BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
FA 369/2010 against C.C 133/2003, Dist. Forum, Khammam.
Between:
Kancharla Aruna Kumari
W/o. Sreenivasa Rao
Age: 39 years,
R/o. Kakarlapalli (V)
Khammam Dist. *** Appellant/
Complainant.
And
1. L.I.C. of India
Rep. by its Divisional Manager
P.B. No. 17, Balasamudram
Hanamkonda.
2. L.I.C. of India
Rep. by its Branch Manager
Wyra Road, Khammam. *** Respondents/
Ops.
Counsel for the Appellants: M/s. K. Mahesh.
Counsel for the Resps: Admission Stage.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
SMT. M. SHREESHA, MEMBER
&
SRI K. SATYANAND, MEMBER
FRIDAY, THIS THE NINETEENTH DAY OF MARCH TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) Having heard the learned counsel for the appellant and having perused the material on record, we are of the opinion that this matter can be disposed of at the stage of admission.
2) Unsuccessful complainant is the appellant.
3) The case of the complainant in brief is that her husband late Srinivasa Rao had taken insurance policy on 31.1.2002 for an amount of Rs. 5 lakhs on his life keeping her as his nominee. While so he died on 2.4.2002 due to jaundice. When she requested to settle the claim by surrendering the policy bond they repudiated the claim on the ground that he suppressed the material fact in regard to his health condition. Thereupon she got issued legal notice and filed the complaint claiming Rs. 5 lakhs covered under the policy together with compensation and costs.
4) The insurance company resisted the case. However, it admitted issuance of policy during the life time of late K. Srininvasa Rao for Rs. 5 lakhs keeping the complainant as his nominee. It had received intimation of death on 2.4.2002. Since the assured had died within two years from the date of issuance of insurance policy and being an early claim caused investigation. The investigation revealed that the life assured had undergone treatment for cancer at Adayar Hospital, Chennai from 9.1.1998 to 12.2.2002 certified by the Deputy Director/Chairman of Oncology of the Cancer Institute. He was treated for “Non-Hodgkin’s Lymphoma, stage III (A) and classified as “Recurrence of disease” since the duration of disease was three years prior to his admission to Cancer Institute. The assured while submitting the proposal had suppressed the above ailment. The suppression renders the contract null and void. There is nexus between the death and the illness which he had suffered from. It had repudiated the claim by its letter Dt. 29.1.2003. Therefore it prayed for dismissal of the complaint with costs.
5) The complainant in proof of her case filed her affidavit evidence and examined PW2 Dr. Venkata Niligiri and got Exs. A1 to A7 marked, while the insurance company examined RWs 1 to 4 and filed Exs. B1 to B13 and got Exs. C1 to C11 marked through advocate commissioner.
6) The Dist. Forum after considering the evidence placed on record opined that RW1 Dr. T. G. Sagar who treated the deceased for cancer had in categorical terms deposed before it that he had treated the assured for cancer evidenced by voluminous documentary evidence Exs. C3 to C11. Since the deceased had suppressed the ailment which he was suffering from at the time when he obtained the policy amounted to suppression of material fact leading to repudiation. The repudiation was just and therefore dismissed the complaint.
7) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. It ought to have seen that her husband died of jaundice and not of cancer. It did not consider the certificate issued by PW2 and diagnostic report Ex. A7 Dt. 28.3.2002. In fact he underwent medical test before a panel doctor before obtaining the policy. He having been satisfied with his health condition the policy was issued, and therefore the repudiation was unjust.
8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
9) At the outset, we may state that the assured the husband of the complainant had taken an insurance policy for Rs. 5 lakhs on 31.1.2002 keeping the complainant as his nominee. In the proposal form against question No. 11 he denied that he was having any ailment during the last five years. According to the complainant, he died on 2.4.2002 due to jaundice. Evidently the insurance company examined Dr. T. G. Sagar of Cancer Institute as RW1. He swore on oath and stated that the assured had suffered from “Non-Hodgkin’s Lymphoma, stage III (A) and classified as “Recurrence of disease”. He filed Ex. C4 consent form given by the assured for treatment attested by RW2 who accompanied him. He categorically stated that Ex. C6
certificate issued by Adayar Hospital, Chennai wherein treatment for cancer was given. He substantiated his evidence by filing Ex. C7 case summary, Ex. C8 in-patient certificate, Ex. C9 progress chart in regard to radio therapy and also Ex. C11 information towards the follow up treatment. A perusal of it shows that he was admitted as in-patient from 30.7.2001 and was discharged on 2.8.2001. He was again admitted for liver biopsy as he had ‘Recurrence of cancer”. RW1 had categorically stated that after recurrence of cancer he might not have survived more than one year because of wide spread of liver involvement and he was in advanced stage of cancer. He was in stage III (A). Further investigation was made at NIMS wherein he was diagnosed that he was suffering from cancer.
10) Though a feeble attempt was made contending that Srinivasa Rao mentioned in the record was not that of the life assured, however, RW1 confirmed that he was the life assured. The Dist. Forum in fact sent for the original of Exs. C3 and C4 the documents from the hospital, verified the signatures appearing on the proposal form and observed:
“ On careful examination of signatures appearing in the proposal form Ex. B13 and Ex. C3 and C4 and the letters addressed by the life assured to the Cancer Institute, Adayar, Chennai were compared. On the said comparison, the signature appearing on these documents found to be tallying with each other. It is the life assured, who submitted the proposal form by rightly signing the proposal form and letter. It is the assured who submitted Exs. C3 and C4 which are the consent for treatment. The signature appearing on these documents found to be one and the same and belong to the life assured K. Srinivasa Rao”
When the doctors had confirmed that the deceased had been suffering from cancer at the time of submission of proposal form Ex. B13, the conclusion by the Dist. Forum that the assured had suppressed a major ailment cannot but be upheld. Section 45 of the Insurance Act comes into operation in cases where the death of the assured was before expiry of two years from the date of taking of policy. In the present case, the insured died within four months from the date of taking of policy. There was overwhelming evidence not only by way of oral evidence but also original documents from the hospital to show that the assured had suffered from chronic cancer at the time when he submitted the proposal form. The suppression of material fact would undoubtedly negate the agreement, consequently the policy. The repudiation was just and we do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. There are no merits in the appeal.
11) In the result the appeal is dismissed at the stage of admission. No costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
2) _________________________________
MEMBER
Dt. 19. 03. 2010.
*pnr
‘UP LOAD – O.K.”
