By Sri. Chandran Alachery, Member:

The complaint is filed under section 12 of the Consumer Protection Act for an order directing the Opposite Parties to pay entire benefits as per the terms of policy No.4000109627 and 4000338555 and in the event if the Forum finds that the Complainant is not entitled to get the entire benefits under the above policies, direct the Opposite parties to return the premium amounts collected from the said Shaly Joseph amounting to Rs.3,00,000/- together with interest at 18% per annum from the date of receipt of the amount till the date of realisation, to pay Rs.15,000/- as compensation and Rs.1,000/- as cost of the proceedings.

2. Complaint in brief:- The wife of complainant Late Shaly Jason had taken two Family Mediclaim Insurance Policy by name IDBI Fortis Life from the 2^nd Opposite party's office. The 1^st Policy IDBI Fortis Life was taken on 11.07.2009 and 2^nd policy on 01.08.2011. All entries in both proposal forms are filled up by the agent and nothing was asked to the said Shaly Jason. The premium amount is paid from the account of the Complainant maintained at 2^nd Opposite Party bank. Subsequently during the end of 2011, the said Shaly Jason developed cancer and died on 08.06.2012. It is informed to 1^st Opposite party and the Complainant has submitted all the documents as requested by the Opposite party wide letter dated 16.08.2012. And later, submitted claim form for the claim amount in two policies. Thereafter, the complainant made several enquiries directly and through telephone. Then the 1^st Opposite party send a letter to the complainant dated 09.11.2012 repudiating the claim on the ground that the deceased had not disclosed entire material facts concerning her previous medical history. The letter states that the histopathology report from Sabha Hospital Kuwait dated 29.07.2007, it is evident that Late Mrs. Jason was diagnosed with pleura- malignant mesothelioma. The Complainant's wife never concealed any material facts in the proposal form. The repudiation of claim is a deficiency of service from the part of Opposite parties. Aggrieved by this, the complaint is filed.

3. On receipt of complaint, notice issued to Opposite Parties and Opposite parties appeared before the Forum and filed version. In the version of 1^st Opposite party, it is stated that the complainant not disclosed the earlier treatment history in the proposal form. The proposal is a contract of aberrima fide. The Complainant is liable to follow the terms and conditions in the policy. The policy is issued relying upon the information provided in it. The life assured had understood fully the terms and conditions in proposal form and signed in it.  The deceased life assured had taken treatment at Sabha Hospital Kuwait in July 2007 for cancer. Accordingly to the Histopathology report from Sabha Hospital dated 29.07.2007, diagnosis is mentioned as pleura Malignant mesotheliomia. In the same report, the exam type is mentioned as 'cancer type'. The life assured was aware about the medical conditions at the time of issuance of the policy in 2009 and 2011. But with malafide intention, the life assured did not disclose the said facts to the 1^st Opposite party at the time of submitting proposal form. The life assured and the Complainant had deliberately suppressed the past history of life assured. There is no negligence or deficiency of service from the part of 1^st Opposite party. In the version of 2^nd Opposite party, 2^nd Opposite party contended that 2^nd Opposite party is an unnecessary party in the proceedings. The 1^st Opposite party had a corporate entity by itself. 2^nd Opposite Party only introduced the Complainant to the 1^st Opposite party. 2^nd Opposite Party is not liable for any relief.

4. On perusal of complaint, version and documents, the Forum raised the following points for considerations.

1. Whether there is deficiency of service from the part of Opposite party?

2. Relief and cost.

5. Point No.1:- The Complainant filed proof affidavit and is examined as PW1 and documents are marked as Exts.A1 to A3. Confronted documents are marked as Exts.B1 to B10. Policy and proposal form marked as Ext.X1. Opposite party No.1 filed proof affidavit and 1^st Opposite Party is examined as OPW1 and Ext.B1 is marked. 2^nd Opposite Party not adduced any oral evidence. On perusal of the two policies taken by the Complainant from the 1^st Opposite party, the Forum found that both policies are unit linked policies joined for the purpose of Investment, life coverage and illness benefit. The Complainant's wife paid a total sum of Rs.3,00,000/- in two policies. Subsequently during the end of 2011 the said Laly developed cancer and died on 08.06.2012. The Complainant now claims the entire benefits under the policy including death benefit. The case of Opposite party is that the Complainant suppressed material facts like previous treatment history and health condition in the proposal form and there is violation of policy conditions. The proposal form is a contract of uberime fadie. The 1^st Opposite Party contended that at the stage of issuance policies in 2009 and 2011, the deceased life assured was aware about the medical conditions as on the commencement of life cover. But the life assured did not disclose the said facts to the 1^st Opposite party. The life assured died within just 9 months of commencement of the 2^nd policy. The reason for death was cardio vascular failure associated with mesothelioma. The life assured got treatments from Baby Memorial Hospital, Calicut and Vinayaka Hospital, Sulthan Bathery where in the cause of death is mentioned as mesothelioma. The deceased life assured had taken treatment at sabha Hospital Kuwaith in July 2007 for cancer. According to the Histopathology report from Sabha Hospital dated 29.07.2007, diagnosis is mentioned as pleura malignant mesothelioma. In the same report , the exam type is mentioned as “cancer type”. It is stated in Ext.B1 documents. The life assured was admitted in Baby memorial Hospital in February 2012. According to the Complainant, the Complainant only got an examination at Sabha Hospital and nothing was found out as cancer in the year 2007. The Complainant was again got a detailed checkup and examination at Christian Medical College Vellore, Thamilnadu. In the report from Vellore Medical College, it is stated that few focal areas of mild left pleural thickening. Compared to the previous scanned in CT (date not clear), the large left pleural effusion has now resolved with minimal residual pleural thickening. In the result, it is adviced that active pulmonary medication warranted. So the Complainant says  that from the report of these two hospitals, no symptom of cancer is diagnosed and there is no need of disclosing all these aspects in the proposal form filled in the year 2007. On perusal of records, the forum found that the cause of death of the life assured is due to right heart failure. The Forum found that even if the life assured had taken the 1^st policy after 2 years of first check up at Sabha Hospital, the life assured should have shown this fact in the proposal form. Non-disclosure of these check up and examination in the proposal form is a clear suppression of material fact. It is pertinent to note that the life assured had died after few months from taking 2^nd policy. Therefore, the Forum is of the opinion that non disclousre of previous medical history is a suppression of material fact and thus the complainant is not entitled to get the full benefits under the Policy. But the Complainant is entitled to get only the deposited premium amounts at its present fund value since it is a unit linked policy. The complainant is entitled to get the present fund value of the two policies on the deposited premium amounts. Non-disbursing of the fund value in both the policy by the 1^st Opposite Party on getting claim form is a deficiency of service from the part of 1^st Opposite party. Point No.1 is found accordingly.

6. Point No.2:- Since point No1 is found in favour of Complainant, the complainant is entitled to get cost and compensation.

In the result, the complaint is partly allowed and the 1^st Opposite party is directed to pay the present fund value of the deposited premium in both the policies wide No.4000109625 dated 11.07.2009 and No.4000338555 dated 20.07.2009 as on the date of this order. The 1^st Opposite party is also directed to pay Rs.10,000/- (Rupees Ten thousand) only as compensation and Rs.1,000/- (Rupees One thousand) only as cost of the proceedings. The 1^st Opposite party shall comply the order within 30 days from the date of receipt of this order failing which the complainant is entitled to get 12% interest for the fund value calculated.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Forum on this the 13^th day of October 2015.

Date of Filing:26.05.2014

PRESIDENT :Sd/-

MEMBER :Sd/-

/True Copy/

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. Jaison Complainant.

Witness for the Opposite Parties:

OPW1. Sony George. Deputy Vice President, Legal

IDBI Federal Life Insurance Company Ltd.

Exhibits for the complainant:

A1. Copy of Letter. dt:09.11.2012.

A2. Copy of Report.

A3 (8 Pages) Copy of Medical Report.

Exhibits for the opposite Parties.

B1. Copy of Histopathology report.

B2. Copy of Proposal Form.

B3. Copy of Letter. dt:29.07.2009.

B4. Copy of Proposal Form.

(Contd.... 7)

- 7 -

B5. Copy of Letter. dt:13.09.2011.

B6. Copy of Death Benefit Claim Form.

B7. Copy of Condolence Letter. dt:16.08.2012.

B8. Copy of Investigation Report.

B9. Copy of Letter. dt:09.11.2012.

B10. Copy of Physician's Statement.

X1. Policy and Proposal Form.