Before the District Forum :Kurnool
Present: Sri K.V.H.Prasad, B.A., LL.B., President
And
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B.Com., LL.B., Member
Thursday the 7th day of April, 2005
C.D.No.111/2004
V.B. Venkataiah,
Kolimigundla (V),
Kurnool Dist. . . . Complainant represented by his
counsel Sri M.Sivaji Rao,
-Vs-
1. Branch Manager,
LIC of India,
Banaganapalli.
2.The Divisional Manager,
LIC of India,
Divisional Office,
Cuddapah. . . Opposite parties No.1&2
represented by their counsel
Sri L. Hariharanatha Reddy.
O R D E R
(As per Smt C.Preethi, Member)
1. This CD complaint of complainant is filed under section 11&12 of C.P. Act, 1986, seeking a direction on the opposite parties to pay to the complainant the insured amount of Rs.85,000/- with profits on policy bearing no. 652556081 with 24% interest per annum, Rs. 15,000/- towards compensation, cost of the complaint and any such other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the complainant’s case is that the complainant is poor and illiterate husband of deceased policy holder B.Laxmi Devi, who insured her life with opposite party No.1 on 28.8.2000 and 28.11.2001 under two policies bearing No.s 652547298 for Rs. 40,000/- and 652556081 for Rs. 85,000/-. On 15.5.2002 at about 5.00 A.M the deceased who was sleeping under the portico “Varapaku” of her house suddenly the bamboos supporting the portico broken and fell on the deceased, which resulted in death of the deceased on the same day due to grievous injuries of broken ribbs before reaching the Hospital. Thereafter, the complainant gave a complaint to Kolimigundla Police and case was registered under section 174 of Cr.P.C, under Cr. No. 30/2002 and post mortem was conducted by Medical Officer of Banaganapali, who gave report stating that death is due to Hemorrage and shock due to internal Hemorrage. As the nominee under the above said two policies, the complainant put forth a claim for policy amounts before the opposite party No.1 The opposite party No.1 obtained a number of signatures on various documents saying that policy amount will be paid. The complainant being an illiterate signed all the documents without asking any thing with a hope of settlement of both the claims. The opposite party No.1 accepted the first policy bearing No. 652547298 dt 4.8.2000 for Rs. 40,000/- and repudiated the second policy bearing No. 652556081on 30.11.2002. Therefore, the complainant made a representation dt 9.12.2002 to reconsider the repudiation. At last on 30.6.2004, the complainant got issued lawyers notice demanding to settle the claim for policy bearing No. 652547298 and opposite party No.2 gave reply with false reasons. Hence, the said repudiation by opposite parties constrained the complainant to seek redressal in this Forum.
3. In substantiation of her case the complainant relied on the following documents Viz (1) FIR NO. 3/2002 dt 15.5.2002 of Kolimiguntla, Police Station (2) attested Xerox copy of inquest report dt 15.5.2002 (3) Post Mortem report dt 15.5.2002 (4) Final Report dt 24.8.2002 (5) office copy of lawyers notice of complainant’s counsel to opposite party 1 and 2 dt 30.6.2004 and (6) repudiation letter dt 21.7.2004, besides to the sworn affidavit of complainant in reiteration of his complaint averments and the above documents are marked as Ex A.1 to A.6 for its appreciation in this case. The complainant also relied on the third party affidavit of R.Rama Krishna, the complainant and the third party suitablely replied to the interrogatories caused by the opposite parties and the complainant caused interrogatories to the opposite party No.2
4. In pursuance to the notice of this Forum as to their case of the complainant the opposite parties appeared through their standing counsel and contested the case by filling written version of opposite party No.2 and opposite party No.1 adopting the written version of opposite party No.1
5. The written version of opposite parties questions the maintainability of complainant’s case either in law or on facts, it admits the deceased B.Laxmi Devi insured her life under the above said two policies for Rs. 40,000/- and Rs. 85,000/-. On the demise of said B.Laxmi Devi on 15.5.2002 at 5 A.M, due to sudden fall of Varapaku, the complainant putforth a claim for insured amount. As the death aroused within 2 years of taking policies investigation was conducted. Which revealed that the deceased was suffering from advanced stage of cancer prior to taking of policy bearing No. 652556081 and only six months was guaranteed by the doctor and the deceased suppressed the above facts of her ill health and has taken the above said policies. When the above facts were brought before the notice of the complainant, he voluntarily admitted and submitted a disclaimer on 8.10.2002 stating that there was suppression of material facts about the health of deceased and also agreed for relinquishment his claim under the policy bearing No. 65256081, the said disclaimer/ relinquishment letter is duly attested by the Notary. Basing on the confession statement the opposite parties repudiated the claim of the complainant under the policy bearing No. 652556081 and admitted the claim of the complainant under policy bearing No. 652547298 for Rs. 40,000/-. It lastly submits that the deceased died due to cancer only and the complainant created the story of collapsed bamboo sticks for the purpose of making a false claim. The opposite parties replied to the lawyers notice of the complainant dt 30.6.2004 on 21.7.2004 stating the above mentioned reasons for repudiation. Hence, there is no deficiency of service on party of opposite party and seeks for the dismissal of complaint with costs.
6. In substantiation of its the opposite parties relied on the following documents Viz (1) Disclaimer/ Relinquishing claim form dt 8.10.2002 (2) proposal form of complainant’s wife (3) policy bearing No. 652556081 of complainant’s wife (4) repudiation letter dt 21.7.2004 of opposite party No.1 to the complainant and (5) letter dt 30.11.2002 of opposite party No.1 to the complainant, besides to sworn affidavit of opposite party No.2 in reiteration of his written version as defence and the above documents are marked as Ex B.1 to B.5 for its appreciation in this case. The opposite party No.2 suitablely replied to the interrogatories caused by the complainant and caused interrogatories to the complainant.
7. Hence, the point for consideration is to what relief the complainant is remaining entitled alleging deficiency of service deficient conduct on part of opposite parties:-
8. The replies of both the parties to the interrogatories being not in a form of the sworn affidavit as contemplated under Order XI Rule 8&9 of C.P.C and Appendix –C, Form No.3, they are not remaining worthy of consideration.
9. It may be stated at the outset that the dispute involved in this case centers round the claim of the complainant for insured amount of Rs. 85,000/- and the dispute of the same is raised by the opposite party by simply putting the complainant to strictly prove the material allegations of the complaint averments. The material facts that emerge from the averments, the contents of documents are that the complainant is the nominee of the deceased B.Laxmi Devi, who insured with opposite party under the above said two policies. The deceased B. Laxmi Devi died on 15.5.2001 due to fall of portico on her, resulting in grievous injuries and thereafter succumbed to death on the same day. The complainant informed the death of deceased to the opposite parties and the opposite parties paid insured amount of first policy and repudiated the second policy vide Ex A.5/B.4. The Ex A.5/B.4 is the letter addressed by the opposite party to the complainant’s counsel. It dates to 21.7.2004. It repudiated the claim made by the complainant for the second policy bearing No. 652556081 on the reason that the complainant submitted a DISCLAIMER dt 8.10.2002 duly affirming that the life assured Smt. V.B Laxmi Devi was suffering from advanced stage of cancer at the time of proposal and he disclaimed the benefits under the above said policy vide Ex B.1. The Ex B.1 is the Disclaimer/ Relinquishing claim form dt 8.10.2002, on which the opposite party relies alleging the complainant has relinquished the claim by executing it on 8.10.2002, the proforma in which Ex B.1 was prepared from its columns requires to be taken in the presence of Magistrate, Notary of an officer empowered to administrator oath. The said relinquishing form in Ex B.1 alleged to have been signed by the complainant on 8.10.2002 is wanting the said signature of Magistrate/ Notary, who is empowered to administer oath, unless the said signature is there, the contents of Ex B.1 cannot be taken as given on oath by the complainant, who was said to have signed the Ex B.1 on 8.10.2002. Further, from the contents of Ex B.1 it appears to be an obligatory one, as to a certificate to the extent that the contents of said declaration were explained by its certifying officer in vernacular to the person, who has given the said declaratory statement. As the said column is blank the Ex B.1 statement is remaining devoid of merit on that aspect also. The said endorsement certificate as to the explanations of its contents in its declaration as per contents of Ex B.1 are required to be completed by the same officer who affixes the signature of the declarant. The said Ex B.1 is not satisfying any of the said requirement as the signature of T.Madhava Reddy, who was said to be an Advocate Notary find in the Ex B.1, merely a signature attesting and not speaking what he has attested. Hence the said Ex B.1 bears no binding force for being acted upon by the Insurance Company, especially when the said declaration was denied by the complainant and no other material is placed by the Insurance Company to substantiate alleged cancer of the policy holder. Therefore, when Ex B.1 is not carrying any force the repudiation of the Insurance Company being on said Ex B.1 remains not justifiable.
10. The other allegation of opposite parties is that the deceased B.Laxmi Devi suppressed material information regarding her health, it has been found during the investigation, that the deceased was informed, ten days prior to the date of proposal that her life has been assured by the Doctor only for six months, because of advanced stage of cancer. In support of the supra stated contentions, the opposite parties did not place any cogent, relevant, supporting material substantiating their contention. There is no doubt that the burden heavily lies on the opposite party to establish that the deceased suppressed material facts of her health. In the absence of any cogent supporting material in support of supra stated contentions the, contentions of the opposite parties stands with out any proof and basis. Therefore, the opposite parties failed to discharge the burden of proving the actual suppression of material facts by the deceased B.Laxmi Devi at the time of taking the said Insurance Policy.
11. Hence, in the circumstances discussed above the burden is upon the opposite parties to show that there is suppression of material facts and the opposite parties miserably failed to prove that there was really any suppression and when there is no suppression there is no necessity for the complainant to submitted disclaimer/ relinquishing form to the opposite parties, disclaiming his entitleness to the policy amount. Hence, the opposite parties cannot rely on the said Ex A.1 to discharge its liability. The Ex A.1 FIR dt 15.5.2003 Ex A.2, inquest report dt 15.5.2001, Ex A.3 Post mortem report dt 15.5.2002 and Ex A.4 final report, all the above exhibits in unitone indicates that the deceased B.Laxmi Devi’s death is due to Hemorrhage and shock due to internal hemorrhage, and it was opined by the doctor in Ex A.3 that the injuries to the deceased might have been caused by fall of heavy object like stick or stone over the chest. Therefore what follows is that there was no suppression of material information by the deceased and hence, the repudiation by the opposite parties is arbitrary, untenable and unreasonable.
12. Having regard to over all consideration there is no hesitation to hold opposite parties have miserablely failed to substantiate that deceased suppressed material facts about his health condition before taking the policy and that complainant submitted disclaimer knowing fully aware of the consequences arising there of signed the disclaimer. Therefore, in the said circumstances the repudiation of claim by opposite parties is wholly arbitrary and unjust and amounts to deficiency of service on their part and the complainant is remaining entitled to the insured amount.
13. In the result, the complaint is allowed directing the opposite parties to pay assured amount of Rs. 85,000/- to the complainant with 12% interest per annum from the date of demise of deceased till realization along with Rs. 5,000/- as costs within a month of receipt of this order.
Dictated to the Stenographer, Typed to the dictation corrected by us, pronounced in the Open Court this the 7th day of April, 2005.
Sd/-
PRESIDENT
Sd/- Sd/-
MEMBER MEMBER
