IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA. Dated this the 4th day of June, 2010. Present:- Sri. Jacob Stephen (President) Smt. C. Lathika Bhai (Member) Sri. N. Premkumar (Member) C.C. No. 24/2009 (Filed on 26.02.2009)Between: 1. Shiny Abraham, 42 years, W/o late Abraham Yohannan, Pallathu Puthen Veedu, Karvuvatta, Adoor Taluk, Peringanadu Village. 2. Priyanka Abraham, 15 years, --do-- --do— 3. Prince Gandhi Abraham, 13 years, --do-- --do— 4. Sneha Mariyam Abraham, 10 years, --do-- --do— (By Adv. Sunitha. K.K) ... Complainants. And: 1. Divisional Manager, LIC of India, Divisional Office, Nagampadam, Kottayam. 2. Branch Manager, LIC of India, Branch Office, Punthala Tourist- Home Complex, Adoor. (By Adv. K.T. Thomas) ... Opposite parties. ORDER Smt. C. Lathika Bhai (Member): The complainant has filed this complaint against the opposite parties for getting a relief from the Forum. 2. The facts of the complaint is as follows: The complainants are the wife and childrens of deceased Mr. Abraham Yohannan who had taken a LIC policy from the opposite parties on 03.10.2007 from Adoor Branch vide policy No. 393725275. The insured had paid an amount of Rs.8,498/- as the first premium of the policy. The nominee in the policy is the first complainant, the wife of the deceased. The insured was working in Sultanate of Oman, while on 25.03.2008 he died due to heart attack. As the nominee the first complainant approached the second opposite party for getting the insured amount of the policy taken by her husband. But the opposite parties rejected the claim on the ground that the insured had given wrong particulars when he took the policy. The complainant approached the opposite parties several time for getting the policy amount. The death of the insured was during the coverage period. But they did not settle the claim. The non-settlement of the complainant’s claim is a deficiency in service and the complainant is entitled to get the insured amount from the opposite parties. Therefore, the complainants filed this complaint for getting an order for directing the opposite parties to pay the insured amount along with interest and cost to the complainant. The complainant prays for granting the reliefs. 3. The opposite parties’ authorised legal representative filed the version raising the following contentions: The complaint is not maintainable either in law or on facts. The opposite parties have admitted the policy issued to Mr. Abraham Yohannan. The assured died on 25.03.2008 i.e. 5 months and 22 days after taking the policy and the claim was repudiated on the ground of deliberate mis-statements and suppression of material facts regarding the health of the assured at the time of the proposal. The deceased/assured declare that the statements in the proposal form and declaration shall be basis of the contract of insurance between the proposer and and LIC and that if any untrue averment contained therein, the said contract shall be absolutely null and void. In the proposal form against question No.11(e) “Are you suffering from or have you ever suffered from diabetes, tuberculosis, high blood pleasure, cancer, epilepsy, hernia, leprosy or any other diseases”. The answer given is “No”. On enquiry, the opposite parties have found that the deceased was undergoing treatment for diabetes from 04.12.1997 and administering insulin to control diabetes. It is a medically accepted fact that a diabetic patient is prone to heart diseases. The insured given answers and statements by suppressing facts and made mis-statements. The insurance contracts are contracts of Uberima fides, utmost good faith. The contracting parties have to disclose all material facts within their knowledge. The utmost good faith requires that there shall be no concealment, mis-representation or mis-statement as to material facts. As per Sec.45 of the Insurance Act, the opposite parties have every right to repudiate a policy within 2 years if it is found that the policy has been obtained by statement made in the proposal form or in any other document was inaccurate or false. The insured died within 5 months from taking the policy due to acute inferior wall myocardial infraction with cardiogenic shock shows that the assured was fully aware of his impending fate and took the policy suppressing the fact of his chronic diabetes. In this case, the opposite parties have every right to repudiate the claim of the complainant. There is no deficiency in service from the part of these opposite parties. Hence they prayed for the dismissal of the complaint with cost of them. 4. On the above pleadings, the following points were raised for consideration: (1) Whether the complaint is maintainable before this Forum? (2) Whether the reliefs sought for in the complaint are allowable? (3) Relief and Cost? 5. The evidence in this case consists kof the oral deposition of the first complainant as PW1 and Exts.A1 to A3 were marked. For the opposite parties, the authorised representative of the opposite parties adduced oral evidence as DW1 and Ext.B1 marked through PW1. After closure of evidence, both sides were heard. 6. Points No.1 to 3: The complainant’s case is that her deceased husband had taken an insurance policy from the opposite parties on 03.10.2007. After taking the policy, on 25.03.2008 he died due to heart attack. As the nominee in the policy, she filed a claim before the opposite parties for getting the assured amount. But they refused the claim on the ground that the insured had given wrong particulars in the proposal form for taking the policy. According to the complainant, she is entitled to get the insured amount as per the policy. Hence she filed this complaint for getting the reliefs as sought for in the complaint. 7. In order to prove the complainants’ case, the first complainant adduced oral evidence as PW1 and Exts.A1 to A3 were marked. Ext.A1 is the payment of first premium receipt. Ext.A2 is the copy of proposal form of Mr. Abraham Yohannan for taking the policy. Ext.A3 is the death certificate of the insured Abraham Yohannan. The opposite parties’ counsel has been cross-examined PW1. 8. The opposite parties contended that the deceased/insured had given answers and statements to the questions in the proposal form by suppressing facts and mis-statements. As per Sec.45 of the Insurance Act, they have the right to repudiate the policy within 2 years if it is found that the policy had been obtained by false statement given in proposal form. On enquiry, it is found that the deceased was undergoing treatment for diabetes from 04.12.1997 and aministering insulin to control diabetes. It is a medically accepted fact that a diabetic patient is prone to heart disease. The cause of death of the complainant’s husband is chronic diabetes. The opposite parties have repudiated the claim on valid ground and there is no deficiency in service from the part of them. 9. In order to prove the contentions of the opposite parties, the legal representative of the opposite parties adduced oral evidence as DW1 and Ext.B1 marked through PW1. Ext.B1 is the medical certificate dated 30.08.2008 issued from Al-Riyadh Specialised Medical Complex, Salalah, Oman for the treatment availed by the deceased Abraham Yohannan from there. 10. From the evidence, it is clear that the complainant’s husband had taken a life insurance policy from the opposite parties and after taking the policy within 6 months, her husband died due to heart attack. The opposite parties have repudiated the claim of the insured stating that the deceased given answers and statements to the questions in the proposal form by suppressing facts and made mis-statements. It is seen from Ext.A2 proposal form against question No.11(e) “Are you suffering from or have you ever suffered from diabetes, tuberculosis, high blood pressure, low blood pressure, cancer, epilepsy, hernia or any other diseases”. The answer given is “No”. At the time of cross examination, PW1 stated that “t]mfnkn FSp¡p¶ kabw `#175;mhn\v diabetes tcmKw Dmbncp¶p.”. On a perusal of Ext.B1 medical certificate, it is seen that the deceased Abraham Yohannan was a diabetic patient but was under control. He was on insulin and was on diet control and regular exercise. The deposition of PW1 and Ext.B1 shows that the insured was a diabetic patient and he was under treatment at the time of taking the policy. It is true that this fact was not disclosed by the insured at the time of the proposal. 11. The principle of Insurance Law is that a contract of insurance is based upon utmost good faith every fact of the material must be disclosed. The terms and conditions of the policy is binding on the parties and it is for the benefit of the consumer. From the evidence it is not clear that the insured was purposefully suppress or evade the treatment of diabetes at the time of proposal. The cause of death of the insured was due to heart attack as per the complaint. The complainant has not produced any evidence to show that the death of the insured was due to hear attack. In the version, the opposite parties have stated that the insured died within 5 months from the date of policy due to acute inferior wall myocardial infraction with cardiogenic shock. The opposite parties have no dispute regarding the cause of death. Hence, it is presumed that the complainant had filed all the relevant documents for proving the death and other issues before the opposite parties for processing the claim. The cause of death of the insured was heart attack. There is no mention that diabetes has direct nexus with ultimate cause of death of the insured. As per Ext.B1, Mr. Abraham Yohannan used to attend this Clinic from 04.12.1997 for general checkups. He was already diabetic, but was under control and on medication since then. His last checkup was on 18.11.2007, till his last visit he was never admitted in any hospital here for any ailment. Except for slightly elevated blood sugar the test reports were all within the normal limits. From Ext.B1 it is clear that the insured had no complications due to diabetics till 18.11.07. On a perusal of Ext.A1 premium receipt it is seen that the date of the policy was on 3.10.07 i.e. before the date mentioned in Ext.B1, it shows that the complainant has no complication relating to diabetes at the time of taking the policy. 12. The opposite parties have contended that a diabetic patient is prone to heart diseases and as such the risk involved in insuring a person having diabetes is much more than insuring person having normal health. The opposite parties have not produced any expert evidence for corroborating this contention. Diabetic is not a serious disease it is a part of ordinary strain and stress of life. In the circumstances, the opposite parties contention is not sustainable. From the available evidence the cause of death of the deceased/insured was due to acute inferior wall myo cardial infraction with cardiogenic shock and not due to diabetes. Moreover the other policies taken by the insured had been settled by the opposite parties. In the circumstances, we find that the repudiation of the complainant’s claim on the ground that the suppression of material fact is a deficiency in service and the complainant is entitled to get the insured amount of her insured/deceased husband as per the policy. On the basis of the above discussion the complainant’s prayer can be allowed. 13. In the result, the complaint is allowed thereby the complainants are allowed to realise an amount of Rs. 1 lakh (Rupees One Lakh only) as the insured amount of the policy taken by her deceased husband with interest at the rate of 8% per annum from the date of filing of this complaint till this date along with a cost of Rs.2,500/- (Rupees Two Thousand Five hundred only) from the opposite parties. The opposite parties are directed to comply this order within two months from the date of receipt of this order failing with an interest at the rate of 9% will be paid to the complainants till the whole payment. Declared in the Open Forum on this the 4th day of June, 2010. (Sd/-) C. Lathika Bhai, (Member) Sri. Jacob Stephen (President) : (Sd/-) Sri. N. Premkumar (Member) : (Sd/-) Appendix: Witness examined on the side of the complainants: PW1 : Shainy Abraham Exhibits marked on the side of the complainants: : Copy of the payment of first premium receipt dated 3.10.07 issued by the 2nd opposite party to the complainant’s husband. : Photocopy of proposal form of Mr. Abraham Yohannan. : Attested Photocopy of the Death certificate of the insured Abraham Yohannan. Witness examined on the side of the opposite parties: DW1 : C. Kanakaraj Exhibits marked on the side of the opposite parties: : Photocopy of medical certificate dated 30.08.2008 issued by Al-Riyadh Specialised Medical Complex, Salalah, Oman. (By Order) Senior Superintendent. Copy to:- (1) Shiny Abraham, Pallathu Puthen Veedu,Karvuvatta, Adoor Taluk,Peringanadu Village. (2) The Divisional Manager, LIC of India, Divisional Office, Nagampadam, Kottayam. (3) The Branch Manager, LIC of India, Branch Office, Punthala Tourist Home Complex, Adoor. (4) The stock file.
| | HONORABLE LathikaBhai, Member | HONORABLE Jacob Stephen, PRESIDENT | HONORABLE N.PremKumar, Member | | 
