road near Thekkallur, Coimbatore from 14.02.2006 onwards. The policy holder came to the home because of high fever and abdominal pain. He was admitted in St. Joseph Hospital, Mananthavady immediately and in the evening on the same day the policy holder was taken to Calicut and admitted in Baby Memorial Hospital, Calicut. On 10.7.2006 the policy holder was expired. In the month of July 2006, the Complainant claimed for the risk covered in the scheme of the Policy for which the original policy certificate, death certificate and other connected documents were given to the Opposite Party in the month of July 2006. A letter sent by the Opposite Party to the Complainant on 04.10.2006 informed the Complainant that the claim is repudiated due to non disclosure of material facts in the proposal form. It is also alleged that the policy holder had Congenital Ocular Myopathy and Recurrent Exertional Dyspnoea for the past two years affected prior to the period of inception to the policy, which was not revealed to the Opposite Party. The Complainant also submitted an application to the Claims Review Committee of the Opposite Party for consideration this too was repudiated. 2. According to the Complainants the policy holder had not contacted any disease earlier to the period of holding policy. The diseased Tolfin Austine was employed in Jack metals. The handling of the heavy metals and equipments was done by the Complainant's son in course of his employment. If the diseased was in contact with the disease he could have not employed risky job, more over in the life time of the policy holder he was not seriously affected of the disease of any cardiac symptoms. The only defect in the life of the diseased is that he could not open his left eye fully and even that too not affected his vision or general health. The diseased had a very good physique. 3. The repudiation of the claim is not supported by any valid grounds. The act of the Opposite Party is a deficiency in service and unfair trade practise. The Opposite Party is liable to compensate the petitioner paying Rs. 1,00,000/- the amount assured by the policy with 18% interest from the due date till payment. The Complainant's are also entitled for Rs.20,000/- towards the compensation for the repudiation of the policy mental agony and sufferings. 4. The cause of action for the Complainant arouse on 28.7.2005 and from the date when submitted the proposal on 30.7.2005 and on 10.7.2006 when the policy holder expired. There may be an order directing the Opposite Party to pay the Complainant Rs. 1,00,000/- the sum assured vide the policy with 18% interest from 10.7.2006 till payment, to pay Rs.20,000/- as compensation for the mental agony and sufferings caused to the Complainant along with cost. 5. The Opposite Party filed version on their appearance. The sum up of the version is as follows. The Opposite Party admitted that the diseased Tolfin Austine was a policy holder and the amount of insurance is Rs. 1,00,000/- . The insured died on 10.7.2006 near about one year from the date of policy holding. The claimant is not a legal heir of the deceased. The complaint filed by the father as the whole claimant cannot be allowed, since the other legal heirs of the deceased are not arrayed as claimants so the claim is bad for non jointer of necessary parties and the complaint is to be dismissed on that ground. 6. The disease was suffering from Congenital Ocular Myopathy and Congenital heart disease of serious nature. It cannot be believed that the assured or his parents and immediate relatives did not know of such serious illness at the time of taking policy. The assertion of the Complainant that the assured would have not engaged in the employment of heavy works if he was affected of any disease cannot be considered. The access to the policy is done upon the good faith and the questionnaire in the proforma is to be answered truly and correctly. The death of the assured in the age of 26 itself is a reason to show gravity of the disease contacted by the assured even prior to the admission to the policy. The treatment availed by the assured from Little Flower Hospital, Angmali and Baby Memorial Hospital, Calicut shows that the insured was in contact with the disease prior to the admission of the policy and it was kept suppressed. The summary of the treatment given to the assured from Baby Memorial Hospital during the period 8.6.2006 to 10.7.2006 as inpatient substantiate the contention of the Opposite Party. If the insured had disclosed the congenital health problem he would have not been accommodated in the policy. The complaint may be dismissed with compensatory cost to the Opposite Party. The Complaint has subsequently impleaded the legal heirs as per order in I.A 152/07. 7. Points in consideration are: 1.Is there any deficiency in service on the part of the Opposite Party? 2.Relief and cost. 8. Point No.1: Complainant No.1 the father of the insured filed affidavit and is examined as PW1 and Ext.A1 to A9 are marked to substantiate the contentions in the complaint. The Branch Manager of the Opposite Party Kalpetta Branch filed affidavit affirming the contention and he is examined as OPW1. Ext.B1 and B2 are marked to the establish the facts raised by the Opposite Party. The case of the Complainant is that the diseased, the son of the 1st Complainant was insured by the Opposite Party for an amount of Rs. 1,00,000/-. The premium of the policy stipulated Rs. 5,000/- half early was paid twice. The insured died while the risk cover of the policy was still in existence. The opposite party repudiated the claim on the ground that the insured suppressed the facts of the disease which was in contact even at the time of inception to the policy. The Opposite Party contented that the necessary parties are not joined. In accordance with the contentions raised by the Opposite Party the legal heirs of the diseased are impleaded in the complaint. It is further contented by the Opposite Party that the insured had contacted congenital illness of heart and ocular mayopathy combined with other illness. Ext.B1 is the case summary of the Baby Memorial Hospital, Calicut. The Doctor who treated the patient at the hospital who is conversant with the facts of treatment is examined as OPW2. In chief examination of the Doctor it is deposed that the external breathlessness is likely to be due to dilated pre-existing Cardio myopathy. Ext. B1 is the case summary dated 08.06.2006 the witness further deposed that he cannot say how long the duration of the cardio myopathy and the patient may not be following the pressure of the disease if the symptoms are mild. It is also further deposed in cross examination that if the symptoms are mild even the referring doctor would have not mentioned that the death is due to the cardio myopathy and its complication. The OPW2 examined the patient only on 08.06.2006. On re-examination the expert witness who treated the patient also stated that a person whose exertional breathless is mild he can go on with his daily work. The opposite party deposed on examination that according to them the policy holder had been affected of Cardiac ailment and ocular myopathy even before inception to the policy. The insured was having the disease prior to the entry in to the policy. It is further admitted by the Opposite Party on examination that they have not conducted an investigation on the preexisting disease of the insured. Ext.B1 is the case summary dated 08.6.2006 received by the Opposite Party from the treated hospital. As per this documents, the insured died of hepato renal due to leptospirosis and dilated cardiomyopathy. The insured had congenital ocular myopathy but it has no nexus with the disease which lead to the death of the insured. On examination of the opposite party it is also deposed that no investigation was conducted by them to bring forth whether the insured had any cardiac ailment priorly. The burden lies on the Opposite Party to bring forth in evidence that the insured suppressed the material facts when he got access to the policy. Ext B1 does not given inferences that the policy holder was aware of such disease when he had taken the policy. The employment of the diseased was heavy and hard work according to the Complainant on examination the Opposite Party further opined that as per Ext.B2 and otherwise they could come to know whether the policy holder had undergone any treatment for hepato renal syndrome or any cardiac treatment. The congenital ocular myopathy had no nexus with the death of injury. It is only a physical deformity by which the policy holder could not open eye fully. The Hon'ble National Commission ruled in New India Assurance Company Ltd V/S Sri. Kazhinath Balmukunth (2008(4) CPR 95) reiterated by the findings of the Hon'ble National Commission earlier in Praveen Dhamani V/S Oriental Insurance Company Ltd. The policy which states that it is not material whether the insured had knowledge of the disease was not and even existence of the symptoms of the disease prior to the effective date of insurance enable to the Insurance Company to disown the liability. If those interpretation up held, the Insurance Company not liable to pay any claim. Whatsoever, any claim, because every person suffer from symptoms of any disease without the knowledge of the same. The most of the people are totally unaware of the disease that they suffer and hence they cannot be liable to suffer because the Insurance Company realise on their clause 4.1 of the policy in malafied to repudiate all the claims. The Opposite Party cannot establish that the diseased had preexisting disease which was suppressed when the policy was taken. From the above inferences the point No.1 is found in favour of the Complainants. 9. Point No.2:- The sum assured on the life of the insured is Rs.1,00,000/-. The death was after remittance of two premiums. The Opposite Party has no contention that the Complainant was a defaulter of the premium and the period in which the insured died not extended extent to the period of coverage. The repudiation of the claim was only due to erroneous conclusion of the Opposite Party that the diseased at the time inception to the insurance scheme suppressed the facts. The Opposite Party is liable to pay the Complainants, the legal heirs of the diseased, the amount assured Rs.1,00,000/- along with cost and compensation. In the result, the complaint is partly allowed. The Opposite Party is directed to give the Complainants Rs. 1,00,000/- (Rupees One Lakh only) along with interest at the rate of 9% from 10.7.2006 till payment to the Complainants. The Complainants are also entitled for the compensation Rs.5,000/- (Rupees Five thousand only) along with cost Rs.1,000/- (Rupees One thousand only). The Opposite Party is directed to give this amount to the Complainant within one month from the date of this order. Pronounced in open Forum on this the 16th day of July 2008. PRESIDENT: Sd/- MEMBER-I : Sd/- MEMBER-II: Sd/- /True Copy/ Sd/- PRESIDENT, CDRF, WAYANAD. APPENDIX Witnesses for Complainant: PW1. Austine Varried Complainant. Witnesses for Opposite Party: OPW1. Padmanabhan Branch Manager, Bajaj Alliance Life Insurance Co. OPW2. Dr. Bhargavan. Doctor, Baby Memorial Hospital, Calicut. Exhibits for Complainant: A1. MRI Report. dt:28.04.97. A2. Discharge Summary. A3.(5 Sheets) Copy of the Treatment Records. dt:8.6.2006. A4. Employer Certificate. A5. Claim rejection letter. dt:13.12.2006. A6.series. Copy of the Lawyer notice, postal receipt and Acknowledgement. A7. True copy of the Certificate. dt:26.12.2006. A8. Medical Attendant's Certificate. A9. Copy of the Letter. Exhibits for Opposite Party: B1. Case summary. B2. Proposal Form for Life Insurance.

By Sri. K. Gheevarghese, President: The complaint filed under section 12 of the Consumer Protection Act. The gist of the complaint is as follows: The Complainant's son is the holder of Life Insurance Policy certificate No.0009920546 dated 30.7.2005 of the Opposite Party and the Complainant is the nominee as per records. The policy assures an amount of Rs.1,00,000/-. The premium payable half yearly is Rs. 5,000/-. - 2 - The proposal form of the insured was submitted on 28.7.2005 and remitted Rs.5,000/- through the Opposite Party's agent K.K. Sreelakshmi. The 2nd premium was paid vide cheque No.63297 drawn from Manathavady Farmers Service Co-operative Bank Ltd dated 03.02.2006. The insured had been employed in Anna Aluminium Company Brach at Coimbatore named Jack metals in Avinashi road near Thekkallur, Coimbatore from 14.02.2006 onwards. The policy holder came to the home because of high fever and abdominal pain. He was admitted in St. Joseph Hospital, Mananthavady immediately and in the evening on the same day the policy holder was taken to Calicut and admitted in Baby Memorial Hospital, Calicut. On 10.7.2006 the policy holder was expired. In the month of July 2006, the Complainant claimed for the risk covered in the scheme of the Policy for which the original policy certificate, death certificate and other connected documents were given to the Opposite Party in the month of July 2006. A letter sent by the Opposite Party to the Complainant on 04.10.2006 informed the Complainant that the claim is repudiated due to non disclosure of material facts in the proposal form. It is also alleged that the policy holder had Congenital Ocular Myopathy and Recurrent Exertional Dyspnoea for the past two years affected prior to the period of inception to the policy, which was not revealed to the Opposite Party. The Complainant also submitted an application to the Claims Review Committee of the Opposite Party for consideration this too was repudiated. 2. According to the Complainants the policy holder had not contacted any disease earlier to the period of holding policy. The diseased Tolfin Austine was employed in Jack metals. The handling of the heavy metals and equipments was done by the Complainant's son in course of his employment. If the diseased was in contact with the disease he could have not employed risky job, more over in the life time of the policy holder he was not seriously affected of the disease of any cardiac symptoms. The only defect in the life of the diseased is that he could not open his left eye fully and even that too not affected his vision or general health. The diseased had a very good physique. 3. The repudiation of the claim is not supported by any valid grounds. The act of the Opposite Party is a deficiency in service and unfair trade practise. The Opposite Party is liable to compensate the petitioner paying Rs. 1,00,000/- the amount assured by the policy with 18% interest from the due date till payment. The Complainant's are also entitled for Rs.20,000/- towards the compensation for the repudiation of the policy mental agony and sufferings. 4. The cause of action for the Complainant arouse on 28.7.2005 and from the date when submitted the proposal on 30.7.2005 and on 10.7.2006 when the policy holder expired. There may be an order directing the Opposite Party to pay the Complainant Rs. 1,00,000/- the sum assured vide the policy with 18% interest from 10.7.2006 till payment, to pay Rs.20,000/- as compensation for the mental agony and sufferings caused to the Complainant along with cost. 5. The Opposite Party filed version on their appearance. The sum up of the version is as follows. The Opposite Party admitted that the diseased Tolfin Austine was a policy holder and the amount of insurance is Rs. 1,00,000/- . The insured died on 10.7.2006 near about one year from the date of policy holding. The claimant is not a legal heir of the deceased. The complaint filed by the father as the whole claimant cannot be allowed, since the other legal heirs of the deceased are not arrayed as claimants so the claim is bad for non jointer of necessary parties and the complaint is to be dismissed on that ground. 6. The disease was suffering from Congenital Ocular Myopathy and Congenital heart disease of serious nature. It cannot be believed that the assured or his parents and immediate relatives did not know of such serious illness at the time of taking policy. The assertion of the Complainant that the assured would have not engaged in the employment of heavy works if he was affected of any disease cannot be considered. The access to the policy is done upon the good faith and the questionnaire in the proforma is to be answered truly and correctly. The death of the assured in the age of 26 itself is a reason to show gravity of the disease contacted by the assured even prior to the admission to the policy. The treatment availed by the assured from Little Flower Hospital, Angmali and Baby Memorial Hospital, Calicut shows that the insured was in contact with the disease prior to the admission of the policy and it was kept suppressed. The summary of the treatment given to the assured from Baby Memorial Hospital during the period 8.6.2006 to 10.7.2006 as inpatient substantiate the contention of the Opposite Party. If the insured had disclosed the congenital health problem he would have not been accommodated in the policy. The complaint may be dismissed with compensatory cost to the Opposite Party. The Complaint has subsequently impleaded the legal heirs as per order in I.A 152/07. 7. Points in consideration are: 1.Is there any deficiency in service on the part of the Opposite Party? 2.Relief and cost. 8. Point No.1: Complainant No.1 the father of the insured filed affidavit and is examined as PW1 and Ext.A1 to A9 are marked to substantiate the contentions in the complaint. The Branch Manager of the Opposite Party Kalpetta Branch filed affidavit affirming the contention and he is examined as OPW1. Ext.B1 and B2 are marked to the establish the facts raised by the Opposite Party. The case of the Complainant is that the diseased, the son of the 1st Complainant was insured by the Opposite Party for an amount of Rs. 1,00,000/-. The premium of the policy stipulated Rs. 5,000/- half early was paid twice. The insured died while the risk cover of the policy was still in existence. The opposite party repudiated the claim on the ground that the insured suppressed the facts of the disease which was in contact even at the time of inception to the policy. The Opposite Party contented that the necessary parties are not joined. In accordance with the contentions raised by the Opposite Party the legal heirs of the diseased are impleaded in the complaint. It is further contented by the Opposite Party that the insured had contacted congenital illness of heart and ocular mayopathy combined with other illness. Ext.B1 is the case summary of the Baby Memorial Hospital, Calicut. The Doctor who treated the patient at the hospital who is conversant with the facts of treatment is examined as OPW2. In chief examination of the Doctor it is deposed that the external breathlessness is likely to be due to dilated pre-existing Cardio myopathy. Ext. B1 is the case summary dated 08.06.2006 the witness further deposed that he cannot say how long the duration of the cardio myopathy and the patient may not be following the pressure of the disease if the symptoms are mild. It is also further deposed in cross examination that if the symptoms are mild even the referring doctor would have not mentioned that the death is due to the cardio myopathy and its complication. The OPW2 examined the patient only on 08.06.2006. On re-examination the expert witness who treated the patient also stated that a person whose exertional breathless is mild he can go on with his daily work. The opposite party deposed on examination that according to them the policy holder had been affected of Cardiac ailment and ocular myopathy even before inception to the policy. The insured was having the disease prior to the entry in to the policy. It is further admitted by the Opposite Party on examination that they have not conducted an investigation on the preexisting disease of the insured. Ext.B1 is the case summary dated 08.6.2006 received by the Opposite Party from the treated hospital. As per this documents, the insured died of hepato renal due to leptospirosis and dilated cardiomyopathy. The insured had congenital ocular myopathy but it has no nexus with the disease which lead to the death of the insured. On examination of the opposite party it is also deposed that no investigation was conducted by them to bring forth whether the insured had any cardiac ailment priorly. The burden lies on the Opposite Party to bring forth in evidence that the insured suppressed the material facts when he got access to the policy. Ext B1 does not given inferences that the policy holder was aware of such disease when he had taken the policy. The employment of the diseased was heavy and hard work according to the Complainant on examination the Opposite Party further opined that as per Ext.B2 and otherwise they could come to know whether the policy holder had undergone any treatment for hepato renal syndrome or any cardiac treatment. The congenital ocular myopathy had no nexus with the death of injury. It is only a physical deformity by which the policy holder could not open eye fully. The Hon'ble National Commission ruled in New India Assurance Company Ltd V/S Sri. Kazhinath Balmukunth (2008(4) CPR 95) reiterated by the findings of the Hon'ble National Commission earlier in Praveen Dhamani V/S Oriental Insurance Company Ltd. The policy which states that it is not material whether the insured had knowledge of the disease was not and even existence of the symptoms of the disease prior to the effective date of insurance enable to the Insurance Company to disown the liability. If those interpretation up held, the Insurance Company not liable to pay any claim. Whatsoever, any claim, because every person suffer from symptoms of any disease without the knowledge of the same. The most of the people are totally unaware of the disease that they suffer and hence they cannot be liable to suffer because the Insurance Company realise on their clause 4.1 of the policy in malafied to repudiate all the claims. The Opposite Party cannot establish that the diseased had preexisting disease which was suppressed when the policy was taken. From the above inferences the point No.1 is found in favour of the Complainants. 9. Point No.2:- The sum assured on the life of the insured is Rs.1,00,000/-. The death was after remittance of two premiums. The Opposite Party has no contention that the Complainant was a defaulter of the premium and the period in which the insured died not extended extent to the period of coverage. The repudiation of the claim was only due to erroneous conclusion of the Opposite Party that the diseased at the time inception to the insurance scheme suppressed the facts. The Opposite Party is liable to pay the Complainants, the legal heirs of the diseased, the amount assured Rs.1,00,000/- along with cost and compensation. In the result, the complaint is partly allowed. The Opposite Party is directed to give the Complainants Rs. 1,00,000/- (Rupees One Lakh only) along with interest at the rate of 9% from 10.7.2006 till payment to the Complainants. The Complainants are also entitled for the compensation Rs.5,000/- (Rupees Five thousand only) along with cost Rs.1,000/- (Rupees One thousand only). The Opposite Party is directed to give this amount to the Complainant within one month from the date of this order. Pronounced in open Forum on this the 16th day of July 2008. PRESIDENT: Sd/- MEMBER-I : Sd/- MEMBER-II: Sd/- /True Copy/ Sd/- PRESIDENT, CDRF, WAYANAD. APPENDIX Witnesses for Complainant: PW1. Austine Varried Complainant. Witnesses for Opposite Party: OPW1. Padmanabhan Branch Manager, Bajaj Alliance Life Insurance Co. OPW2. Dr. Bhargavan. Doctor, Baby Memorial Hospital, Calicut. Exhibits for Complainant: A1. MRI Report. dt:28.04.97. A2. Discharge Summary. A3.(5 Sheets) Copy of the Treatment Records. dt:8.6.2006. A4. Employer Certificate. A5. Claim rejection letter. dt:13.12.2006. A6.series. Copy of the Lawyer notice, postal receipt and Acknowledgement. A7. True copy of the Certificate. dt:26.12.2006. A8. Medical Attendant's Certificate. A9. Copy of the Letter. Exhibits for Opposite Party: B1. Case summary. B2. Proposal Form for Life Insurance.

......................K GHEEVARGHESE
......................P Raveendran
......................SAJI MATHEW