BEFORE THE DISTRICT CONSUMER FORUM :: WARANGAL
Present : Sri D. Chiranjeevi Babu,
President.
And
Patel Praveen Kumar,
Member.
Wednesday, the 21stday of June, 2011.
CONSUMER COMPLAINT No.09/2009
Between:
1) K.Malleshwari, W/o late Raghupathi,
Age: 33 yrs, Occ: Housewife
2) K.Jhansi, D/o late Raghupathi,
Age: Minor, Occ: Student.
3) K.Vasantha, D/o late Raghupathi,
Age: Minor, Occ: Student.
Complainants 2 and 3 being minors, rep. by
their next friend and natural mother i.e.,
Complainant No.1 K.Malleshwari,
All are R/o H.No.1-22, Godavari Road,
Kamalapuram Post, Mangapet Mandal,
Warangal District.
… Complainants
And
1) The Life Insurance Corporation of India,
Rep. by its Branch Manager,
Warangal Branch No.0068,
Opp: MGM Hospital, Warangal.
2) The Life Insurance Corporation of India,
Rep. by its Senior Divisional Manager,
Divisional Office, P.B.No.174,
Jeevan Prakash, Balasamudram,
Hanamkonda Warangal District. … Opposite Parties
Counsel for the Complainants :: Sri G.Rajendra Prasad, Advocate.
Counsel for the Opposite Party :: Sri K.S.Raju, Advocate.
This complaint is coming for final hearing before this Forum, the Forum pronounced the following order.
CC 9/2009 -- 2 --
ORDER
Sri D. Chiranjeevi Babu, President.
This complaint is filed by the complainants K.Malleshwari and her children against the opposite parties under section 12 of Consumer Protection Act, 1986 for a direction to pay a sum of Rs.9,55,100/- (Amended as per orders in IA 89/2010 dt.21-07-2010 under the policies bearing NO.686899350, 682159967, 686899647, 686900582 and 686899670 with future interest @24% p.a. from the date of filing of the case to its full realization from the opposite parties and to pay Rs.50,000/- towards damages and costs.
The brief averments contained in the complaint filed by the complainants is as follows:
The case of the complainants is that the complainant No.1 is the wife, complainants 2 and 3 are minor children of late Raghupathi who died on 19-05-2005. During his life time the deceased Raghupathi obtained five policies bearing NOs. 686899350 for Rs.80,000/-, 682159967 for Rs.50,000/-, 686899647 for Rs.50,000/-, 686900582 for Rs.50,000/-, and 686899670 for Rs.1,00,000/- from opposite parties and paid the premiums regularly till his death, for which the complainant No.1 is the nominee for all the above said policies. After the death of the deceased the complainant No.1 submitted claim forms duly filled in all respects along with original policies to opposite party No.1 and requested to settle the claims and the opposite party No.1 assured to settle the same soon, but failed to settle the same. The complainant No.1 got issued legal notice to opposite parties No.1 on 22-08-2008, for which the opposite party No.2 replied on 06-09-2008 and sent the copies of repudiation letters to the counsel for complainants. The repudiation letters were not received by the complainants previously. The act of opposite parties amounts to deficiency of service. Hence, filed this complaint praying to direct the opposite parties to pay Rs.9,55,100/- under the above said policies, damages of Rs.50,000/- and costs.
The opposite parties filed the Written Version stating that it is true the deceased K.Raghupathi had taken five policies from the opposite parties. As per the intimation given by the complainant that the life assured died on 19-05-2005 as the death occurred within five months of taking all the aforesaid policies treating the said claims as VERY EARLY as per rules the opposite parties conducted investigation. During the said investigation it came to light that the deceased life assured had suppressed the material fact
CC 9/2009 -- 3 --
of his ill-health pertaining to TUBERCULOSIS (TB) for which he was diagnosed and suffering from the said disease since 13-03-2004. As per the Clinical Report dt.13-03-2004 of Laxmi Clinical Laboratory, Hanamkonda the Sputum for AFB of the deceased life assured was tested positive and the X-Ray film dt.13-03-2004 of the deceased life assured further provides the corroborative evidence that was diagnosed as suffering from TB.
Further stated that the deceased had intentionally taken all the aforesaid 5 policies in quick succession (within a short span of 3 months) from 3 different agents, concealing the pre-proposal illness related to TB. The deceased intentionally suppressed the material fact of his ill-health related to TB thereby contravened the principle of UTMOST GOOD FAITH and requested this Forum to dismiss this case.
The complainants in support of their claim, filed the Affidavit of complainant NO.1 in the form of chief examination and also marked Exs.A-1 to A-18. On behalf of opposite parties Sri V.Bhaskar filed his Affidavit in the form of chief examination and also marked Exs.B-1 to B-10.
Now the point for consideration is:
1) Whether there is any deficiency of service on the part of the opposite parties?
2) If so, to what Relief?
Point No.1:-
After arguments of both side counsels this Forum has to settle whether there is any suppression of material facts by the deceased or not?
After gone through the Affidavits and documents filed by both the parties we come to the conclusion that there is suppression of material facts by the deceased. At the time of taking policy he has not mentioned his previous disease TB in his proposal forms. The main argument of opposite parties counsel is that prior to taking of 5 policies the deceased was having TB disease. To prove that the opposite parties filed Ex.B-9 and Ex.B-10. These clearly goes to show that the deceased was having TB prior to taking 5 policies through different agents within a span of 4 months. The deceased Raghupathi obtained five policies bearing NOs. 686899350 for Rs.80,000/-, 682159967 for Rs.50,000/-, 686899647 for Rs.50,000/-, 686900582 for Rs.50,000/-, and 686899670 for Rs.1,00,000/- from opposite parties. From
CC 9/2009 -- 4 --
2 to 5 policies are obtained by the deceased in the month of January, 2005 and the first policy was obtained by the deceased in the month of May, 2005.
We verified the documents and Ex.B-9 dated 13-03-2004, this document shows that the tests were conducted “SPUTUM FOR AFB = +VE POSITIVE BLOOD FOR ESR 1ST HOUR 80 MM. This shows that he was suffering from TB, Ex.B-10 – X-Ray also filed. Since 13-03-2004 the deceased was suffering from TB with regard to the report dt.13-03-2004 of Laxmi Clinic Laboratory Hanammonda. The deceased life assured was tested positive and the and X Ray dt.13-03-2004 of the deceased life assured further provides the corroborative evidence that he was diagnosed as suffering from TB. When the deceased life assured was suffering from TB certainly it comes under suppression of material facts. The deceased has not mentioned his disease TB in column NO.11 (e) in his proposal forms i.e, Ex.B-2, B-4, B-6 and B-8. Simply he has mentioned his health condition is good. He suppressed his disease by way of not saying that he was having TB at the time of taking policy. Attacking of TB is prior to 13-03-2004, but the deceased obtained policies for policies 2 to 5 are in the month of January, 2005 and the policy No.1 was obtained in the month of May, 2005. Even though the deceased knows fully that he was having TB on the basis of Ex.B-9 and Ex.B-10 he has suppressed the material facts by way of not mentioning his disease in the proposal forms. When the deceased has suppressed the material facts certainly it comes under suppression of material facts and section 45 of Insurance Act is applicable.
Further the complainant stated that he has not suppressed the material facts. For this our answer is that on the basis of Ex.B-9 and B-10 it is clear that he has suppressed his disease TB and taken(5) policies. So it comes under suppression of material facts.
The opposite parties cited a citation in
AIR 1971 ANDHRA PRADESH 41
LIC of India South Zone, Madras and another …Appellant
And
Bhogadi Chandravathamma … Respondent.
Insurance Act (1938) Section 45 – Contracts of insurance are uberrimae fides – conditions for application of second part of section stated.
CC 9/2009 -- 5 --
The contract of insurance are uberrimae fidei and therefore the insured has to make a complete and true disclosure of all the facts known to him relating to his health. The insurer can avoid a contract only if three conditions are satisfied i.e, (1) the statement must be on a material matter or must suppress facts which it was material to disclose (2) the suppression must be fraudulently made by the policyholder and (3) the policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.
This judgment is applicable to the case of opposite parties. In the present case also the deceased suppressed his disease TB in his proposal forms.
For suppression of material facts the counsel for the opposite parties cited an Apex court citation in (2008) I Supreme Court Cases 321
PC Chacko and another … Appellants
Vs
Chairman, LIC of India and Others … Respodents
Insurance Act, 1938 – S.45 – Repudiation of claim under insurance policy on ground of misstatement – Held, misstatement by itself not reason for recission of the policy unless the same is material in nature – However, a deliberate wrong answer given by insured having a great bearing on contract of insurance may lead to policy being vitiated in law – Policy can be repudiated if obtained with a fraudulent act.
The above citation is applicable to the case of opposite parties because in the present case also the deceased suppressed his disease T.B. and obtained five policies. So it comes under suppression of material facts, so section 45 of Insurance Act is applicable to this case.
The evidence of PW-2 i.e, Dr.Phani Bhushan recorded by the Advocate Commissioner is not at all helpful to the case of complainant because it simply goes to show that it is fitness certificate issued for employment. He also clearly stated in his cross examination that the certificate issued by me is exclusive for the purpose of employment. So the evidence of PW-2 is not helpful to the case of complainant.
CC 9/2009 -- 6 --
For the foregoing reasons given by us we come to the conclusion that the deceased suppressed the material facts that he was having TB and obtained policies, so Section 45 of Insurance Act is applicable. So when the decease suppressed the material facts, the nominee of the deceased is not entitled to get anything and we answered this point accordingly in favour of the opposite parties.
Point NO.2: To what Relief:- The first point is decided in favor of the opposite parties against the complainant this point is also decided in favour of the opposite parties against the complainant.
In the result this complaint is dismissed without costs.
Dictated to the Stenographer, transcribed by her, corrected and pronounced by us in the open Forum today, the 21st June, 2011).
President Male Member
District Consumer Forum, Warangal.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
On behalf of Complainants On behalf of Opposite Parties
Affidavit of complainant NO.1 filed. Affidavit of opposite parties filed.
Deposition of PW-2.
EXHIBITS MARKED
ON BEHALF OF COMPLAINANTS
1. Ex.A-1 is the Medical Report of K.Raghupathi issued by Dr. Phani Bhushan.
2. Ex.A-2 to A-5 are the Policies of the deceased K.Raghupathi.
3. Ex.A-6 is the office copy of legal notice issued to opposite party No.1,
dt.22-08-2008.
4. Ex.A-7 to A-10 are the Status Reports of the policies of the deceased K.Raghupathi.
5. Ex.A-11 is the letter from opposite party No.2 to counsel for complainants, dt.06-09-2008.
6. Ex.A-12 is the Repudiation letter from opposite party NO.2 to complainant NO.1, dt.31-03-2007 for Policy NO.682159967.
7. Ex.A-13 is the letter from opposite party No.2 to LIC Agent R.Sadanandam, dt.31-03-2007.
8. Ex.A-14 and A- 15 are the Repudiation letters from opposite party NO.2 to complainant NO.1, dt.31-03-2007 for Policy Nos.686900582 and 686899350.
9. Ex.A-16 is the salary certificate of the deceased K.Raghupathi.
10. Ex.A-17 is the Appointment letter issued by A.P.Rayons, Kamalapuram, Warangal District.
11. Ex.A-18 is the Repudiation letter from opposite party NO.2 to complainant NO.1, dt.31-03-2007 for Policy NO.682159967.
CC 9/2009 -- 7 --
ON BEHALF OF OPPOSITE PARTIES
1. Ex.B-1 is the Policy Bond of the deceased Raghupathi for Policy No.686900582.
2. Ex.B-2 is the proposal for insurance.
3. Ex.B-3 is the Policy Bond of the deceased Raghupathi for Policy No.686899350.
4. Ex.B-4 is the proposal for the insurance.
5. Ex.B-5 is the Policy Bond of the deceased Raghupathi for Policy No.686899647.
6. Ex.B-6 is the proposal for insurance.
7. Ex.B-7 is the Policy Bond of the deceased Raghupathi for Policy No.682159967.
8. Ex.B-8 is the proposal for the insurance.
9. Ex.B-9 is the urine examination report of the deceased Raghupathi issued by Laxmi Clinical Laboratory dt.13-03-2004.
10. Ex.B-10 is the X-Ray of the deceased Raghupathi.
PRESIDENT
