Complaint originally filed on: 05.05.2010
Complaint taken on board after remand on : 14.06.2012
Complaint Disposed after remand on:08.12.2016
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.203/2010
DATED THIS THE 8th DAY OF DECEMBER 2016
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT:
Zarina Taj W/o Late Fayaz Ahmed,
Aged about 48 years,
C/o A.R.Samad and Sons,
M.G.Road, Chikmagalur City.
[By Sri/Smt. Hareesh Singatagere, Advocate
(Complainant not present after remand)
V/s
OPPONENT:
ICICI Prudential Life Insurance Co. Ltd.,
K.M.Road, Chikmagalur City,
Represented by its Manager.
(Ex-parte before remand)
(By Sri/Smt. D.R.Charan, Advocate (after remand)]
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The case is remanded back by Hon’ble State Commission to try the case afresh by issuance of summons to both parties and after appearance to receive version and affidavit evidence and other documents from both side. Accordingly, after remand, we have issued notice to both complainant and OP, for which the OP appeared and filed affidavit with documents as Ex.R1 to R4. But complainant not appeared in spite of service of notice. Hence, proceeded the trial in the absence of complainant.
2. The complainant filed this complaint alleging deficiency in service in not settling the claim towards the death of her husband. Hence, prays for direction against OP to pay the assured amount of the policy along with Rs.25,000/- towards deficiency in service.
3. The brief facts of the complaint is that:-
The husband of the complainant by name Fayaz Ahmed had obtained life insurance policy bearing No.04098387 in the year 2006 for the assured amount of Rs.1,00,000/- . The OP/Company had issued a policy to the husband of the complainant after verifying the reports of medical check-up of Fayaz Ahmed. Such being the case, when the policy is in force, the husband of the complainant died on 13.12.2008. Being the beneficiency of the policy the complainant filed the claim for payment of assured amount of Rs.1,00,000/-. But the OP/Company had repudiated the claim through their letter dated:03.11.2009 on the ground that the deceased husband of the complainant had pre existing disease. The repudiation made by the OP is not correct and repudiated on false grounds. Hence, the OP rendered a deficiency of service in not settling the claim. Hence, prays for payment of the claim amount along with compensation for deficiency in service.
4. After remand we have issued a notice to the OP, for which the OP appeared and filed version and contended that the claim made by complainant was repudiated on the basis of concealment of material facts by the Life Assured. The Life Assured has concealed his past medical history at the time of answering queries in the proposal form. Therefore, there is no deficiency in service on the part of this OP in repudiating the claim of the complainant.
The OP further contended that the husband of the complainant had obtained the policy fraudulently, dishonestly and by misrepresentation and he has concealed his past medical history in the proposal form and thereby the Life Assured has mis-represented this OP in order to obtain the policy. The OP further contended that the contract of insurance is based on the principle of utmost good faith i.e. Doctrine of Uberrimafides. The insured under the obligation to disclose all the material facts correctly, honestly and truthfully to this OP at the time of obtaining the policy, failing which the contract of insurance shall be declared as void ab-initio, illegal, invalid and unenforceable.
The OP further contended that the husband of the complainant was a known case of diabetes mellitus and hypertension since 2000 i.e. prior to insurance of the policy and he was regular in taking treatment towards the same. The said treatment taken by the husband of the complainant was not disclosed at the time of inception. Hence, the husband of the complainant had with mala-fide intention had taken the policy from this OP. The complainant made a claim towards the death of her husband and they have repudiated the claim for the reason that Life Assured has suppressed and mis-stated his past history at the time of obtaining the policy.
The OP further contended that the husband of the complainant was diagnosed with diabetes mellitus and hypertension since 2000 and was under treatment M.V.diabetes clinic, Royapuram, Cheenai. It was also revealed that the husband of the complainant test for assessment of diabetes mellitus in November 2006 which revealed elevated blood pressure raised creatinine levels, un-control diatetes mellitus, diabetic neuropathy, proteinuria and Retinopathy. It is also diagnosed that the above said Life Assured was suffering from the above diseases prior to the issuance of the policy. Hence, there is no deficiency of service in repudiating the claim of the complainant and therefore prays to dismissal of the complaint.
5. The OP filed affidavit and produced documents and marked as Ex.R1 to R4. Further, the OP summoned M.V.diabetes clinic Royapuram, Chennai for production of the case sheet with respect of the Fayaz Ahmed who is the husband of the complainant.
6. Heard the arguments:
7. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is deficiency in service on the part of OP?
2. What Order?
8. Our findings on the above points are as follows:-
- Point No.1: Negative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT Nos. 1 & 2:
9. The complainant had filed this complaint alleging deficiency in service on the part of OP in not settling the claim towards death of her husband, for which this Forum admitted the case and issued notice against OP to appear before this Forum to answer the allegations made by complainant. But the OP not appeared before this Forum and placed Ex-parte. Subsequently, the complainant filed affidavit and marked the documents. This Forum heard the arguments and passed an order dated:03.08.2010 in favour of the complainant and directed the OP to pay the assured amount along with compensation. Accordingly the OP had deposited the said amount before this Forum in Execution application filed by complainant. Thereafter the OP preferred an appeal against the said order. The said amount deposited by the OP withdrawn by the complainant by filing voucher after disposal of the appeal.
10. Subsequently, the OP restored the appeal before the Hon’ble State Commission and obtained an order in appeal No.4250/2010. In which the Hon’ble State Commission had remanded back the complaint and directed this Forum to proceed an afresh trial with respect to subject matter of the complaint. Accordingly we issued noticed to both parties, but the OP only appeared before this Forum and complainant in spite of issuance of the summons under substituted service not appeared before this Forum. Subsequently, the OP filed fresh version and affidavit with documents which are marked as Ex.R1 to R4 and also summoned some medical documents from M.V.diabetes Clinic, Royapuram, Chennai in support of their defense.
11. The complainant after remand had not appeared before this Forum to establish her case. In the absence of any fresh evidence and document we consider that the complainant had filed to establish her case after remand. Hence, the complaint is liable to be dismissed.
12. Apart from that the OP had produced proposal forum and medical documents in support of their case to establish that the husband of the complainant had pre-existing diseases such as diabetes mellitus and blood pressured who took the treatment before taking the policy. As such the complaint is liable to be dismissed.
13. Further, after disposal of the appeal No.4250/2010 on 08.02.2011 before the Hon’ble State Commission, the complainant had filed voucher to withdraw the amount deposited by the OP. Accordingly, this Forum has issued the said amount to complainant after expiry of appeal time. Subsequently the OP restored the appeal and the Hon’ble State Commission has remanded the complaint and directed to dispose the case afresh in accordance with law. Now the complaint is dismissed. Hence, the complainant is under liability to pay the withdrawn amount to the OP. As such with this direction the complaint is dismissed and accordingly we proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is hereby dismissed. No order as to costs.
- The complainant is directed to pay Rs.1,10,219/- to OP within one month from the date of receipt/knowledge of this order.
- Send free copies of this order to both the parties through R.P.A.D.
(Dictated to the Stenographer transcribed typed by him, transcript corrected by me and then pronounced in Open Court on this the 8th day of December 2016).
(RAVISHANKAR)
President
(B.U.GEETHA) (H. MANJULA)
Member Member
ANNEXURES
Documents produced on behalf of the complainant:
NIL
Documents produced on behalf of the OPs:
Ex. R1 to R3 - Medical report and prescription of different dates
Ex.R4 - Policy bond issued by OP.
Dated:08.12.2016 President
District Consumer Forum,
Chikmagalur.
Tss
