IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 253/08 DATED 02-12-2008<br /> ORDER<br /> <br /> Complainants 1. Channaveera Swamy,<br /> S/o Late Rudrappa<br /> 2. Smt.Deveeramma @ Devamma, W/o Channaveeraswamy, Both are R/at D.No.92, (New No.65), Manandavadi Road, Srirampura Village and Post, Kasaba Hobli, Mysore-570008.<br /> (By Sri.Ramaraveendra.R, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. The Senior Divisional Manager, LIC of India, Divisional Office, Jeevan Prakash, P.B.No.37, Mysore-Bangalore Road, Bannimantap, Mysore City.<br /> 2. The Senior Branch Manager, LIC of India, P.B.No.15, Bandhi Gowda Layout, M.C.Road, Mandya-571401.<br /> (By Sri.K.R.Shivashankar, Advocate)<br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 21.08.2008<br /> Date of appearance of O.P. : 15.09.2008<br /> Date of order : 02.12.2008<br /> Duration of Proceeding : 2 ½ MONTHS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainants who have come up with this complaint against the opposite parties, in brief, is that their son C.Ravichandra had taken an insurance policy on his life for Rs.1,00,000/- from the opposite parties and he died on 12.10.2006. That the first complainant is the nominee under the policy and the second complainant is the mother of the insured. The first complainant approached the second opposite party for settlement of the insurance claim, for which the first opposite party wrote a letter on 17.01.2008 stating that the first complainant has relinquished of his claim under the policy, but that contention is false and illegal and therefore have stated they got issued a legal notice on 26.07.2008 and thus have prayed for payment of the insurance amount with interest and damages all amounting to Rs.1,81,500/-.<br /> 2. The first opposite party who has entered appearance through his advocate has filed version for himself and on behalf of the second opposite party admitting the issue of policy in the name of C.Ravichandra w.e.f. 09.09.2005 for Rs.1,00,000/-. The opposite parties have also not denied the death of the insured, but have contended that the death has occurred within a short period of one year one month three days and have stated that the insured prior to the issue of policy was suffering from Bone Cancer and undergone treatment in several hospitals prior to the issue of policy, and after the issue of policy till his death. The insured, therefore had suppressed his illness and obtained policy by furnishing false information about the condition of his health on the proposal form and therefore they have repudiated the claim of the complainants on that ground, besides contending that the first complainant has relinquished his rights in their favour and therefore have prayed for dismissal of the complaint.<br /> 3. In the course of enquiry into the complaint, the first complainant and the Administrative Officer of the opposite parties have filed their affidavit evidence reiterating what they have stated in their respective complaint and version. The counsel for the complainants has subjected the Administrative Officer of the opposite parties for cross-examination, examined one Dr.Anil Thomas and that opposite parties have subjected one Dr.C.V.Madhu of Sitaranga Nursing Home for cross-examination. The complainants have produced a Xerox copy of the policy, death certificate of the insured, copy of the repudiation letter issued by the opposite parties and copies of the legal notice they got issued to the opposite parties. The opposite parties have produced the original proposal form, insurance certificate, claim statement and medical records of Prakash Diagnostic Laboratory, Kannaan Diagnostic Centre, Sri Vinayaka Diagnostic Centre, Medical records of Vikram Hospital, Sitaranga Nursing Home, and Kidway Memorial Institute of Oncology with a medical certificate of Sharada Nurshing Home, declaration alleged to have been executed by the first complainant and certificate of Dr.Anil Thomas. Heard the counsel for both the parties. The counsel for the complainant has also filed his written arguments, perused the records.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the opposite parties prove that the insured has suppressed about the condition of his health in the proposal form stating that he was not suffering from any disease?<br /> 2. Whether they further prove that the insured was suffering from Bone Cancer prior to inception of the policy, therefore they are justified in repudiating the claim of the complainants?<br /> 3. To what relief, the complainants are entitled to?<br /> 5. Our findings are as under:-<br /> Point no.1 : In the affirmative.<br /> Point no.2 : In the affirmative.<br /> Point no.3 : See the final order.<br /> <br /> <br /> <br /> REASONS<br /> <br /> 6. Points no. 1 and 2:- The fact that the deceased C.Ravichandra son of these complainants had taken a life insurance policy on his life for Rs.1,00,000/- w.e.f. 09.09.2005 and that the insured died on 12.10.2006 due to Bone Cancer are not in dispute. But, the opposite parties contended as if the insured was suffering from the disease even prior to the submission of the proposal form and that the insured by suppressing the said fact given the proposal form and they by acting on that have issued a policy and have contended that the insurance being a contract entered into in good faith, the insured has mislead them and therefore have justified their action in repudiating the claim. The complainants in the affidavit evidence filed by them have not controverted the contention of the opposite parties with regard to the ill-health of the deceased prior to the inception of the policy and regarding suppression of the condition of the health of the insured.<br /> 7. The opposite parties besides filing an affidavit in this regard have produced medical records of Prakash Diagnostic Laboratory dated 03.04.2005. It is clear that, on that day the insured was having some health problem particularly fever, therefore in order to find out the cause for it got several tests done by doing including W.B.C., D.C., Widal. In that laboratory widal test proved negative that means the insured as on that day shown to had no typhoid fever, but he had fever as on that day cannot be ruled out. As evident from the proposal form produced by the opposite parties, Col.11 (a) refers to, in the insured having had consulted a medical practitioner for any ailment requiring treatment for more than a week, for which the insured answered as “No”. The insured on 12.03.2005 underwent x-ray of Lumbar Spine there the clinical study shown normal. The insured again on 12.09.2005 was subjected to several tests in Sri Vinayaka Diagnostic Centre and in the report following observation is made which is very much material. “A mixed echoic tender mass measuring 100 x 65 x 77 mm (vol 260 cc) is seen in the rt.iliac fossa. Normal appea;ring appendix is not seen. No fluid collection seen around the mass. Impression is shown as apendicular mass”. The opposite parties have also produced medical records of Sitaranga Nurshing Home, Mysore wherein the insured got himself admitted on 13.09.2005 and discharged on 14.09.2005 for further evaluation with the complaint of pain in the right thigh, face and left thigh with fever. Thereafter, the insured on 19.09.2005 got himself subjected to MRI with some other tests and the test report revealed partial destruction of soft tissue replacement is seen involving the right iliac bone with abnormal signal intensity appearing hypointense on T1 and also on T2 and also observed soft tissue mass extended superiorly measuring around 11 x 10 x 8 cm. The impression of this test is given as destruction, abnormal signal intensity involving the right iliac bone with soft tissue mass and extensions as described and found malignant round cell tumour. Further the insured found to had been under treatment in Sharada Nursing Home, Mysore from 14.09.2005 to 19.09.2005 wherein the doctor who attended him in that Nurshing Home has issued a medical certificate on 20.12.2006 certifying that the insured who had soft tissue mass arising from right iliac bone was referred to Kidway Institute of Oncology for further management. Then the insured was taken to Kidway Memorial Institute of Oncology on 26.09.2005 and was an inpatient there till 29.09.2005 and it is found that the insured was in the advance stage of Bone Cancer. The opposite parties have also produced a certificate of Dr.Anil Thomas, a Surgical Oncologist who had examined the insured and diagnosed as having soft tissue sarcoma of iliac and gave chemotherapy on 15.10.2005, 05.11.2005, 26.11.2005 and 17.12.2005. The opposite parties have also examined Dr.Anil Thomas who issued the certificate in his evidence has stated that the insured was suffering from cancer and when the patient came to him he was in the last stage that is stage 4, but stated it is difficult for him to say exactly since when the insured was suffering from cancer. This witness in the cross-examination by the counsel for the complainant admitted that spinal x-ray report dated 12.03.2005 shown normal parameters. But, it is not clear whether the insured was tested for cancer detection. The opposite parties have also examined one Dr.C.P.Madhu who treated the insured in Sitaranga Nurshing Home has stated that on 13.09.2005 he had treated the insured who had gone to him with a complaint of abdominal pain and pain in the left thigh and was getting fever in a gap of one week. Here, we should note down the history said to have been given by the insured on 13.09.2005 stating that he was having pain and fever since about a week prior to 13.09.2005. In this regard, it is relevant to recollect and refer to the blood test got done at Prakash Diagnostic Laboratory on 31.04.2005 wherein even as on that day, the insured since was having fever got widal test done to know whether the fever with which he was suffering from was typhoid. The evidence of these witnesses and medical records that the opposite parties have produced and referred to above by us are neither disputed nor controverted by the complainants. Hence, it is manifest that the insured who on 31.04.2005 felt some problem in his health with fever started getting test done at several hospitals and finally it was diagnosed as cancer on 12.09.2005 just two days prior to the policy date and finally he died on 12.10.2006. Therefore, when the insured gave a proposal for taking an insurance policy on his life cannot be held to had no knowledge of his ill health and requiring hospitalization. The insured shown to had given the proposal for issue of a policy on 07.09.2005 by filling up the proposal form indicating as if he had no health problems and he did not consult any medical practitioner for any ailment requiring treatment for more than a week.<br /> 8. No doubt as per the medical records, the insured was not knowing the nature of ailment he was suffering with, as on that date of policy dated 09.09.2005. But, after 2 or 3 days after issue of the policy, he was diagnosed has suffering from cancer, but that diagnosis on 12.09.2005 is in the continuous process of tests and diagnosis made from the period prior to the issue of policy. Therefore, on perusal of all these materials, which are remained unrebutted, we can conveniently held say that the insured had. by suppressing the condition of his health took the policy and thus the policy that was issued on the life of the deceased can be held as voidable. The opposite parties therefore basing on these materials have repudiated the claim on the ground of suppression of material facts, which cannot be termed as deficient.<br /> 9. The learned counsel appearing for the complainants argued and also narrated in his written arguments that the deceased had no knowledge of the nature of ailment and that cancer came to be diagnosed at later stage after issuance of the policy and submitted that the opposite parties could not have repudiated the claim and in support of his contention, relied upon a decision reported in AIR 2001 Supreme Court page 549. The Hon’ble Supreme Court in this decision has been pleased to hold, merely on grounds that deceased had withheld correct information regarding his health at the time of effecting insurance with corporation and held that matter of repudiation of policy should not be dealt in a mechanical and routine manner, but should be one of extreme care and caution and further observed that the policy holder must have known at the time of making the statement that it was false or that he suppressed facts, which it was material to disclose. The facts of this case on hand are where the insured in the proposal form negitived all the questions touching the condition of his health, which in our view is nothing but suppressing of material facts.<br /> 10. The opposite parties have in their version have further contended that the first complainant who is a nominee for the insurance has executed a declaration in their favour extinguishing and waving his claim over the insurance policy held by the deceased and therefore have contended that they are not liable to pay the insurance amount. The opposite parties relied upon the declaration said to have been executed by the first complainant before the notary on 28.10.2006. The first complainant is an illiterate person, it is not made clear why and under what circumstances the situation arose for taking such a declaration from the first complainant giving up his right to claim insurance amount. Even assuming that he had so given the declaration but when the complainant denies it or tell before us that it is not given by him then that will not precluded the first complainant from claiming the legitimate insurance claim. The first complainant has denied giving such a declaration, therefore the opposite parties should have proved the same, but have not proved. The opposite parties in our view ought not to have taken such a stand like other business companies to deny the claim of an insured or the nominee or the heirs by resorting to such a methods and defenses. However, we have held that the insured prior to the inception of the policy was suffering from ailment, but suppressed the same in the proposal form and that insurance is being a contract of the good faith gets vitiated. The ailment of the deceased on the basis of the materials placed before us could be traced to the period prior to the inception of the policy. Thus, the repudiation of the claim of the complainants by the opposite parties do not amounts to deficiency in their service and therefore we answer point no.1 and 2 in the affirmative and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 2nd December 2008)<br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />