BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,ADDITIONAL BENCH, MANGALORE                        

Dated this the 20^th January 2017

PRESENT

  SRI VISHWESHWARA BHAT D       : HON’BLE PRESIDENT

  SRI T.C. RAJASHEKAR                    : HON’BLE MEMBER

  SMT. SHARADAMMA H.G                : HON’BLE MEMBER

ORDER IN

C.C.No.207/2013

(Admitted on 30.07.2013)

Smt. Sukanya Rao.K,

Aged 47 years,

W/o late Ravindra Rao,

Allipade Sarapade House,

Bantwal, D.K.

                                                           ….. COMPLAINANT

(Advocate for the Complainant: PKP)

VERSUS

Deputy Divisional Manager,

Postal Life Insurance,

Karnataka Circle,

2^nd Floor, GPO Building,

Bangalore  560001.

                                                                …...........OPPOSITE PARTY

(Advocate for the Opposite Party: Sri. GKB)

ORDER DELIVERED BY HON’BLE MEMBER

SRI T.C. RAJASHEKAR:

1. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against opposite parties claiming certain reliefs to refund  policy amount with interest and cost of the litigation charges and to pay 1,00,000/- as compensation towards inconvenience and loss.

2.    In support of the above complainants Smt. Sukanya Rao K filed affidavit evidence as CW1 and filed notes of arguments and produced documents got marked as Ex.C1 to C7 as detailed in the annexure.  On behalf of the opposite party not filed any affidavit evidence.

              The brief facts of the case are as under:  

        We perused the complaint and the version of the parties. This dispute is with regard to repudiation of the postal insurance claim by the wife of the deceased employee of the postal department. The complainant alleges that her husband had subscribed for the insurance scheme floated by the postal department where in the deceased insured was an employee. On the death of her husband on 17.07.2011 she contacted and claimed the insurance amount on 01.02.2013 with the opposite party. The opposite party had repudiated the claim on the reason of non -disclosure of pre disease. The complainant submits that her husband was health at the time of the policy issued, the ground of repudiation is baseless and hence there is deficiency in service on the part of the opposite party. The opposite party filed their version and contended on sole ground that the complainant husband was suffering from cancer at the time of the declaration of good health while proposing for the insurance policy and as such the claim is not allowable hence there is no deficiency in service from their part. These are being the facts of dispute we consider following

POINTS FOR ADJUDICATION

     We considered the evidence lead by the complainant and the documents produced by the parties. However the opposite party only filed their version and few documents and not led any evidence or participated in the further proceedings. As per above the admitted facts are the issuing of the insurance policy by the opposite party, the payment of premium regularly, the death of the complainant husband while in service of the opposite party, and the repudiation of the insurance policy on the ground of non disclosure of pre-disease. The denial facts are the complainant denies the pre disease of the deceased insured and non-disclosure while declaration for the insurance policy. On reconciliation the admitted and disputed facts we are of view the following points to be adjudicated.

1. Whether the complainant is Consumer under the Consumer Protection Act 1986?
2. Whether the opposite party proves the repudiation is legal and proper and no deficiency from their part?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?

     We have critically examined and considered the documents and evidence produced and facts of law. We answered the above points as under:

REASON

POINT NO 1: EX-C 1is the insurance policy copy produced by the complainant which shows the issue of the policy in the name of deceased insured Shri RAVINDRA who is the husband of the complainant herein. It is not disputed that Shri RAVINDRA was the consumer.  Deceased insured Shri RAVINDRA Since dead his wife being the legal heir had became the consumer on the application of the law. Hence we answered the point no 1 in the affirmative.

POINT NO 2: It is admitted that the deceased insured has taken the insurance policy in the year 2005 and as per insurance policy EX    C1 the date of proposal and the date of declaration is on 17.03.2005 and the policy came into effect from 28.03.2005. The deceased insured died on 17.07.2011 i.e. after 6 years 4 months which are born by record. As the two years already lapsed, as per sec.45 of the insurance Act of 1938 which reads  Policy not to be called in question on ground of mis statement after two years... unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy holder and that the policy holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose. Undoubtedly the policy passed two years test as per provision. Now it is the burden of the opposite party to show the suppression is material and intentional and fraudulent beyond doubt. Hence we have taken the point no 2 for adjudication.

2.     The opposite party solely rely on the outpatient record issued by the Father Muller Medical college Hospital Mangalore numbered as R4.

A) In page no 6 at the end of the page it is mentioned as undergone surgery and radiotherapy ... left lower CA... in 2005 March.

B)  In pg. 11 it is mentioned as K/C/O DM from past 7 years and is on medication.

C) In the same page it is noted as K/C/O HTN from past 3 years and on medication.

D) Page no 16of  the R4 is the death summery given by the Father Muller Medical college Hospital Mangalore in which it is stated in the past history that K/C/O CA ORAL CAVITY since 6 years... K/C/O DIABETES MELLITUS since 6 years.

E) In R4 page 17 under the course head it is mentioned as “patient is a known case of CA cheek since six years with flap reconstruction and necrosis”

3.     The opposite party highlighted these above mentioned facts and repudiated the claim on the ground of the enquiry showed that the late insurant was suffering from cancer and diabetes mellitus since 6 years. This shows that the late insurant was suffering at the time of taking policy and that he has supressed this fact. This attracts the rule 39 of the POLI rules

4.    On close examination of the facts above and the documents produced, we formed the following opinion keeping the death of the deceased insured took place on 17.07.2011.

5.     In instance A above the treatment taken in March 2005 is contradicted as the other records shows since 6 years which date backs to March 2006 only not till March 2005. Also the declaration made on 17.03.2005 and policy comes into existence on 28.03.2005 still 3 days left in the month of March 2005. There is scope to presume the treatment may be after the 28.03.2005 as the exact date is not mentioned.

6.   In the instance B, C, D, & E all the three are inconsistent each other. Say since 7 years, since 3 years, since 6 years. It is note worth to mention here that the opposite party neither not proceeded with case for clarifying nor examined the author of the documents. Hence not dependable. Also it is observed that even if the disease is since 6 years as it is stated in the death summery dated 17.07.2011 singed by the unit head of the hospital, and as per repudiation letter, the since six years dates back to 17.07.2005 not before. Obviously the policy was taken on 28.03.2005 and the deceased insured did not know the disease at the time of taking policy.  We also observed in the document EX C 6 and EX C 7 which supports our view. There is clear mention about the diagnosis of the disease. The report EX C 7 dated 03.03.2006 and 09.03.2006 is a Histo Pathology report pertaining to the deceased insured a recorded evidence  in which   it is seen the disease alleged as non-disclosed is  diagnosed on 03.03.2006 which shows the deceased insured was not at all diagnosed as cancer patient on the date of the insurance policy on 28.03.2005. The complainant had  also produced   The certificate dated 23.08.2013 (EX c6) signed by the Doctor  Shri Clement D  Souza clearly states that the deceased insured diagnosed to have the above said disease(stage IV carcinoma oral cavity) in March 2006. In our opinion the said certificate is authenticated with the Laboratory report dated EX C7.  However the outpatient record on which the opposite party relies will not outweigh the EX C6 and C7. The outpatient record is not supported by any Laboratory report or corroborative evidence to assess the source of information recorded also the information about the disease since how many years itself confusing.  The result of the this discussion we formed opinion that the opposite party not proved the repudiation is legal and we hold the opposite party is liable for deficiency in service hence the point no 2 in the negative.

POINT NO 3: On holding the opposite party not proved the repudiation of insurance is not proper and legal he is liable for deficiency in service towards the complainant. The complainant is entitled to get an amount of  Rs 1,00,000/ as sum assured with an interest of 10% per annum from the date of repudiation till the date of payment. The complainant had prayed for an amount of  Rs 1,00,000/ as compensation. We observed and noted that the opposite party not applied his mind before repudiation of the policy. They have not appreciated the death summery properly. The  illness since 6 years stated in the death summery clearly shows at the time of policy the deceased insured was not diagnosed as cancer patient as discussed above. Also even after production of EX C6 and C7 in the forum the opposite party not realised their mistake. To our utter surprise the opposite party after filing their version not proceeded further in leading evidence or presenting their case before us. Hence we find there is grave negligence on the part of the opposite parties, the complainant being widow we consider an amount of  Rs 50,000/ as compensation for mental agony and hardship and an amount of Rs 10000/  towards cost in the ends of justice. Hence we answered the point no 3 in the affirmative.

POINT NO 4: In the result of above discussion and the adjudication of above points we deliver the following

ORDER

      The complaint is allowed. The opposite party shall pay the complainant an amount of Rs 1,00,000/ (Rupees One lakh only) with an interest of 10% per annum from the date of repudiation till the date of payment and an amount of Rs 50,000/ (Rupees Fifty thousand only) towards compensation and Rs 10,000/ (Rupees Ten thousand only) as cost within 30 days from the date of the copy of the order received. On failure to comply, the opposite party shall pay an additional interest at 5% per annum from the date of order till the date of payment.

   Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

     (Page No.1 to 10 Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 20th January 2017)

MEMBER

 ( SMT. SHARADAMMA H.G)

         D.K. District Consumer Forum                   

      Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Smt. Sukanya Rao K

Documents marked on behalf of the Complainant:

Ex.C1: Notarized copy of Postal Life Insurance K.T.249908.P

Ex.C2: 01.02.2013: Xerox copy of Notice

Ex.C3: 31.05.2013: Xerox copy of lawyer s notice

Ex.C4: Reply letter by opposite party with postal cover

Ex.C5: Particulars of leave availed by late Shree Ravindra Rao Obtained on 2.8.2013 as per F/RTI/PTR/14/dlgs 12-13

Ex.C6: Certificate issued by Professor Department of General Surgery

Ex.C7: Biopsy report given by Department of pathology Histo Pathology Report Biopsy number 550/06 dated17.03.2006 and 3.3.2006

     Witnesses examined on behalf of the Opposite Party:

 Nil 

Documents marked on behalf of the Opposite Party:

 Nil 

Dated:  20.01.2017                                          MEMBER