Karnataka

Bidar

CC/80/2013

Ashwath Reddy S/o Mallikarjun - Complainant(s)

Versus

LIC - Opp.Party(s)

VIJAY KUMAR

31 Aug 2016

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::

 

 

                                                                                                       C.C.No.80/2013.

 

                                                                                        Date of filing : 06/12/2013.

 

                                                                                         Date of disposal : 31/08/2016.

 

 

P R E S E N T:-              (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.

                                                                                                       President.

    

                                         (2) Shri. Shankrappa (Halipurgi),

                                                                      B.A.LL.B.

                                                                                  Member.

 

                                   

 

                                               

COMPLAINANT/S:        Ashwath Reddy S/o Mallikarjun Gotur

        Age:42 Years, Occ: Agriculture,

                                           R/o Belkera,

        Tq: Humnabad, Dist: Bidar.

              

 

 

                                

       (By Sri. Vijayakumar., Advocate )

 

 

                                                      VERSUS

 

OPPONENT/S   :-       1.   The Chief Manger of L.I.C.

        of India Branch Basavakalyan.

 

  2.    The Senior Divisional  Manager,

         L and H.P.F Department

         Divisional Office Raichur.

 

  3.    The zonal Manager L.I.C.

         of India South Central Zonal  

         Office Saifabad, Hyderabad-500063.

 

  4.    The chairman of L.I.C.

         of India Yogaksheme Jeevan

         Bheema Marg P.B.No.1995,Mumbai.

 

  5.    Sri. Shivakumar S/o Sharanappa Patil

         L.I.C. Branch Basavakalyan

         R/o Belkera Tq. Humnabad.

           

 

 

                  ( By R1 to R4, Sri. Sanjay patil. R5. Shivakumar, in person)                               

 

 

 

::   J UD G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

              The present complaint filed u/s 12 of the C.P. Act, is by a widower by name Ashwath Reddy, resident of village Belkera, Tq. Humnabad Dist. Bidar, alleging deficiency of services in the part of the opponents.  The sum total of the complaint is as follows:-

 

2.          That, the late wife of the complainant, byname Laxmi had obtained a Jeevan Anand Policy bearing No.665269721, date of commencement- 31.01.2011 from the Branch office of the opponents at Basavakalyan, Dist Bidar, through agent by name Sri. S.S. Patil (Code No.98666B) in the presence of the Development officer by name T.M. Poojar (Code No.12060).  On 28.01.2011, the annual premium of Rs.6984/- was paid and accepted by the opponents at Basavakalyan Branch of the opponents.  At the time of contracting the policy, deceased Laxmi was hale and healthy, not having any affliction of any fatal disease.  The agent concerned himself filled up the application form in the presence of the Development officer, persuaded to the applicant late Laxmi not to disclose about her pregnancy, never deliberated that, pregnant women are debarred from obtaining  policy and closed the policy to earn a commission. (The agents such deliberation is not corroborated by any cogent proof).

 

3.      That, the complainants wife died on 26.03.2011, due to complications of pregnancy.  The complainant approached the office of O.P.No1 for settlement of claim but both O.P. No.1and 2 have repudiated his claims, for which the present complaint. 

 

4.        The complainant claims the amount of the policy issued in favour his late wife and other claims.

5.     It is seen from the records that, at a later stage, the complainant had choosen to array the agent as opponent No.5 by name Shivakumar S/o S.Patil and he had filed written arguments on 18.08.2016.  Surprisingly, the agent was not subjected to any cross examination by the complainant, to drive his point.  However, the agent (O.p.No.5) has washed off his hands by the written arguments, albeit admitting the contract of policy.

 

6.    The opponent No.1 to 4, on court notice, have appeared through counsel and have filed their versions, affidavits and written arguments, so also the complainant, reiterating their respective stands.

 

7.        The major point of the objections of the opponents is that, at the time of death, she was five months old pregnant, which ipsofacto proves that, at the time of obtaining the policy, she was at least two months in pregnancy, concealed the fact, falsely mentioned her last menstrual period to be 13.01.2011, thus deceiving the L.I.C. to obtain a policy. We found force in the said submission.  As the matter stands, as on date, the opponents No 1 and 4 have taken shelter of the doctrine “Ubbiramae Fidei” and pray to dismiss the complaint as not due.

 

  8.       The documents produced by the feuding parties are listed at the end of this order.

 

 Considering the divergent contentions of the parties at dispute, the following points arise for our consideration.

 

1. Is the complainant eligible to claim the death benefit of his wife out of the L.I.C. policy mentioned supra?
2. Are the opponents justified to repudiate the claim on account of suppression of facts by the late policy holder?
3. What Orders?

        Our answers to the point (a) is in the negative, point (b) in the affirmative with a rider and point (c) as per the final orders, for the following:-

 

REASONS

            The point (a) and (b) are interwebbed, and we prefer to answer them combinedly.

 

                As the matter stands, the policy was obtained by the late policy holder on 28.01.2011, by paying annual premium to the opponents.  While signing the application form, she has not disclosed the fact of pregnancy to the opponents, which should be about two months old.  Her death occurred on 26.03.2011,   while aborting the five months old female foetus due to pregnancy complications.  Who else other than the married woman can be certain about her conceivement?

 

 

 

        Apropos to the motion of the parties, a court commissioner,  Sri.V.M. Prakash, advocate was appointed and he had examined the OBG specialist Dr. Sarvottam Rao, resident of Gulbarga, working with M. R. Medical College, Gulbarga as Professor.  The doctor concerned had testified that, deceased Laxmi was admitted on 22.03.2011, with complaints of rashes all over the body and toothache.  She had herself stated the etiology to be five months old pregnant.  ON 23.03.2011, she aborted the foetus of female child, still born, and was discharged after two hours in good health.  The witness was subjected to cross examination but no effective point was elucidated.  As per the doctors evidence, she was anaemic and weighing 45 Kgs.  The foetus was weighing 450gms, and was dead.  Later, the policy holder Laxmi, died on 26.03.2011, due to after math of pregnancy complications.

 

        Under the facts and circumstances of the case, the question veers around, as to whether the policy holder had not crossed the Laxman Rekha of “Ubbiramae fidei”- the acceptance of the policy in good faith by the opponents.

 

          To arrieve at a just conclusion we have before us a ratio laid down by the Hon’ble National Commission, reported in 2014(1) CLT-356(NC) in which it has been held as follows:-

 

Point.1     Consumer Protection Act, 1986, Section2(1)(g) and Insurance Act, 1938-repudiation-Pre-existing disease-Held the deceased was suffering from “diabetes mellitus” for which ailment he was on regular medication for over there years It was not possible to even comprehend that the insured would not know that he was suffering from diabetes Undoubtedly, these were “material facts” and being within the knowledge of the insured only, he was obliged to disclose the same correctly having suppressed the said facts while answering the questionnaire, we are of the opinion that the insurance Company was within its rights to repudiate the claim of the Complainant In that view of the matter,  there was no question of any deficiency of service on their part.  [Mrs. Shnyni Valsan Pombally vs. State Bank of India and others, 2014(1) CLT 356(NC)].

 

Point.2     Consumer Protection Act,1986, Section 2(1)(g) and Insurance Act,1938-Repudiation-pre-existing disease-Suppression of “Material fact”- Held-Held-It is a well settled proposition of law that a contract of insurance is based on the principle of utmost good faith- “uberrimae fidei”, applicable to both the parties- The rule of non disclosure of material facts vitiating a policy still holds the field- The bargaining position of the parties in a contact of insurance is unequal- The insured knows all the facts, the insurer is unaware of anything which may be material to the risk-Very often, it is the insured who is the sole person who has this knowledge- The insurer may not even have the means to find out facts which would materially affect the risk- The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which are within his personal knowledge or which he ought to have known had he made reasonable inquiries- A contract of insurance, therefore, can be repudiated for non disclosure of “material facts.”[Mrs. Shnyni Valsan Pombally vs. State Bank of India and others., 2014(1)CLT 356 (NC)].

 

         However, before parting with the consideration of the case we hereby observe that, the insurance companies, and more so the L.I.C. which is a state instrumentality have been over the years, permitted to perpetrate a discrimation against the women in general, denying life insurance coverage to them in case of their pregnancy.  Of late, medical science has made great strides and with proper medical care and supervision, possibility of death due to maternity problems is very remote.

 

        Further, we may observe that, sexual intercourse between a couple or two heterosexual willing partners is a natural, biological urge just like defacation or urination or sneezing or breathing and for that, why should a woman be deprived of her right of obtainment of Insurance Policy being pregnant, while entitled to fulfil her biological instincts.

 

       The constitution of India in Article 14 ordains as follows:-

Equality before law- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

 

          Again vide Article 15 of the constitution mandates as here under:-

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth-

1. The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.
2. No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to-

1. Access to shops, public restaurants, hotels and places of public entertainment ; or
2. The use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of general public.

3. Nothing in this article shall prevent the State from making any special provision for women and children.
4. [Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]
5. [Nothing in this article or in sub-clause (g) of clause (1) of article19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions, whether aided or unaided by the state, other than the minority educational institutions referred to in clause (1) of article 30.]

 

          Considering the intricacies of the case and the constitutional provisions we are of the opinion that, the women in general are being discriminated by the Insurance companies.

 

          We therefore direct that, a copy of this order be transmitted to the Hon’ble Chairperson, Karnataka State Consumer Disputes Redressal commission, Bengaluru, in name cover (not on the judicial side) to ponder over the matter and if deemed proper make a reference to the Hon’ble High Court of Karnataka u/s 113 C.P.C  or to the I.R.D.A. or Human Rights Commission or any other authority as deemed proper, she herself being an eminent jurist.

 

          As far as the conclusion is concerned, we pass the following:-

 

ORDER.

The case is disposed off.

 

 

1. The complaint is dismissed as not due.
2. There would be no cost or compensations under the circumstances of the case.
3. Four weeks time is granted to comply this order. 

 

  (Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 31^st day of August-2016)

 

 

 

              Sd/-                                                                             Sd/-

  Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                             

 

 

                                                     

                                               

 

 

 

 Documents relied upon by the parties, complainant

1. Ex.P.1- Repudiation of Insurance claim with application form.
2. Ex.P.2- Intimation of opponents date.18.05.2013.
3. Ex.P.3- Correspondence of OP with complainant date:20.08.2013.
4. Ex.P.4-Representation before Insurance ombudsman.
5. Ex.P.5-Intimation of Insurance Ombudsman date.13.11.2013.
6. Ex.P.6- State report of policy.
7. Ex.P.7- Identity card of complainant issued by election commission.

 

8. Ex.P.8-Medical investigation reports on late Laxmi by Basaveshwar Teaching and General Hospital (7sheets).
9. Terms and conditions of Jeevan Anand Policy Table149 of L.I.C.

 

Documents produced by the Opponent

                        1

1. Ex.R1- Medical Investigation report on Late Laxmi.
2. Ex.R2-Admission record extract.
3. Ex.R3-O.P.D.Ship.
4. Ex.R4-Medical History of Late Laxmi.
5. Ex.R5- Nurses notes-I.P.No.346402.
6. Ex.R6- Report of O.B.G. Deptt.
7. Ex.R7- Blood Transfusion Notes.
8. Ex.R8 to R18- Other medical investigation records.
9. Ex.R19-Copy of proposal form.

 

 

              Sd/-                                                                             Sd/-

  Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.