Date of Filing: 29/06/2011
Date of Order: 14/09/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 14th DAY OF SEPTEMBER 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO. 1193 OF 2011
Mr. K.V. Narayana Raju,
S/o. K. Doraswamy Raju,
R/at: No.2, Balaji Nilaya,
Virupakshapuram, Vidyaranyapura Post,
Kodigealli, Bangalore-560 097.
(Rep. by Advocate Smt.H.V.Vasanthalakshmi) Complainant.
-V/s-
Life Insurance Corporation Of India,
Bangalore Divisional Office-II
“Jeevan Jyoti”, Indiranagar Stage-II,
Bangalore-560 038.
Rep. by its Branch Manager.
(Rep. by Advocate Sri.G.N.Harish) Opposite party.
BY SRI.H.V.RAMACHANDRA RAO, PRESIDENT
ORDER
The brief antecedents that lead to the filing of the complainant made Under Section 12 of the Consumer Protection Act, seeking direction to the opposite party to pay a sum of Rs.5,00,000/- with interest, are necessary:-
Smt. K.V. Thyaramma the wife of the complainant had taken “New Bima Gold Policy” with accident benefit from the opposite party under policy bearing No.363835522 on 30.03.2007. At the time of issuing the policy she has been examined thoroughly by the Doctor of the opposite party and after taking his consent the policy has been issued and she was not suffering from any disease with respect to the heart or otherwise this has been confirmed by the insurance company’s doctor. After detailed investigation by the Doctor of the opposite party and after his consent the opposite party has issued the policy. Later the wife developed left side weakness and loss of conscious. She was taken to Padmavathi hospital and Abhaya Hospital, she succumbed to death on 25.03.2009 at about 6.43 pm at Abhaya Hospital due to raised Intracranial pressure. Hence the complainant made the claim with the opposite party on 27.07.2009 with all the documents. After lapse of 20 months the opposite party repudiated the claim stating that there was pre-existing disease which is untrue. Hence the complaint.
2. In brief the version of the opposite party are:-
The averments that the address of the complainant for the purpose of summons, notices, etc., is as shown in the cause title and also of his advocate has to be proved by the complainant himself with material evidence and through respectable leading persons of the locality as they are not known to the opposite party. It is true Smt. K.V. Thyaramma had obtained the policy which commenced on 28.03.2007 and the date of the expiry of the policy is 28.03.2037 and the premium paid is Rs.16,864/-. But within a span of one year 11 months the policy date, claim was made. Hence the opposite party has investigated the matter. It was found that deceased was having chronic heart disease since three years earlier thereto. This has been suppressed while obtaining the policy. Hence the claim was repudiated rightly as per the terms of the policy. All the allegations to the contrary are denied.
3. To substantiate their respective cases, the parties have filed their respective affidavits and documents and the opposite party in addition to the affidavit of Sri. Venkataramanan has also filed the affidavit of Dr.S.Sanjay of Abhaya Hospital. The arguments were heard.
4. The points that arise for our consideration are:-
- Whether the repudiation of the claim by the opposite party is an unfair trade practice/deficiency in service?
- What order?
5. Our findings on the above points are:-
Point (A) & (B):As per the final order
For the following:-
REASONS
POINT (A) to (B):-
6. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the wife of the complainant Smt. K.V. Thyaramma had made an application with the opposite party on 20.03.2007 for “New Bima Gold Policy” with accident benefit. It is also an undisputed fact that the said wife of the complainant never disclosed of any previous illness of any sort. On that the policy was issued to her. It is also an admitted fact that the wife of the complainant was taken to Padmavathi Multi Specialty Clinic on 21.03.2009 for sudden weakness of left hand and neck and from there she was taken to Abhaya Hospital on 24.03.2009 wherein she succumbed to death on 25.03.2009 at 6.43 pm and the cause of the death is due to rise intra coronial pressure. On this it is an admitted fact that the complainant made a claim with the opposite party on 27.07.2009 with the death certificate and other documents. The opposite party after lapse of about 20 months on 31.03.2010 have repudiated the claim stating that the complainant has not disclosed the pre-existing disease of rheumatic heart disease, this has been challenged in this case.
7. The complainant has stated and sworn to thus:-
“At the time of issuing the policy from the opposite party, she has been examined by the insurance doctor and after taking his consent they have issued the policy in her favour.
The complainant submits that at the time of issuance of policy the complainant’s wife has any heart disease and she was not suffering from any other disease. The above information has been confirmed by the insurance doctor, who has been authorized by the opposite party, who has examined her before issuing the policy in favour of the complainant’s wife. After detailed investigation by their doctor and obtaining his consent they have confirmed the policy.”
This has not been specifically challenged or denied by the opposite party nor per contra the insurance doctor who has examined the wife of the complainant at the time of issuing the policy has filed any affidavit and has stated anything per contra in this regard. Hence an adverse inference has to be drawn against the opposite party. When the Doctor of the opposite party has examined the complainant and found that the complainant was not suffering from any heart disease or any disease, certified it and then alone the opposite party has issued the policy, hence the opposite party cannot turn round and say that the wife of the complainant was suffering from pre existing heart disease, it was not disclosed, hence they were right in repudiating the claim.
8. It is true that at the time of admission at the Abhaya Hospital the following is recorded as the history reads thus:-
On this it was contended that the deceased was having a pre-existing heart disease. This is dated: 24.03.2009. Who has given the history to her? There is no answer. When the policy was taken in the year 2007 the doctor of the opposite party had examined the said wife of the complainant and found that there was no disease. As such this statement recorded cannot be mean that the wife of the complainant had any pre-existing disease. On the basis of this entry, Dr. Sanjay.S who was only a consultant physician has sworn to an affidavit he had not seen Thyaramma earlier to 24.03.2009 nor he has examined Thyaramma earlier to 24.03.2009. He is not on the payroll of Abhaya Hospital nor he has recorded the history on 24.03.2009 in Abhaya Hospital. The signature of the person who has recorded the history at Abhaya Hospital is not that of Dr. Sanjay.S as visible to the necked eye. Hence this statement of Dr. Sanjay.S cannot be believed to the effect that the deceased has having chronic heart disease since three years. The said Dr. Sanjay.S at the cost of repetition we say that he has not seen the deceased earlier to 24.03.2009. Hence how can he say that the deceased was suffering from the heart disease since three years earlier to her death. No record earlier to 24.03.2009 of the deceased is fourth coming.
9. In any event what is the tests Dr. Sanjay conducted or examination he made to know that the deceased was having this heart disease since three years? There is no record. Hence under these circumstances denying the claim or repudiating the claim is only an unfair trade practice as rightly contended.
10. When the opposite party’s Doctor has examined the wife of the complainant found that she had no disease and then the opposite party has issued the policy and now taking a stray sentence in the discharge summery and repudiated the claim is nothing but an unfair trade practice as rightly contended. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite party is directed to pay to the complainant sum of Rs.5,00,000/- together with interest thereon at the rate of 12% per annum from 27.07.2009 until payment within 30 days from the date of this order.
3. The opposite party is also directed to pay to the complainant a sum of Rs.2,000/- as costs of this litigation.
4. The opposite party is directed to send the amounts as ordered at Serial Nos. 2 & 3 above to the complainant through DD by registered post acknowledgment due and submit the compliance report to this Forum with necessary documents within 45 days from the date of this order.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to both the parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 14th Day of September 2011)
MEMBER MEMBER PRESIDENT
