This case is coming for final hearing on 30-06-2014 in the presence of Sri Adari Appa Rao, Advocate for Complainant and Sri M/s.T.V.S.K.Kanaka Raju & Co., Advocate for Opposite parties and having stood over till this date, the Forum delivered the following.                                                                                                                                                                                                                                                                                                                                                                                           

: O R D E R :

(As per Sri V.V.L.Narasimha Rao, Honourable Member on behalf of the Bench)

1. The complainant filed the present complaint against the Opposite parties 1 & 2 on 25.01.2013 under Sec.12 of Consumer Protection Act and requested the Forum to direct the Opposite parties to pay Rs.2,00,000/- Insurance Claim amount along with 24% interest p.a. from the date of claiming amount till realization along with compensation of Rs.50,000/- for causing mental agony and for costs.

2. The brief facts are as follows: The complainant submits that his father during his life time took a Life Insurance Policy No.14256926 for an amount of Rs.2,00,000/- policy amount and commencement of the date of policy is from 4.3.2011 for the said policy, the complainant is nominee on 13.07.2011, the complainant’s father has been admitted in the Community Health Centre, Aganampudi as he was suffering with body pains and fever. He has given treatment as an out-patient and prescribed  some medicines to him. While consuming the medicines he died on 17.07.2011. The complainant knowing about the policy obtained by his father from the Opposite party intimated the 1^st Opposite party regarding the claim of the Insurance policy amount and submitted claim form along with required documents to the Opposite party on 17.12.2011. Thereafter one person came from the Opposite party’s office and enquired about the death of the complainant’s father and took statements from the complainant as well as from the villagers. In the month of February 2012, the complainant received letter dt. 27.3.2012 from the Opposite party stating that  as the insured was suffering with kidney disease prior to this application date. They regret their inability to accept the claim form and in case the complainant wish to represent the claim to the company, he can do so within 30 days from the date of receipt of letter dt. 27.3.2012. Hence, the complainant filed the present complaint seeking reliefs as sought for.

3. On behalf of the Opposite parties No.1 & 2 M/s.T.V.S.K. Kanaraju, Advocates filed Vakalatnama and 2^nd Opposite party i.e. Branch Manager of the H.D.F.C. Standard Life Insurance Company Ltd filed counter and stated as follows: The Opposite parties is not having any dispute regarding the nomination in favour of the complainant in the Policy obtained by his father. As the complainant’s father has not disclosed about his previous health condition and obtained the Policy by suppressing about the earlier ailment. The Opposite parties were constrained to repudiate the claim. The death of the father of the complainant in the manner described therein are denied and shall be put to strict proof. The investigation done by the Opposite parties person is as stated by the complainant is correct and it is not denied. It is false to state that the complainant has received the letter which is back dated issued from the 1^st Opposite party. As the complainant’s father has not disclosed actual facts at the time of the obtaining policy, the complainant is not entitled for any reliefs from the Opposite parties, as there is no deficiency of service from the side of Opposite parties. The 1^st Opposite party adopted the counter filed by the 2^nd Opposite party.

4. On perusal of the above pleadings and the counter version of the Opposite parties, this Forum framed the following issues for consideration.

   1. Whether there is any deficiency of service on the part of Opposite parties

   2. To what relief.

5. The complainant filed his Evidence Affidavit reiterating the same facts mentioned in the complaint and on his behalf Ex.A1 to A11 were marked. On behalf of Opposite parties Sri S.Sanyasi Rao, Associate Manager, HDFC Standard Life Insurance Co. Ltd., Visakhapatnam filed Evidence Affidavit, in our opinion the same facts mentioned in the counter. The complainant submitted his written arguments and also the oral arguments and Opposite parties adduced their oral arguments.After the matter was posted for order on 30.06.2014 the Opposite parties filed I.A.No.186/2014 on 18.07.2014 to reopen the matter for furnishing evidence on their part.So, the case was reopened on 18.07.2014 and the I.A.No.186/2014 was allowed on 06.08.2014. On behalf of Opposite parties,the 2 attested copies of documents (1) Case sheet related to complainant’s father (2) Copy of the Ex.A1 are marked as Ex.B1 and B2 under protest.

6. Point No.1: The  present complaint was filed by the complainant for claiming Insurance Claim for Policy No. 14256926 obtained by his father from the Opposite parties 1 & 2. The Opposite parties in their counter stated that the said claim request was repudiated as the complainant’s father has not disclosed his earlier ailments and hence the complainant is not entitled for any claim from the Opposite parties. Ex.A1 is the booklet mentioning about the Policy No. 14256926 and along with the terms and conditions i.e. 1 to 44 pgs. Ex.A2 is the letter submitted by the complainant dt. 1.10.2011 to the Opposite parties for claiming the Insurance claim. By enclosing the Policy copy and death certificate of his father. Ex.A3  is the Death Certificate of the complainant’s father disclosing that his father died on 17.7.2011. Ex.A4 is the letter submitted by the complainant to the 1^st Opposite party by enclosing the relevant documents i.e. Death Certificate, Treatment details of out-patient ticket, Bank Account details, Family Ration and Vote card of Insured. Ex.A5 & A6 are the Courier receipts and for serving Ex.A4 letter  to the Opposite parties 1 & 2. Ex.A7 is the Opposite party Receipt dt. 13.7.2011 which reveals that the complainant’s father is suffering with pain in Knee joint and fever for 5 days and 4 medicines were prescribed to him. Ex.A8 is the repudiation letter of the Opposite parties served to the complainant stating that they are unable to accept the claim of the complainant vide Policy No. 14256926. Ex.A9 is the letter dt. 13.3.2012 served by the complainant to the grievances of the Opposite parties located at Mumbai for clearing the Insurance Claim through 2^nd Opposite party. Ex.A10 & A11 are the Courier receipts for serving Ex.A9 letter. In the Evidence Affidavit this complainant stated that due to some body pains and fever on 30.7.2011 his father was admitted on Community Health Centre, Aganampudi and admitted as an out-patient and he prescribed some medicines by the duty Doctor and while consuming medicines mentioned in Ex.A7, Prescription i.e. O.P. Receipt dt. 13.7.2011, his father died on 17.7.2011 which was confronted by the Ex.A3, Death Certificate issued by Gram Panchayat, Paravada (Mandal).

7. In Para No.2 of the counter and Evidence affidavit filed by the Opposite parties, they are stating that as the complainant’s father deliberately suppressed about his previous health condition that his father i.e. the insured was diagnosed with bilateral renal abscess and psoas abscess and was also found to be afflicted with acute renal failure. Suppressing that fact, he has opted the policy and further after personal enquiry of the Investigation Officer done by the 1^st Opposite party person as per Ex.A8, the claim was repudiated and complainant was advised to re-present the claim to the company within 30 days from the date of Ex.A8.

8. After receiving the Ex.A8 Repudiation letter, the complainant submitted Ex.A9 Letter to the 1^st Opposite party for clearance of the Insurance claim stating that his father is not having any disease or any operation or any kidney problems earlier prior to obtaining the policy from the 1^st Opposite party. So, he is entitled for the Insurance claim.

9. On perusing the Ex.A8, dt.30.11.2011 i.e. the personal and family history of the life to be assured, in clause 14 (1a), the question was raised that earlier the complainant’s father was suffered with kidney disorder. In that question the mark ( ü ) was done in the ‘NO’ column and also at the same time with regard to the illness, impairment or taking any medication or pills or drugs also it was marked ( ü ) in the ‘NO’ column only. Ex.A7 reveals that the complainant father was suffering with pain in knee joint and fever for 5 days and 4 medicines i.e. T.Diclo, T.Ca, T.BC, T.PCM has to be used by the petitioner father for curing the said problem. Ex.A3 disclosed that after starting using the medicines from 13.7.2011 his father died on 17.7.2011. The reasons for the death were not mentioned in the death certificate. On perusing the allegation of the Opposite party in Para no.2 of the counter and the Evidence Affidavit that the complainant’s father has suppressed the information about his earlier health problem and thereby the claim was repudiated and comparing with the Ex.A1 booklet nowhere in the terms and conditions it was mentioned that the claim can be repudiated because of the non mentioning of the pre-existing disease. In the Ex.A1, it was stated that the Minimum Sum Assured for age at entry of below 45 years is 125% of single premium. Regular premium (RP) including limited premium paying (LPP) contracts: 10 times the annualized premiums or (0.5 x T x annualized premium) whichever is higher. At no time the death benefit shall be less than 105% of the total premiums paid. On perusal of the page No.2 of Ex.A1, it reveals that the sum assured for the Insurance Policy Rs.2.00 lacs and annual premium is Rs.20,000/-. The Policy term is for 10 years and premium term is for 10 years. In Page 3 of the Ex.A1, it disclosed that the complainant is the nominee for his father in the Policy No.14256926. As seen from the Page No.15 of Ex.A1 i.e. Clause (3) (b) death benefit, it shows that if the life assured dies before  the Expiry Date of this benefit, the greater of the Sum assured less any partial withdrawals (as defined below) and the Unit Fund Value is payable subject to Provision 19 (exclusions). The Sum assured is as specified in the Policy Schedule. The level of death benefit will be at least 105% of the premiums paid i.e. the same point reflected in Page No.7 of Ex.A1. The Sum Assured less partial withdrawls will be calculated as “for the death before attainment of age 60 – Sum Assured less all partial withdrawals made during the two year period immediately preceding the date of intimation of death of the Life assured”.

10. Though the Opposite parties has denied and repudiated the claim of the complainant vide Ex.A8. As per legal maxim “Affirmantis est probare” means the person who affirms must prove.

11. Along with I.A.No.186/2014, dt.18.7.2014, the Opposite parties have filed two documents i.e., case sheet related to the Complainant’s father who has admitted in the K.G.H on 10.12.2010 and was discharged on 04.01.2011 and also Xerox copy of Ex.A1.The Counsel for the Complainant raised objection for marking the said documents and the two documents were marked as Ex.B1 & B2 under protest.

12. In Exhibit A1/B2 i.e., in Clause-18(1 & 2) it reveals that if any information provided is incomplete or incorrect, notwithstanding any other provisions under the policy, we reserve the right to vary the benefits which may be payable and further if there has been non disclosure of a material fact, then, we may treat your policy as void from commencement and we will not be under contractual or any other obligation to honour such a contract.  In such cases, the policy will terminate immediately and no further benefits will be payable.  Observing Section-45 of Insurance Act, 1938 it was stated that no policy of life insurance effected before commencement of act shall after the expiry of the two years from the date of commencement of this act and no policy of life insurance effected after coming into force of this act, shall after expiry of the two years from the date on which it was effected be called in question by an insurer on ground that statement made in the proposal or in the report of medical officer or referee or friend of insured or any other document leading to the issue of the policy was accurate or false which shows that the material matter or suppressed facts it discloses that policy was obtained fraudulently by the policy holder and 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.

13. Exhibit B1 case sheet of the Complainant’s father which was attested by the Opposite parties brought from the K.G.H discloses that he has been admitted in K.G.H on 10.12.2010 and he was discharged on 04.01.2011.  The case sheet discloses that as per the neurologist “This is a case of B/L renal abscess Psoas Abscess with improved renal function.  Please take over the case.”  The said direction was given by the Neurologist to the other Doctors in the K.G.H.  In the same case sheet Doctor Chodisetty Subbarao Chief Neurologist, K.G.H, Visakhapatnam stated that on 25.12.2010 that “this is a case of B/L renal abscess Psoas Abscess please examine the case and do needful”.  The Neurologist notes dated 25.12.2010 reveals that the case of one B/L Renal abscess Psoas Abscess.  In the physical examination mentioned in the case sheet it was stated that “this is a case of B/L Renal abscess (RT) Psoas Abscess with improving renal function (8.5mg or –> 2.0mg and on 03.10.2011 it was mentioned as the case admission date correspondence to S-V unit kindly refer to S-V unit”.  Observing the Ex.A1 policy it reveals that the Complainant’s father has obtained policy from the Opposite parties on 04.03.211 and as per his version, as he has suffered with severe stomach pain, he was admitted in Anganapudi Government Hospital on 13.07.2011 and died on 17.07.2011 i.e., confronted by the Complainant in Ex.A4.  Exhibit A3 reveals that his father died on 17.07.2011. 

14. The Opposite parties are strongly depending upon the Ex.B1 & B2 and Ex.A1/Policy Terms and Conditions and stated that the Complainant’s father has suppressed the earlier health facts of admission into the K.G.H for Kidney problem and obtained the Insurance Policy after discharging from the K.G.H on 04.01.2011 i.e., vide policy Ex.A1 which was obtained on 04.03.2011.Though the Complainant is alleging the Opposite parties for submitting Xerox copies, as seen from the contents of the Ex.A9 with regarding to the personal medical details in Clause-14, it shows that his father has not mentioned anywhere with regarding to the previous ailments that is mentioned in Ex.B1 case sheet of K.G.H. In all the columns he stated that he is not having ailments, he is not having any Kidney disorder and he is not hospitalized at any time.

15. Hence, observing the Ex.B1, Ex.A9 and Ex.A1 and B2 policy conditions and the dates of obtaining the policy i.e., 04.03.2011 along with the Death Certificate i.e., Ex.A.3 and Ex.A4 letter of the Complainant, we are of clear opinion that the Complainant’s father has suppressed his earlier ailments pertaining to K.G.H problem i.e., Renal failure for which he has under gone treatment in K.G.H vide Ex.B1 from 10.12.2010 to 04.01.2011 and obtained the Ex.A1 Policy from OP’s on 4.3.2011.So, observing the Clause-18 of the Ex.A1/Ex.B2 policy conditions, the Complainant is not entitled for the claim of the Insurance Policy as his father has suppressed the actual facts.Suppressing that issue, vide Ex.B1, Complainant filed the present Complaint for wrongful gains.

16. In the similar case in Civil appeal No.2776/2002 between Satwant Kour Sandu Vs. New India Assurance Company, the Honourable Supreme Court delivered the judgment on 10.07.2009 stating “the material on record, claim by the Appellant has been found to be fraudulent”.We are of the opinion, no useful purpose would be served by remitting the matter to National Commission for fresh adjudication of merits”. Observing Section-45 of Insurance Act, 1938 and the premedical record of the Appellant the Honourable Supreme Court held that “in view of foregoing discussion, we do not find any merit in this appeal, it is dismissed accordingly, with no order accordingly, but with no order as to the costs”.

17. The facts in the present complaint and the facts mentioned in the appeal supra (vide Para 15) of the case law Civil Appeal No. 2776/2002 are the same.In that case also the Appellant suppressed his previous medical record.In this particular case also, the Complainant’s father suppressed his previous medical record i.e., Ex.B1 case sheet. Suppressing that Ex.B1, Complainant filed the present Complaint, for which he has to be penalized as this Forum is having power under Sec.13(5) r/w Reg.23 of C.P.Regulation, 2005. However, no direction is given to that extent. The Opposite Parties may at their liberty can take action Complainant, if so they were advised.

18. Hence, viewing Ex.B1 case sheet, Ex.A1/B2 policy conditions Ex.A9 letter of the Complainant dated 12.03.2012 and personal medical details of Complainant’s father, we are of firm decision, the Complaint is liable to be dismissed as the Complainant’s father has suppressed his earlier medical record for which he has undergone treatment in the K.G.H vide Ex.B1 from 10.12.2010 to 4.1.2011. No direction for costs. Accordingly, Points 1 & 2 are answered.

19. In the result, the Complaint is dismissed.No order as to the costs.

    Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 28^th day of August, 2014.

     

     

     

            Sd/-                                                                   Sd/-

    President (FAC)                                                         Member           

                                                                            District Consumer Forum-I

                                                                                Visakhapatnam

     

CC 271/2012

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:   

        Sd/-                                                                   Sd/-

President (FAC)                                                         Member