BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.92/2008 Order dated this the 12th day of December 2008 COMPLAINANT/S Sri.Y.K.Thimmegowda S/o Kempegowda @ Ghagi Kempegowda, R/o Yelechakanahally Village, Tubinakere Post, Kothathi Hobli, Mandya Taluk, Mandya District. (By Sri.H.Dasegowda., Advocate) -Vs- OPPOSITE PARTY/S 1. The Divisional Manager, Life Insurance Corporation of India, Divisional Office, Jeevan Prakash, P.B.No.37, Mysore-Bangalore Road, Bannimantap, Mysore. 2. The Branch Manager, Life Insurance Corporation of India, Bandigowda Layout, Mandya. (By Sri.S.Sudarshan., Advocate) Date of complaint 06.09.2008 Date of service of notice to Opposite parties 23.09.2008 Date of order 12.12.2008 Total Period 2 Months & 19 Days Result The complaint is allowed directing the Opposite Parties to pay the policy amount of Rs.2,00,000/- with interest from 9% p.a. from the date of complaint till realization with cost of Rs.1,000/-. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act, 1986 for settlement of insurance claim of Rs.2,00,000/-. 2. The case of the complainant is that he had obtained insurance policy bearing No.723285475 for Rs.2,00,000/- from the Opposite party Insurance Company in the name of his daughter Y.T.Prashanthi. The complainant is the nominee. Unfortunately his daughter Y.T.Prashanthi died on 10.11.2006 and it is a natural death. As a nominee, the complainant preferred the claim to the Opposite party Insurance Company. The Opposite parties have repudiated the claim by letter dated 13.05.2008, alleging that the insured has made incorrect statement and withheld correct information regarding her health at the time of obtaining the policy. In fact his daughter Y.T.Prashanthi was keeping good health at the time of obtaining the policy and she has not suppressed any material facts. The repudiation of the claim amounts to deficiency of service. Therefore, the present complaint is filed for a direction to Opposite party to pay insurance amount of Rs.2,00,000/- with interest at 18% p.a. 3. The 1st Opposite party has filed version admitting the insurance policy obtained. It is pleaded that the date of death of insured is 11.11.2006 and not 10.11.2006. It is pleaded that after the claim made by the complainant, investigation was conducted and it revealed that the deceased life assured was patient of diabetes mellitus. She has episodes of LCC fall, weakness, seizures and drowsiness prior to obtaining the policy. Further, the deceased was treated at Sri Satya Sai Institute of Higher Medical Sciences, Bangalore on 19.05.2005 for the said complaints and she was diagnosed for diabetes mellitus and further she was treated at M.S.Ramaiah Hospital, Bangalore from 06.11.2006 to 10.11.2006 and she was discharged against medical advice. The complainant who was the proposer never revealed the illness and treatment particulars of the life assured prior to obtaining the policy. The contract of insurance is null and void as the proposer has suppressed the material fact and hence the repudiation made by the Opposite party is just and proper. The Opposite party has not committed any deficiency in service. The complainant is not entitled to amount of the policy. Therefore, the complaint is liable to be dismissed with costs. 4. During trail, the complainant is examined and documents Ex.C.1 to Ex.C.4 are produced. On behalf of the Opposite parties, two witnesses are examined and documents Ex.R.1 & R.8 are produced. 5. Both the sides have filed written arguments. 6. We have perused the records. 7. Now the points that arise for our considerations are:- 1) Whether the Opposite party proves that the assured was suffering from diabetes mellitus deceased earlier to obtaining the policy and the proposer has suppressed the material facts? 2) Whether the repudiation of the insurance claim is proper? 3) Whether the complainant is entitled to the insurance amount? 8. Our findings and reasons are as here under:- 9. POINT No.1:- The undisputed fact is that the complainant obtained the LIC policy for Rs.2,00,000/- from the Opposite party on 12.11.2005 as per Ex.R.4 in the name of his daughter Y.T.Prashanthi who was 9 years old at that time and she died on 10/11-11-2006 as per Ex.C.4 and evidence of the complainant. Though the date of death in Ex.C.4 is mentioned as 11.11.2006 usually the date of cremation would be mentioned in the card. In fact, the date of death is mentioned as 10.11.2006 in Ex.C.4. It is also admitted that the complainant preferred the claim with the death certificate being a nominee. It is admitted fact that the Opposite party has repudiated the claim by sending the letter Ex.C.1 pleading that the insured had made incorrect statements and withheld correct information regarding her health at the time of effecting the assurance. 10. The contention of the Opposite party is that prior to obtaining the policy, the assured was patient of diabetes mellitus and she had episodes of LCC fall, weakness, seizures and drowsiness and hence there is suppression of material facts regarding health and in fact she was treated at Sri Satya Sai Institute of Higher Medical Sciences, Bangalore on 19.05.2005 and she was diagnosed for diabetes mellitus. This contention of the Opposite party is denied in the cross-examination by the complainant. Of course, it is admitted fact by the complainant that his daughter Y.T.Prashanthi was admitted to M.S.Ramaiah Medical Hospital, Bangalore and treated from 06.11.2006 to 10.11.2006 and she died. So, the burden is on the Opposite party Insurance Company to prove that prior to obtaining the policy, the assured was suffering from a disease and took treatment in hospital and knowing that fact she has suppressed the same at the time of obtaining the policy. As per Ex.R.2 the proposal form for the Insurance, the complainant is the proposer and has given answers and according to this, she was healthy and not suffering from any disease. The date of proposal is 12/11/2005. Admittedly that assured was a minor girl of 9 years old and naturally she would not be having the knowledge of the disease. To prove the defence, the Opposite party has produced Ex.R.6, the letter of Sri Satya Sai Institute of Higher Medical Sciences, Bangalore with certified copy of the case sheet. It appears that the Opposite party has written a letter to the Sri Satya Sai Institute of Higher Medical Sciences, Bangalore with the address of the insured Prashanthi with policy number and they have sent the copy of the case sheet. The Opposite parties have not examined the doctor who examined the assured and to prove what was the diagnoses made. Since, the complainant has denied the treatment at Sri Satya Sai Institute of Higher Medical Sciences, Bangalore mere production of certified copy of the case sheet will not prove that the deceased was suffering from diabetes mellitus and she had other complaints. The affidavit of the doctor who treated should have been filed. Further, the case sheet Ex.R.6 reveals that only on 19.05.2006 she was examined and there is no material whether she was admitted to hospital and given further treatment and what is the final diagnosis. At the end of the case sheet it is mentioned by the doctor as history of early morning hypoglycemia diagnosis provisional - ? Insulenoma. Through the evidence of a witness Dr.Mali Manjunath of M.S.Ramaiah Hospital, it is elicited that hypoglycemia means low sugar level, but the suspected provisional diagnosis is insulenoma, what is the meaning of insulenoma, is not explained. So, there is no definite diagnosis at Sri Satya Sai Institute of Higher Medical Sciences, Bangalore to prove that actually the complainants daughter Prashanthi was admitted Satya Sai Institute of Higher Medical Sciences, Bangalore and it was diagnosed that she was suffering from diabetes mellitus. In fact, in the case sheet there is no complete address of the patient and there is no evidence that who gave the history of illness in the Satya Sai Institute of Higher Medical Sciences. Further, the Opposite party has relied upon the treatment records of the assured at M.S.Ramaiah Medical Hospital, Bangalore as per Ex.R.8 and the treatment is not denied by the complainant. The RW.2 witness Dr.Mali Manjunath who is the RMO of the M.S.Ramaiah Hospital has produced the records. But the doctor who treated the insured is not examined and his affidavit is not filed. Of course, as per this document, the complainant being a father has given the history of the illness of his daughter Prashanthi stating that unconsciousness lasting for 5 minutes and 1 or 2 times in a month and the child was investigated with CT and EEG and was on anticonvulsants since 6 months. As per this case sheet, it is provisionally diagnosed as persisted hypoglycemia seizure - ?, Insulenoma. 11. On the basis of this medical records, it is contended that at the time of obtaining the policy and prior to it, the assured was suffering from diabetes mellitus and inspite of treatment, the proposer has suppressed the material facts about the health condition. 12. In the decision I (2006) CPJ 497 in the case of LIC of India Vs- Hansraji Yadav, the Delhi State Commission has held that if a Consumer or insured does not disclose a fact about his having been hospitalized or operated upon for a particular disease or having been remained in the hospital a year or two before obtaining of the policy, the contention of the suppression of material fact can hold water, otherwise not. To expect a layman to know as to the nomenclature of the disease of the kind one in question is too much. (in that case within one month of obtaining the policy, the insured fell ill and died after six months due to carcinoma of gall bladder, bronchial asthma) and in that case the claim was allowed. Further, the Delhi State Commission I (2006) CPJ 494 in the case of Oriental Insurance Co., Ltd., -Vs- Madhusudhan Sharma, has held that disease like hypertension diabetes etc. so common and are always controllable unless and until patient has undergone long treatment including hospitalization and undergoes operation etc. in near proximity of taking policy cannot be accused of concealment of material fact and the insured is entitled to reimbursement of the mediclaim expenses. Further, in II (2007) CPJ 242 (NC) in the case of LIC of India Vs- Patel Ganesh Bhai Ramji Bhai, the Honble National Commission has observed that the doctor who issued the medical certificate for having treated is not examined and affidavit is not filed, but the other doctor of the hospital had no knowledge as to which doctor treated the life assured, from which place and lastly what kind of treatment was being taken and the doctor who was examined before the Forum has no idea of cause of death of the life assured. 13. Bearing in mind the observations made by the Delhi State Commission and National Commission, if we analyse the evidence adduced by the Opposite party to prove that prior to obtaining the policy the disease was suffering from diabetes mellitus, we can safely come to the conclusion that the complainant, the father of the assured who obtained the insurance policy of the complainant daughter from Opposite party has not suppressed any material fact about the illness of diabetes mellitus much prior to obtaining the policy, because the Opposite party has not filed affidavit of the doctor of Satya Sai Hospital, Bangalore to prove that the disease assured was admitted to the hospital and diagnosed that she was having diabetes mellitus Ex.R.6 do not prove that she took treatment for diabetes mellitus for number of days in the hospital as in patient and therefore we cannot expect that the complainant was knowing that his daughter was suffering from diabetes mellitus, because as per the case sheet Ex.R.8 while giving history by the complainant at the time of admission at M.S.Ramaiah Medical Hospital, she was on anticonvulsants since 6 months prior to 06.11.2006. So, the disease mentioned by the Opposite party is diabetes mellitus, but the case sheet Ex.C.8 reveals that prior to admission at M.S.Ramaiah Hospital she was on treatment since 6 months prior to 06.11.2006 with anticonvulsants. As observed above the diabetes disease is a common disease and a controllable disease and unless it is diagnosed by proper investigation and on proper medication and treatment as inpatient in the hospital, person will not come to know that she was suffering from diabetes mellitus. It is an admitted fact that before issuing the policy the doctor from the panel of the Opposite party Insurance Company has examined the insured and issued the confidential report as per Ex.R.3 and the doctor has certified that he has examined the assured personally and recorded in his own hand the true and correct findings and has given the opinion that on examination the assured appears healthy and he has obtained the signature of the insured Y.T.Prashanthi in Ex.R.3. She has given the answer, no, to whether she was hospitalized. The records reveals that prior to obtaining the policy she was never hospitalized, because records of inpatient from the hospital is not produced except Ex.R.6 a out patient sheet without any pathological tests and long treatment. 14. Though the Opposite party has relied upon Ex.R.1, the letter claiming the insurance amount given by the complainant and it contains the words that his daughter died on account of diabetes disease, but the evidence of the complainant is that he has not written the contents of the letter, but it contains his signature in Ex.R.1. if we closely observe this letter, it appears that the agent of the Opposite party Insurance Company has played fraud and he has written this letter and before writing this letter, he has obtained the signature of the complainant, because at the bottom of the letter, a mark is made and by the side of this mark, signature of the complainant is obtained. The evidence of the complainant is that he has studied up to only 4th standard. He is at 42 years now and if we see the signature and the contents of the letter, it cannot be accepted that he has written the contents because handwriting is entirely different. If in the presence of the complainant this letter Ex.R.1 was written and thereafter the signature is obtained, there was no question for putting the mark by the side of the signature of the complainant. Therefore, it cannot accepted that the complainant has written the letter Ex.R.1 stating that his daughter died due to diabetes disease. Under these circumstances the Opposite party has failed to produce acceptable evidence to prove that prior to obtaining the policy, the diseased was suffering from diabetes mellitus and inspite of treatment at Hospital, the proposer complainant or assured has suppressed about the ill-health. Therefore, we answer point no.1 in the negative. 15. Since the Opposite party has failed to prove point no.1, the contention of the Opposite party that the contract of insurance is null and void and hence the claim is repudiated on just and proper reasons cannot hold water. Therefore, we hold that the repudiation of the claim by the Opposite party is not just and proper and hence we answer point no.2 against the Opposite party. 16. The complainant has sought for insurance claim of Rs.2,00,000/-. Admittedly the policy is obtained for Rs.2,00,000/- and so the complainant is entitled to the insurance amount of Rs.2,00,000/- with interest. 17. In the result, we proceed to pass the following order; ORDER The complaint is allowed directing the Opposite Parties to pay the policy amount of Rs.2,00,000/- with interest from 9% p.a. from the date of complaint till realization with cost of Rs.1,000/-. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 12th day of December 2008). (PRESIDENT) (MEMBER) (MEMBER)
