IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE 31^stDAY OF MARCH 2021

Present: -    Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

                    Smt.S.Sandhya   Rani. Bsc, LLB ,Member

                   Sri.Stanly Harold, B.A.LLB, Member

CC.No.44/2017

1. Rajasree, W/o Devarajan B., aged

          Mayavilasm, Vettikkavala P.O.,

          Kottarakkara, Kollam.

          (By Adv.V.JyothiSagar)

      2.    Anamika, (26) D/o Devarajan,

            Mayavilasm, Vettikkavala P.O.,

            Kottarakkara, Kollam.

           (By Adv.V.JyothiSagar)

3.  UnniDevarajan, (21), S/o Devarajan,

          Mayavilasm, Vettikkavala P.O.,

          Kottarakkara, Kollam.

           (By Adv.V.JyothiSagar)

4.  Amritha (15), D/o Devarajan,

         Mayavilasm, Vettikkavala P.O.,

         Kottarakkara, Kollam.

         Rep.by mother Rajasree

          (By Adv.V.JyothiSagar)                   `                                               :           Complainants

                                                   V/S

       Divisional Manager,

       Bajaj Allianz,

     Life Insurance com.Ltd.,

      1^st Floor, Palakottu Complex,

     Pulamon Jn., TVM Road,

     Kottarakkara.                                                                                   :           Opposite party

      (By Adv.P.Deepa)

ORDER

Smt.Sandhya Rani, B.SC, LLB, Member

This is a case based on a consumer complaint filed under section 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows.

          The complainants are legal heirs and successors of the deceased Devarajan,who had joined in Bajaj Alliance New Unit gain policy by policy No.0026543612 issued by the respondent on 23.12.2016 for a sum of Rs.10 lakhs.  By complying the terms of the policy he has  withdrawn the funds in 2014due to his financial stringency after completion of 5 years.   Again he has joined in another policy named Bajaj Alliance  Isecure policy as per policy No.0316018901 on 14.06.2014.  The period of policy was 15 years and the sum assured was Rs.2,50,000/- and annual premium was at the rate of Rs.2,891/-.  But on 9^th July 2014 he was admitted in Travancore Medical College Hospital, Kollam due to abdominal pain and loss of appetite and discharged on 15.07.2014.  Again he was admitted there due to shrunken liver with mild splenomegaly and discharged on 17.11.2014. Thereafter he was admitted in the same hospital several times on 23.02.2015 till 28.02.2015 on 17.07.2015 till 23.07.2015, on 10.08.2015 to 25.08.2015and on 28.08.2015 till his death on 06.09.2015 and the hospital expenses incurred in those period were more than 2,50,000/-.  Thereafter the 1^stcomplainant  sent a claim before the respondent on 09.01.2016 as a nominee of the deceased policy holder and received a reply on 01.07.2016 stating that the said claim is processing and payment will be effected through the account of the 1^st complainant maintained with Indian Overseas Bank.  But evenafter 2 months no amount has been credited to the account of the 1^st complainant hence she has sent a reminder through her counsel on 25.08.2016.  Instead of getting policy amount she has received a repudiation letter from the respondent stating that the deceased life assured deliberately, maliciously and intentionally withheld the true and correct information regarding his illness in the proposal form.  According to the complainant the repudiation of claim on the part of respondent is against accepted norms and beyond valid reasons hence it is unfair trade practice.  Thus the complainant suffered irreparable loss and mental agony and the repudiation of death benefit amounts to deficiency in service on the part of respondent.  According to  the complainants they are entitled to get 2,50,000/- as sum assured as per policy and Rs.10,000/- as compensation for mental stress and strain and 10,000/- as expenses.Hence the complaint.

          The opposite party contend that material allegations made in the complaint are false.  The complainant   is not maintainable either in law or on facts which is purely contrary to the contract between the parties.  The deceased life assured has not disclosed the Hospitalization/ treatment during 6^th September 2011 as a diagnosed case of chromic cholecystitils with calculus and he had undergone treatment from 13.06.2013 to 18.06.2013 as a diagnosed case of acute Bronchitis, Diabetes Mellitus and Hepatitis  prior to making the proposal on 13^th June 2014.  The deceased life assured had an obligation to mention the actual illness or disease in the proposal form at the time of applying for the Insurance policy.  According to the respondent if the deceased had disclosed the actual illness in the proposal form, the company would not have insured him under the said policy.  Again contended that the Insurance company issued policy on the principle of ‘uberimmaFidei’ ie utmost good faith that when an information on a specific aspect is asked for in the proposal form, the life assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge.  But here the policy holder willfully concealed the details of his diseases in the proposal form.  Hence there is no deficiency in service on the part of  respondent.  But here the life insured is guilty of non-disclosure of material facts.  That the complaint is not maintainable on the ground of suggest to varisuppressofalse”.  That is the life insured had sufficient knowledge that he had been undergoing treatments for various diseases while submitting Ext.D1 proposal form but he did not disclose the same and the details regarding his treatments were obtained by the respondent only on investigation.  Hence the life insured is guilty of suppressing material facts at the time of making proposal.  Hence the complainants(legal heirs of Sri.Devarajan) are not entitled for any relief.  The opposite party further prays to dismiss the complaint  with costs.

          In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or unfair trade practice on the part of opposite party in repudiating the insurance claim lodged by the complainants?
2. Whether the complainants are entitled to get the policy amount of the deceased Devarajan?
3. Whether the complainants are entitled to get compensation from opposite party?
4. Reliefs and costs?

Evidence on the side of complainants consists of oral evidence of PW1 and Exts.P1 to P7 documents.Evidence on the side of opposite party consists of oral evidence of DW1, DW2&DW3.Exts.D1 to D3(D3 marked subject to proof) Ext.X1 series, Ext.X2 series and Ext.X2 series (a) were also marked through DW2 and Ext.X3 series was marked through DW3.

Both parties filed notes of arguments.Though sufficient time has been given both sides have not advanced any argument.

Point No. 1 to 3

          For avoiding repetition of discussion of materials these three points are considered together.  The following facts are undisputed rather admitted in this case.  The 1^st complainant Smt.Rajeswari is the wife of deceased Devarajan the policy holder herein  and the remaining complainants 2 to 4 are children of said deceased Devarajan-Rajeswari couple.  Ext.P7 legal heirshipcertificate  reveals that the complainants are the legal heirs of deceased Devarajan. He had joined in Bajaj Alliance New Unit gain policy with policy No.0026543612 on 23.12.2006.  As per the policy conditions he has withdrawn the funds from the policy in 2014 due to severe financial stringency.  Again he has joined in another life insurance policy under the head Bajaj Alliance i-secure policy with policy No.0316018901 on 14.06.2014 having policy period of 15 years with policy coverage Rs.2,50,000/- and its validity period was from 14.06.2014 to 13.06.2029 and he had paid two premiums at the rate of Rs.2891/-.  Thereafter he has admitted in Travancore Medical College Hospital, Kollam several times as inpatient  and undergone treatment there and died on 06.09.2015 with that hospital.  Though the 1^st complainant preferred a claim but it was repudiated by the respondent on 07.06.2016 on the ground that the deceased insured had obtained the policy by concealing material facts regarding his treatment.

The  1^st complainant, who is the  wife of insured was examined as PW1 and got marked Ext.P1to P7 documents.  Ext.P1 is the   policy deposit Renewal Premium Receipt dated 20.07.2015.  Ext.P2 is the letter dated 09.01.2016 issued by Bajaj Alliance Life Insurance Company Ltd. send in favour of Smt.Rajasree.  Ext.P3 is the Advocate Notice dated 23.08.2016 issued by Smt.Rajasree to Bajaj Alliance Life Insurance Company Ltd.  Ext.P4 is the reply notice dated 30.08.2016 from Bajaj Alliance Insurance Company Ltd.by repudiating the insurance claims of deceased Devarajan.  Ext.P5 is the statement of account issued by Syndicate Bank, Kottarakkara.Ext.P6 is the original of Ext.P2.  Ext.P7 is Sakshyapathram dated 12.01.2016 issued by Tahsildar, KottarakkaraTaluk.

The main contention raised by the respondent for repudiating the Insurance Policy claim is that the insured Devarajan had pre-existing diseases since 2011 while availing the insurance policy in the year 2014.

          DW2 Dr.AjithKovil, Consultant Physician, Jessy Memorial Hospital, Kottarakkaradeposed that “ During 2010-14 he was working as Assistant Professor and Senior Consultant medicine at Travancore Medical College at Umayanalloorthat she had  treated one Devarajan at the above Medical College Hospital from 13.06.2013 to 18.06.2013.  The patient was diagnosed for acute bronchitis, diabetes, Mellitus and Hepatitis (mild).  The patient was asked for review after one week but did not turned up.  The file relating to the patient marked as Ext.X1 series.” In re-examination he deposed that “ the patient came on 03.02.2014 again with fever and cough.  The details regarding the 2^nd treatment contained in another file which is marked as Ext.X2 series and page No.8 of Ext.X2 series is marked as Ext.X2 series(a).  It is also brought out in evidence that the  treatment recorded in page No.8 of Ext.X2 series(a) is as continuation of earlier treatment dated 13.06.2013.

          It is also brought out in evidence through  DW3Dr.Joshy John, Surgical Gastro entrologist Holy Cross Hospital, Kottiyam that in  the year 2011 he had treated the deceased.Devarajan at Travancore Medical College Hospital, Kollamand the file relating to his treatment is marked Ext.X3 series.  According to DW3 on 17.05.2011 the patient was admitted for Cirrhosis liver that he had  treated the patient again from 05.09.2011 to 15.09.2011 Bladder stone infection and surgery was also conducted. During this period also liver Cirrhosis continues DW3 has also deposed that 2013 June amks¯ treatment recordsIm­vliverCirrhosis Cà F¶v ]d-bp-¶p.(Q) 02.02.2013-  Rm³ ImWp-t¼mÄ SnbmÄ¡vliver Cirrhosis D­v.  She added that once diagnosed liver cirrhosis he always will have the same”.

          Ext.D3  investigation report  reveals that the deceased Devarajan was suffering from Cirrhosis of Liver for more than 3 years (2011-2014), CA Pancreas was diagnosed in the year 2014 before the commencement of the policy that the claimant and the insured had purposefully not disclosed the real health conditions of Devarajan with intend to avail the policy benefits in a wrong way.

          Ext.D3 investigation report and the depositions of DW2 and DW3 doctors who  treated the deceased Devarajan and the Exts.X1 series, X2 series and X2 series(a) and X3 series treatment records issued from Travancore Medical College Hospital undoubtedly prove that the deceased insured had pre-existing diseases since 2011.

          It is evident from Ext.D1 proposal form dated 13.06.2014 that the deceased deliberately and intentionally gave wrong and false answers to questions of the proposal from knowingly well that those were incorrect and concealed the materials facts regarding his health condition.  DW1 Branch Manager of Insurance Company, deposed while cross examination that if the deceased insured had filled the proposal form truthfully then he would not have received the policy but he did not disclose anything in Ext.D1 proposal form  while issuing Ext.D2 Insurance policy.

                Even though the disclosure of material facts in the proposal form is mandatory and the insurance policy is a contract based upon the information furnished by the insured in the proposal form.  But  the insured Devarajan suppressed material facts regarding his health in Ext.D1 proposal form.  Again as a person of conscious mind and aware of the treatment underdone for various diseases since 2011 the insured concealed his pre-existing disease and treatments undergone from 2011 while availing the Insurance policy in the year 2014.

          The insurance company issued policy on the principles of uberimmaFidei. utmost good faith that when an information on a specific aspect is asked for in the proposal form an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge .  But here the policy holder willfully concealed the details of his ailment in the Ext.D1 proposal form, so the  insured is  guilty of non-disclosure of material facts.  Hence the complaint is not maintainable on the ground of suggestovarisupressofalsi,ie,while submitting Ext.D1 the life insured had sufficient knowledge that he had been undergoing treatments for various diseases,  but he suppressed those material facts and obtained insurance policy.  In the circumstances we are of the view that there is no deficiency in service or unfair trade practice on the part of opposite party .  Hence the complainants who are the legal heirs ofSri.Devarajan are not entitled to get   any relief sought for.  We find no merit in the complaint and the same is only to be dismissed.  Points answered accordingly.

Point No.4

          In the result complaint stands dismissed.

          No costs.       

Dictated to the Confidential Assistant  Smt. MinimolS. transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the   31^stday of  March 2021.

E.M.MuhammedIbrahim:Sd/-

S.SandhyaRani:Sd/-

                  StanlyHarold:Sd/-

              Forwarded/by Order

               Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                :1^st complainant, Rajasree, W/o Deceased Devarajan   

Documents marked for the  complainant

Ext.P1             : Policy deposit Renewal Previous Receipt and Bajaj Allianz I secure

                           Regular Premium schedules Policy No.0316018901dated 20.07.2015

Ext.P2             :photocopy of Letter issued by Bajaj Allianz Life Insurance Co.Ltd.

                        dated 09.01.2016 to Mrs.Rajasree

Ext.P3             : Advocate Notice dated 23.08.2016

Ext.P4             : Reply notice issued by Bajaj Allianze Life Insurance Co.Ltd.

Ext.P5                 :  Statement of account of Mr.Devarajan as on 26.02.2018 issued by

Syndicte Bank, Kottarakkara

Ext.P6             : Original of Ext.P2

Ext.P7             : sakshyapathram issued by Tahsildar, Kottarakkara(legal heirship

certificate) dated 12.1.2016)

Witnesses Examined for the opposite party:-

DW1               :Ananthapadmanabhan

DW2               : Dr.AjithKovil

DW3               : Dr.Joshy John        

Documents marked for opposite party:-

Ext.D1            : Proposal form of deceased Devarajan

Ext.D2            :  Policy document of Devarajan

Ext.D3            :  Investigation details

Ext.X1 series: Inpatient record of Devarajan from Travancore Medical College

                        Hospital, Kollam  MRD No.D-54671

Ext.X2 series :  Out patient record of Devarajan from Travancore Medical College

Hospital,KoolamMRD No.G-98810 marked through DW2

Ext.X2 series(a):  Ext.X2 series(a)  marked through DW2

Ext.X3 series :    Treatment details of deceased Devarajan at Travancore Medical College

                           Hospital dated 17.5.2011 marked through DW3.

E.M.MuhammedIbrahim:Sd/-

S.SandhyaRani:Sd/-

             StanlyHarold:Sd/-

              Forwarded/by Order

               Senior Superintendent