BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BELLARY

C.C.No.54 of 2014

Present :  

  (1)   Shri. R.Bandachar,

                                          B.Com, LL.B.  (Spl) ……    President

                                                                                            (in-charge)

  (2) Smt Mary Havila,

                                          B.A.                       ……        Member

DATED THIS THE 05^th DAY OF FEBRUARY 2015  

//ORDER//

Per Shri R Bandachar    

          The complainant filed the complaint against the respondents U/Sec-12 of the Consumer Protection Act 1986.   

               2.  The brief facts of the case are that the complainant’s father had taken life insurance policy bearing No. 84653961 with the respondent no.1 for sum assured of Rs.3,57,470/ by paying premium of Rs.25,000/- through cheque No.003747 dated: 17-12-2011 drawn on the respondent no.2 bank who acted as corporate agent of the respondent no.1.  Before issuing of the policy, the complainant’s father was examined by the respondents’ approved doctor by name L.N. Reddy, MSR Hospital, Bellary on 28-12-2011 and the said doctor after due medical examination certified that the policy holder Gadilingappa is hale and healthy and therefore, on the basis of the said medical report, the respondents issued the policy in favour of the complainant’s father on 30-01-2012. The complainant’s father died on 03-06-2012 and the same was communicated to the respondents.  The complainant submitted the claim form before the respondents as he is nominee under the said policy.   But the respondents rejected the claim of the complainant vide their letter dated: 30-08-2012  stating that the complainant’s father has not disclosed the material facts at the time of availing of the insurance policy.  The said repudiation by the respondents is illegal which amounts to deficiency in service on their part.  Therefore, the complaint.   

                3.   The respondent no.1 filed the written version stating that the complaint filed is false, vexatious and is nothing but an abuse of process of law.  The complainant has not approached this Forum with clean hands.   The contents of para-1 and 2 of the complaint need no comments as being a matter of fact and record.  The contents of para-3 of the complaint are not disputed.  The terms of the proposal was fully explained to the life assured.   The contents of para-4 to 7 of the complaint are matter of fact.  Though the life assured was examined before issuance of the policy, the same was routine examination and does not absolve from declaration of existing disease.  The contents of para-8 to 13 of the complaint are denied.   The policy was repudiated on 30-08-2012 on account of willful concealment of pre existing diseases namely diabetes mellitus and hepatitis B+ from which the life assure suffered prior to subscription of the subject policy.   No cause of action arose to the complainant to file the complaint.  There is no deficiency in service on the part of the respondent no.1.   Therefore, the complaint be dismissed.   

4.   The respondent no.2 filed the written version stating that the complaint is not maintainable either in law or on facts.   All the allegations made in the complaint, except those which are specifically admitted, are denied. The complainant does not come under the definition of consumer.  The allegation that the complainant’s father during his life time had taken a whole life (participating) insurance policy of the respondent no.1 on              30-01-2012 from the respondent no.2, is true and correct.  But remaining allegations are not within the purview of the respondent no.2.  The respondent no.2’s role is only of a facilitator/referral agent and actual insurance is issued by the respondent no.1.  There is no privity of contract between the complainant and the respondent no.2.   The respondent no.2 is only a corporate agent to the respondent no.1.   There is no deficiency in service on the part of the respondent no.2.  Therefore, the complaint be dismissed.   

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          5.  The complainant to prove his case, as his evidence, filed his affidavit, which is marked as P.W.1 and got marked 07 documents as Ex.P.1 to Ex.P.7. The respondents to prove their case, filed two affidavits, which are marked as R.W.1 and R.W.2 and no documents are marked on their behalf.   

                 6.  The written  argument is filed by the complainant and heard the oral arguments on both sides.   

1. The points that arise for our consideration are;

    

2. Whether the complainant has proved deficiency in

    

                       service on the part of the respondents towards him?

    

    

               2.  Whether the complainant is entitled for the reliefs    

                    prayed for in the complaint?                                     

    

3. What order?

    

    

    

    

    

                   8.     The findings on the above points are as under.

    

               Point No.1:    In the affirmative.                                                                   Point No.2:     Partly in the affirmative.  

               Point No.3:    As per final order.

    

// R  E A S O N S //

Point No.1 : -

                    9.  The respondents without disputing the issuance of the life insurance policy in favour of the complainant’s father Gadilingappa and its validity as on the date of the death of deceased life assured, repudiated the claim of the complainant to pay the amount assured under the policy on the ground of suppression of material facts regarding the health condition of the deceased life assured while making proposal for insurance policy.  It is the case of the respondent no.1 that while making proposal for life insurance policy the deceased life assured was suffering from diabetes mellitus and hepatitis B+ and this fact was suppressed by him and therefore, the repudiation of the claim of the complainant by the respondent no.1 insurance company is in accordance with the terms and conditions of the policy.

                   10.   To prove their contention that the deceased life assured had suppressed the material facts regarding his health condition/disease while making proposal for insurance policy with them, the respondents have not produced any cogent and clinching evidence to show that the deceased policy holder was suffering from diabetes mellitus and hepatitis B+ and this fact was suppressed by him while making proposal for life insurance policy.  In this regard, we rely on the decision of the Hon’ble Supreme Court rendered in Civil Appeal No.7969 of 2010 dated: 13-09-2010 (Balwinder Kaur Vs. Life Insurance Corporation of India), wherein it is held thus; 

11.  We have also relied on decision reported in III (2014) CPJ 340 (NC) wherein it is held that – people can live for months, even years, without knowing they have the disease and it’s often discovered accidentally after routine medical checkups – concealment not established.  That being the case, repudiation of the claim of the complainant by the respondents amounts to deficiency in service on their part. The contention of the respondent no.2 that the complainant is not a consumer cannot be accepted, because the respondent no.2 himself admitted that he is a corporate facilitator/referral agent of the respondent no.1.   With these reasonings, this point is answered in the affirmative.  

  Point No.2:-

        12.  As per the policy Ex.P.1, the assured amount is Rs.3,57,470/-.  As the complainant has proved deficiency in service on the part of the respondents, he is entitled for the said amount along with interest, compensation for deficiency in service and cost of the proceedings, which shall be as per the final order. Accordingly, this point is answered partly in the affirmative.  

Point No.3:-

                  13.  In view of the discussions made under point No. 1 and 2, we pass the following;

// ORDER //

                     The complaint filed by the complainant is partly allowed. 

The complainant is entitled to recover Rs.3,57,470/- with interest @ 9% p.a. from 26-03-2014 till its realization,  from the respondents.

The complainant is entitled to recover Rs.3,000/- towards compensation for deficiency in service, from the respondents.

The complainant is also entitled to recover Rs.2,000/- towards cost of the proceedings, from the respondents.

The respondents are jointly and severally liable to pay the above said amounts to the complainant within two months from the date of this order.

Inform the parties accordingly.