COMPLAINT FILED ON: 27.10.2009

DISPOSED ON: 07.02.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

DATED THIS THE 7^TH FEBRUARY 2011

  PRESENT:-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA               MEMBER

                     SRI. A. MUNIYAPPA                        MEMBER          

COMPLAINT No.2507/2009

O R D E R

SRI. B.S. REDDY, PRESIDENT

The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against Opposite Parties (herein after called as O.Ps) to pay the assured sum of Rs.12,00,000/- with compensation of Rs.3,00,000/- on the allegations of deficiency in service on the part of the OPs. 

2.      The case of the complainant is to be stated in brief is that:

The complainant’s mother obtained policy No.456578194 for assured sum of Rs.12,00,000/- which was issued after medical fitness certificate, issued by OPs doctor. The complainant’s mother died on 05.02.2009 at Bangalore Hospital at her 54 years due to sudden non-functioning of heart. She has no diagnostic history of heart ailments. Therefore the reasons stated for denying death claim by OPs in their letter dated 31.03.2009 is false. Dr. B.N. Suryanarayana was never examined the complainant’s mother, he has not diagnosed any of diabetes or heart problem disease to the mother of the complainant. OPs managed to obtain false certificate from Dr. B.N. Suryanarayana. The said doctor never examined the mother of the complainant during her lifetime; therefore it is false to say that the mother of the complainant had heart problem and diabetes for 13 years. As per the terms and conditions of the insurance policy OP company is liable to pay the assured amount to the complainant as he is the nominee under the policy. The insured disclosed all about her health condition as on the date of proposal. Dr. B.N.Suryanarayana has colluded with OP for illegal gains and issued false certificate to help OPs to escape from liability. OPs caused tension and mental agony by giving false reasons for not making payment of policy amount; hence OPs are liable to pay special damages for loss of time and mental agony. The complainant got issued demand notice on 23.06.2009, OPs replied by giving untenable reasons. Hence the complaint seeking the reliefs stated above.

3.      On appearance, OPs filed the version contended that the complaint is false, malicious, incorrect and malafide and is nothing but an abuse of process of the law, the same is liable to be dismissed. The complainant has not approached this Forum with clean hands. The repudiation was based on suppression of material facts in the proposal form. The information in regard with the insured’s health was material in nature for the OPs to determine the insurability of the insured, by providing spurious information the DLI has committed a breach of contract of insurance which is based on the principle of utmost good faith. The DLI at the time of signing the application form did not mention that she is suffering from Diabetes Nephropathy and COPD and was undergoing treatment for the same. This material medical non-disclosure on part of DLI is sufficient to repudiate the said policy. The DLI passed away within short span of signing the proposal form, which itself is a strong ground to raise reasonable doubt over the correctness of the material representations made in the proposal form.

          It is stated that on 11.06.2008 after understanding all the terms and conditions of the policy, DLI, filled up a proposal form with “Life Maker Premium Unit Linked Plan” for an assured sum of Rs.12,00,000/-. Based on the declaration and information provided in the proposal form OP had issued the policy in the name of DLI on 07.07.2008 and dispatched the policy documents to DLI. The complainant being the son of DLI was made the nominee. On 20.02.2009 OP received the death claim intimation form, attending physicians statement for death claim, death summary from Bangalore Hospital and death certificate. OP had sent a letter dated 20.02.2009 to the complainant and had acknowledged the documents received at the time of intimation of the claim. According to death claim intimation form, it was stated that the DLI had passed away on 05.02.2009 due to heart attack. However attending the physicians statement for death claim clearly states that the DLI had been suffering from Diabetes Mellitus for a period of 13 years and Myocardial Infraction for a period of 6 years prior to her death. The DLI had not disclosed the material fact that she had been suffering from Diabetes for the past 13 years and was treated for Myocardial Infraction 6 years back, while signing the proposal form and further DLI has answered in the negative to the specific question on Diabetes in part D of the proposal form. Pursuant to the claim by the complainant, an investigation was conducted by the OP, on the basis of which it was found that DLI had not disclosed the material fact of suffering from Diabetes Mellitus and Myocardial Infraction at the proposal stage. OP had repudiated the claim on the ground non disclosure of the material fact and accordingly informed the complainant vide letter dated 31.03.2009. OP has duly replied the legal notice stating that the claim was repudiated due to non disclosure of material fact of suffering from Diabetes Mellitus and Myocardial Infraction. The DLI had intentionally misrepresented and has not disclosed the fact she has been suffering from Diabetes Mellitus for long time. The complainant himself had submitted the attending physicians statement for death claim which was filled up by Dr. B.N.Suryanarayana, which clearly states that the DLI had been suffering from the Diabetes Mellitus for a period of 13 years and Myocardial Infraction for a period of 6 years prior to her death. The information in regard with the DLI’s health was material in nature for the OP to determine the insurability of the DLI, by providing false information; the DLI has committed a breach of contract of insurance. Therefore it is prayed to dismiss the complaint with exemplary costs.

4.      In order to substantiate the complaint averments, the complainant filed affidavit evidence. OPs in support of defecnce version got filed affidavit evidence of Sri. Anil Sharma, Manager (claims) and produced documents.

5.      Arguments on both sides heard. Points for consideration are:

      Point No.1:- Whether the complainant has proved           

                          the deficiency in service on the part of

the OPs?

Point No.2:- If so, whether the complainant is

                   entitled for the reliefs now claimed?

       Point No.3:- To what Order?

6.      We have gone through the pleadings, the affidavit and documentary evidence of both the parties, arguments advanced. We record our findings on the above points are:

Point No.1:- Affirmative.

Point No.2:- Affirmative in part.

Point No.3:- As per final order.

R E A S O N S

7.      At the outset it is not at dispute that the complainants mother obtained policy No.456578194 for assured sum of Rs.12,00,000/- from OPs and she died on 05.02.2009 at Bangalore Hospital, R.V. Road, Bangalore due to heart attack. The complainant being the son and nominee under the policy submitted claim application claiming the amount of insurance. OPs repudiated the claim by their letter dated 31.03.2009 on the ground that the mother of the complainant Ms. Rukmini B. had suppressed the material facts regarding her health. While submitting the proposal for the policy it is stated that the deceased assured has answered the questionnaire as to whether she has ever been diagnosed of the following conditions – Diabetes – No. Further it is stated that Late Ms. Rukmini B. was known case of Diabetes and Myocardial Infarction i.e., before the proposal sign date and as per medical questionnaire certificate issued by Dr. Aswath N Rao Late Ms. Rukmini B. was known case of Diabetes Mellitus and Heart problem for the past 2 years; as per attending physician’s statement issued by Dr. B.N. Suryanarayan Rao dated 17.02.2009, life assured was under treatment for Diabetes Mellitus for 13 years and was on insulin and used to take anti diabetic drugs and was treated for Myocardial Infarction 6 years back. Further as per death summary of the Bangalore Hospital, Bangalore, the life assured was a known case of Diabetes Mellitus, Ischemic heart disease and Hypertension with past history of Myocardial Infarction and Pulmonary edema.

8.      The proposal form was signed on 16.06.2008 and the policy was issued on 07.07.2008. The life assured was admitted at Bangalore Hospital, Bangalore on 02.02.2009 with complainant severe breathlessness and cough expectoration and died on 05.02.2009. In the death summary issued by Bangalore Hospital it is stated that the life assured is a known case of DM / IHD / HTN with past history of MIC and pulmonary edema. She was advised CABG for poor cardiac vascular status several years ago, but had refused. Her recent cardiac status was suggestive of poor EF (28%). She was admitted to ICU and started on antibiotics and repeated ECG were done to rule out any cardiac event. Her CXR was suggestive of LRTI. She had episodes of anthymic during her stay in ICU. On the third day of her admission, she developed breathlessness which did not respond to oxygenation, did not improve after cardiac medications as well. She developed sudden cardiac arrest for which she required CPR, intubation and mechanical ventilation was started. She deteriorated despite all medications, ventilators and succumbed on 05.02.2009 at 12.25 pm.

In the history sheet of the hospital it is recorded that patient known Diabetic, old MI, HTN, GERD (documented in previous medical note) also history of previous episodes of pulmonary; patient has been on regular treatment for all the above with regular follow up elsewhere. It is stated that no history of previous hospital admissions. OPs have not produced any material to show that earlier to admission in Bangalore Hospital on 02.02.2009; the life assured had taken any medical treatment for any of the diseases as shown in the past history recorded in the history sheet. It is not known as to who furnished such a past history. OP not got filed affidavit of doctor who recorded past history of the patient. Without there being any previous medical documents with regard to medical treatment for any of the deceases stated therein, it is difficult to accept that the life assured suppressed material facts regarding her previous ailments. When it is specifically stated in the history sheet that there is no history of previous hospital admission; it is difficult to accept that the life assured was suffering from any of the diseases as noted in the history sheet. In the complaint at para – 3 it is specifically pleaded that the policy was issued after medical fitness certificate issued by the doctor of OPs. In the version filed OPs have denied the contents of para – 3 of the complaint. It may be noted that the date of birth of assured as mentioned in the proposal form is 20.09.1955; the date of proposal is 16.06.2008 thus as on the date of proposal, the life assured was aged about 54 years. It is difficult to accept that without medical examination of the life assured; the proposal could have been accepted and policy issued. OPs have not produced the medical certificates of the life assured with regard to medical examination conducted at the time of proposal of the policy. Dr. Aswath N Rao of Bangalore Hospital was the attending physician of the life assured and his statement for the questionnaire that Ms. Rukmini B was known case of Diabetic Mellitus and heart problem for the past 2 years is based on the past history recorded in the history sheet of the Hospital. Earlier to 02.02.2009 the life assured was not examined by this doctor and without there being any material with regard to the previous medical treatment; the statement that the life assured was a Diabetic Mellitus and heart problem for the past 2 years cannot be accepted.

Though in the repudiated letter it is stated that Dr. B.N. Suryanarayana Rao, physician has given his statement on 17.02.2009, but there is no any statement of the said date of the said doctor produced by OPs. As per the said physician’s statement it is stated that life assured was under treatment for Diabetic Mellitus for 13 years and was on insulin and used to take antibiotic infarction 6 years back. The complainant specifically pleaded that this physician was not their family doctor and he has not examined the life assured at any time and no medical treatment was given by him. OPs in order to defeat the claim made that physician to give such statement. Even in the legal notice issued to OPs it is clearly stated that the said physician was not at all the family physician of the deceased and at no point of time he has given medical treatment of any of the deceases. OPs failed to produce any medical records maintained by the said physician with regard to the previous medical treatment given to the deceased and even the said physician has not filed any affidavit evidence to prove that he was the family physician of the deceased and the deceased used to take medical treatment from him. Only the TPA (third party administrator) Rotashield Health Care Services Ltd., during course of investigation has collected the questionnaire of this physician on 25.03.2009 and submitted report to the OPs for repudiating the claim. TPA has also obtained the statement of Ganesh Gandhi Medical Store, Proprietor with regard to any medicines purchased by the life assured, but no documents are collected from that medical store; in support of the defence that the deceased used to take the medicines for treatment as prescribed by her family physician. In case if her physician Dr. B.N. Suryanarayana Rao has prescribed any medicines and she had taken the medicines from that medical store; the proprietor of medical store could not have failed to produce the medical bills or medicine prescriptions issued by the physician. Therefore the statement of Dr. B.N. Suryanarayana Rao collected by TPA stating that he is a family physician and he knows, the deceased for the last 12 years and she was suffering from Diabetes Mellitus, Myocardial Infraction cannot be accepted. Along with the death claim application Form – A, the complainant has submitted Form – C attending physician statement, the attending physician was Dr. Aswath N Rao of Bangalore Hospital. Only the TPA has collected the statement of Dr. B.N. Suryanarayana Rao stated to be family physician of the deceased life assured. Under these circumstances we are of the view that OPs failed to prove that the deceased was suffering from Diabetic Mellitus, Ischemic heart disease and Hypertension with past history of Myocardial infarction and pulmonary edema as on the date of the proposal for the policy and suppressed the said pre existing diseases. In view of the same OP were not justified in repudiating the claim. The act of OPs repudiating the claim without due application of mind amounts to deficiency in service. The complainant being the son of life assured and nominee under the policy is entitled for the policy amount of Rs.12,00,000/- with interest at 9% p.a. from the date of repudiation of the claim i.e. 31.03.2009 till the date of realization. Accordingly we proceed to pass the following:    

O R D E R

The complaint filed by the complainant allowed in part. OPs are directed to pay an amount of Rs.12,00,000/- towards settlement of the policy No.456578194 with interest at 9% p.a. from 31.03.2009 till the date of payment and pay litigation cost of Rs.5,000/- to the complainant.

This order is to be complied within four weeks from the date of this order.

Send the copy of this order to both the parties free of cost.

(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 7^th day of February – 2011.)

PRESIDENT

MEMBER                                                      MEMBER 

 Snm: