BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A.,LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.159/2009 Order dated this the 14th day of June 2010 COMPLAINANT/S Smt.Swapna W/o Dayananda D, R/o Opposite to Chamundeswari Temple Road, Chamundeswari Nagar, Mandya. (By Sri.H.K.Ningegowda., Advocate) -Vs- OPPOSITE PARTY/S The Manager, H.D.F.C. Standard Life Insurance Co., Ltd., Near L.I.C. Office, Bandigowda Layout, Mandya. (By Sri.M.E.Madhusudhan., Advocate) Date of complaint 18.12.2009 Date of service of notice to Opposite party 31.12.2009 Date of order 14.06.2010 Total Period 5 months 14 days. Result The complaint is dismissed. However, there is no order as to costs. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 against the Opposite party claiming insurance amount of Rs.2,00,000/- with interest. 2. The case of the Complainant is that her husband D.Dayananda had obtained insurance policy from Opposite party under policy No.12207511 dated 25.09.2008 for Rs.2,00,000/-. The insured D.Dayananda fell down in his house on 29.10.2008 complaining of chest pain in his house and he was taken to P.H.C. Maduvinakodi where he died. Before this incident, he was hale and healthy. After the death of the assured, the Complainant being the nominee, filed claim form to the Opposite party claiming insurance policy amount. But, the Opposite party has not settled the legal claim and on several requests and reminders, the Opposite party issued endorsement dated 13.07.2009 repudiating the claim on untenable grounds that the deceased D.Dayananda had brain stem astrocytoma at the time of obtaining the insurance policy. Therefore, the Opposite party has committed deficiency in service. Therefore, the present complaint is filed. 3. The Opposite party has filed version admitting the insurance policy taken by D.Dayananda and Complainant is the nominee. Admitting the death of the deceased and preferring of the claim by the Complainant, it is contended by the Opposite party that on proper application of mind Opposite party has repudiated the claim, since the investigation on account of early claim, revealed that the assured was admitted to hospital on 26th September 2008 with recurrent brain stem astrocytoma (cancer to the brain) and the hospital papers revealed that the said condition was existent from December 2005 onwards and the insured had received treatment and was operated for the same twice in December 2005 and April 2008 as per discharge summery of St. Philomenas Hospital, Bangalore and history and findings on admission record of Apollo BGS Hospital. In spite of it, the insured had suppressed the material facts at the time of making the proposal for insurance. The contract of the insurance is based upon utmost good faith and violation of the insurance agreement renders insurance void. Therefore, the Opposite party has not committed any deficiency in service and Opposite party is not liable to pay any claim and the complaint is liable to be dismissed. 4. During trial, the Complainant is examined and has produced the documents Ex.C.1 to C.4. The Opposite party officer and one doctor are examined and the documents Ex.R.1 to R4 are marked. 5. We have heard the both sides. 6. Now the points that arise for our considerations are:- 1. Whether the Opposite party proves that the life assured had suppressed the material facts at the time of obtaining the policy in spite of having knowledge of brain cancer? 2. Whether the Opposite party has committed deficiency in service in repudiating the insurance claim? 3. Whether the Complainant is entitled to the insurance claim? 7. Our findings and reasons are as here under:- 8. POINT NO.1:- The undisputed facts borne out from the materials on record are that D.Dayananda S/o Dasegowda, the husband of the Complainant had obtained Unit Linked Endowment Policy for Rs.2,00,000/- from Opposite party by paying premium amount of Rs.12,000/- on 25.09.2008 submitting the proposal form as per Ex.R.4 dated 23.09.2008 and the insured died on 29.10.2008 and the Complainant being a nominee preferred the claim and the Opposite party repudiated the claim on the ground of suppression of material facts. The burden is on the Opposite party to prove the suppression of material facts. Under Section 45 of the Insurance Act, the Insurance Company can avoid the insurance if the insured died within two years on suppression of material facts. 9. Now, the contention of the Opposite party is that from 2005 itself the insured was treated for brain tumor at St. Philomenas Hospital, Bangalore and later admitted to B.G.S. Apollo Hospital on 26.09.2008 one month earlier to his death for the same disease. But, he has suppressed at the time of giving proposal Ex.R.4 dated 23.09.2008 and relied upon Ex.R.1 the admitting form and records of the B.G.S. Apollo Hospital and Ex.R.2, record of St. Philomenas Hospital, Bangalore evidence of R.W.1 Dr.Ramesh Ranganathan. The evidence of R.W.1 Dr.Ramesh Ranganathan and Ex.R.1 the documents clearly established that one D.Dayananda, age 46 years, No.1564, 2nd Stage, Srirangapatna, Mysore was admitted to the Hospital on 26.09.2008 with a history of previous brain tumor and discharged on the same day at 7.15 a.m. to go to original hospital for treatment. According to his evidence, the patient had earlier treatment in December 2005 at St. Philomenas Hospital, Bangalore for brain tumor. In Ex.R.1, the B.G.S. Apollo Hospital admission form final diagnosis is recurrent positive astrocytoma with acute breathlessness and the purpose of admission is brain stem astrocytoma and as per the discharge letter, the discharge was obtained against medical advice. In fact consent for ICU care and treatment in Apollo BGS Hospital was given Complainant Swapna with mobile numbers on 26.09.2008 itself. The Opposite party has produced Ex.R.2 which is Doctors Hospital Certificate issued by R.W.1 Dr.Ramesh Ranganathan and as per this document C.T. scan was done on 26.09.2008 and it is a known case of brain stem tumor and the C.T. scan of the brain was done. The Opposite party has produced Ex.R.3, the document issued by St. Philomenas Hospital, Bangalore and this document shows that D.Dayananda was admitted to hospital on 07.12.2005 and discharged on 20.12.2005. This document reveals that MRI of the brain was conducted two times on 21.11.2005 and 24.11.2005 and the surgery was made on 10.12.2005 and the diagnosis was brain stem astrocytoma and as per this document second opinion was sought from Nimhans on 17.12.2005 which revealed features of a low grade fibrillary astrocytoma and MIB index is about 4%. There is no reason to disbelieve the evidence of R.W.1 Dr.Ramesh Ranganathan and the documents Ex.R.1, R.2 and R.3 are hospital records. 10. Though, the Complainant has pleaded and deposed that her husband died due to cardiac attack, but no document is produced. Further, the Complainant has gone to the extent of denying to the treatment to her husband in St. Philomenas Hospital, Bangalore and Apollo B.G.S. Hospitals. She is a post graduate and though she denied the address given in Ex.R.3, but she has admitted the address given in Ex.R.1. But, the contention for the learned counsel for the Complainant that a person having D.Dayananda are so many persons and these documents do not pertain to the husband of the Complainant is without any force when the Complainant has admitted the name and father names of her husband and the address given in the Apollo BGS Hospital record Ex.R.1. Though, in the re-examination, it was sought to elicit that there is 1st Floor in Sriramapura address house, but it is not the case that brain case of D.Dayananda was residing in the 1st Floor. So, the evidence and documents produced by the Opposite party clearly established that from December 2005 itself, the deceased insured had brain tumor problem and treated in the hospital and just three days earlier to admission to the Apollo Hospital as per Ex.R.1 with serious breathlessness due to brain cancer, the proposal form is given on 23rd September 2008 to obtain the policy for Rs.2,00,000/- and died within one month six days from the date of proposal. So, it is established that though the deceased insured had the knowledge of brain cancer acute breathlessness has not willfully disclosed the brain tumor disease and thus suppressed the material fact for obtaining the policy giving false answers in the proposal form about his health condition. Therefore, in the proved circumstances, it is evident that to obtain the insurance policy for Rs.2,00,000/- just 3 days before the death, false answers about the health condition was given. The contention of the learned counsel for the Complainant is that as per the evidence of the doctor, a person having brain tumor will not be able to write and there will be no stability of the body and movement of the limbs, but it is not the evidence that such a person will not be in a position to put his signature. Therefore, the Opposite party has proved the suppression of material facts by the deceased insured at the time of obtaining the policy, though had the knowledge of brain tumor disease. 11. POINT NO.2:- The contention that Opposite party has committed deficiency in service in repudiating the claim false to the ground, because on the basis of materials collected by the Opposite party and on proper application of mind that though the deceased insured had brain tumor disease since 2005 itself, had suppressed the materials about his brain tumor disease in order to obtain the policy within 3 days prior to the death, the Opposite party rightly repudiated the claim. So, we cannot attribute any deficiency in service against the Opposite party. 12. POINT NO.3:- The Complainant has sought for insurance amount of Rs.2,00,000/- as per the policy. It is well known that the contract insurance is based on utmost good faith, but the proved facts clearly established that in the proposal form, the deceased assured had given false answers wantonly about his health condition suppressing the material facts of brain tumor disease and hence, the contract of insurance becomes void and the Opposite party as per Section 45 of the Insurance Act is entitled to forfeit the insurance claim and even the premium paid. Therefore, the Complainant is not entitled to insurance claim as sought for. 13. In the result, we proceed to pass the following order; ORDER The complaint is dismissed. However, there is no order as to costs. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 14th day of June 2010). (PRESIDENT) (MEMBER) (MEMBER)
