THE DISTRICT CONSUMER’S FORUM: KURNOOL
Present: Sri.Y.Reddappa Reddy, M.A., L.L.M., President,
And
Smt. S.Nazeerunnisa, B.A., B.L., Lady Member
Wednesday the 4TH day of February, 2015
C.C.No.110/2013
Between:
Golla Chinnamuddanna,
H/o Late Golla Krishnamma,
H.No.3/12, Chaagapur Village,
Itikyal Mandal-509 127,
Mahaboob Nagar District. …Complainant
-Vs-
1. Max New York Life Insurance Company Limited,
Represented by its Branch Manager,
H.No.40/301/10, 4th Floor, Railway Station Road,
Bangarupeta, MRB Trade Centre,
Kurnool District-518 004.
2. Max New York Life Insurance Company Limited,
Represented by its Chairman,
Max House, 1 Dr.Mar, Okhla,
New Delhi-110 020. …OPPOSITE PARTIES
This complaint is coming on this day for orders in the presence of Sri.P.Siva Sudarshan, Advocate for complainant and Sri.T.Eswar Babu, Advocate for opposite parties 1 and 2 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Smt. S.Nazeerunnisa, Lady Member,)
C.C. No.110/2013
1. This complaint is filed under section 11 and 12 of Consumer Protection Act, 1986 praying:-
(a)To directing the opposite parties to pay the policy amount a sum of Rs.4,83,547/- to the complainant with interest at 24% per annum from the date of death of policy holder i.e., 04-06-2011 to till the date of realization.
(b)To grant a sum of Rs.10,000/- towards mental agony.
(c)To grant a sum of Rs.5,000/- towards cost of the complaint.
And
(d)To grant any other relief as the Honourable Forum deems fit and proper in the circumstances of the case.
2. The facts of the complainant in brief is as under:- The complainant is the son of Late Golla Krishnamma on 08-03-2010 Golla Krishnamma insured her life with opposite party No.1under the policy bearing No.371232059 for the sum assured of Rs.4,83,547/- with an annual premium of Rs.40,001/-. The complainant is the nominee under the policy. On 04-06-2011 the insured died due to chest pain and death is natural one. The complainant, who is a nomine under the policy submitted claim to opposite parties. The complainant approached the opposite parties and requested then to settle the claim of the complainant, but they did not respond. The opposite party No.2 repudiated the claim on 14-11-2011, stating that insured with held the correct information regarding her health at the time of proposal. The insured was suffered from Ovary Cancer. But the insured/deceased was hale and healthy she did not suffered from any alleged disease. The opposite parties wantonly not paying the claim amount without any reasonable and lawful cause. Due to the negligent act of opposite parties the complainant suffered mental agony. There is a deficiency of service on the part of opposite parties. Hence the complaint.
3. Opposite party No.1 called absent and set exparte.
Opposite party No.2 filed written version stating that the complaint is false, malicious, vexacious, neither maintainable in law or on facts. It is admitted that the opposite parties issued policy bearing No.371232059 for an assured sum of Rs.4,83,547/-. It is also admitted that the complainant made a claim to opposite parties and the opposite parties repudiated the same on 14.11.2011 for non-discloser of material facts in regard to her health condition. It is submitted that after investigation, it was found that the deceased was already diagnosed for Palliative Chemotherapy on 26-02-2010 as the insured was a patient of Carcinoma Ovary with Ascites (Cancer) and was admitted to Viswa Bharathi Cancer Hospital , Kurnool, prior to issuance of policy. The opposite parties acted as per terms and conditions of the policy and the repudiation is legal. There is no cause of action for filing this complaint. There is neither deficiency of service nor negligence on the part of opposite parties. Hence the complaint is liable to be dismissed.
4. On behalf of the complainant filed Ex.A1 to Ex.A3 are marked and sworn affidavit of complainant is filed. On behalf of opposite parties filed Ex.B1 to Ex.B6 are marked and sworn affidavit of opposite party No.2 is filed.
5. Complainant and opposite party No.2 filed written arguments.
6. Now the points that arise for consideration are:
- Whether there is deficiency of service on the part of opposite parties?
- Whether the complainant is entitled for the reliefs as prayed for?
- To what relief?
7. Points i and ii:-Admittedly the insured Golla Krishnamma obtained the life insurance policy from opposite party No.1 under Ex.B2 (Proposal Form) bearing No.371232059 for an assured sum of Rs.4,83,547/- with annual premium of Rs.40,001/-.The deceased insured died on 04-06-2011, due chest pain Ex.A2=EX.B4 is the death certificate issued by Register of Birth and Death Chagapuram Village, Itikyal Mandal, Mahaboobnagar District dated 28.06.2011.
Admittedly the complainant submitted claim form to opposite parties which is marked as Ex.A1 dated 19.08.2011. The opposite parties repudiated the claim on 14-11-2011, on the ground that the deceased insured suppressed the material facts regarding her health at the time of taking policy, the repudiation letter is marked as Ex.A3=Ex.B6. The complaint in his sworn affidavit stated that the allegations made against the insured are baseless. The insured died due to chest pain and death is natural one.
8. The Opposite Party No.2 in his sworn affidavit stated that the Opposite Parties conducted investigation and the investigator filed report dated 25.10.2011 stating that the deceased was patient of Carcinoma Ovary with Ascites and she was admitted to Viswha Bharati Cancer, Hospital Kurnool, for Palliative Chemo therapy on 26-02-2010, prior to the commencement of the policy. The investigation report is marked as Ex.B1, Ex.B2 is the proposal form. The policy dispatch and delivered to complainant, which is marked as Ex.B3 dated 11-03-2010, Ex.B4=Ex.A2 Death Certificate of insured. Ex.B5 photo copy of condolence letter dated 13-09-2011. Ex.B6=Ex.A3 is the photo copy of repudiation letter i.e., on 14-11-2011. The learned counsel appearing for the Opposite Party No.2 contended that the above policy issued on the representation of the insured and she ought to have made full disclosure of all the relevant facts under clause 17 of policy, any concealment, misrepresentation or fraud committed by policy holder shall render the policy would liable for cancellation and amount shall be forfeited. The deceased insured did not mention the facts of treatment taken by her before taking the policy. So the opposite Parties rightly repudiated the claim of the complainant as per their norms and conditions. There is no deficiency of service on the part of opposite parties and they are not liable to pay amount to the complainant. To support his version he cited decisions reported in (2001) SCC Page 160 Life Insurance Corporation of India and others -Vs- Asha Goel (Smt.) and another, where in it was held that determination of question whether there has been any suppression of material facts, it may be necessary to also examine whether suppression relates to a fact which is in the exclusively knowledge of the person intending to take the policy and it could not be ascertained by reasonable inquiry by a prudent person, but in the present case on hand so as to prove the preexisting disease of insured and suppression of the same the opposite parties did not examine doctor, who treated the insured for the alleged disease.
9. The learned counsel appearing for the complainant argued that it has no connection with the alleged diseased and cause of death. There must be nexus between cause of death as alleged by Opposite Parties and suffered by the insured. He relied decisions reported in II (2008) CPJ 262 A.P. State Commission where in it was held that Burden of proof is on the insurer to establish that material facts suppressed by the insured. In (2012) CPJ page 41 Rajasthan State Commission it was held that affidavit of agent, who sent the proposal for, affidavit of Investigator as also as person who could have proved documents in respect of previous disease of insured have not been filed so for. Insurance Company cannot escape from its liability merely by saying that contract was made by on misrepresentation and concealment of preexisting disease.
There is no dispute with regard to issuance of policy in favour of deceased insured, the complainant submitted claim to opposite parties and the opposite parties repudiated the same under Ex.A3=Ex.B6 dated 14-11-2011, on the ground that the deceased insured suppressed the material facts regarding to her health. The opposite parties produced Ex.B1 investigation report dated 25-10-2011, along with photo copy of clinical summary issued by Viswa Bharati Hospital, Kurnool. To establish the authenticity of clinical summary the opposite parties did not choose to either examine or file affidavit of the doctor, who issued the same and treated the deceased insured. Mere filing medical certificate without examine a doctor is not prove the said facts. In decision reported in III (2011) CPJ page 418 (NC) held that medical certificate produced by the petitioner not proved on record production of documents is different from proof of same. In IV (2012) page 646 NC Life Insurance Corporation of India -Vs- Priya Sharma National Commission held that the onus to prove is on the Insurance Company to prove the preexisting disease of insured, not examined any doctor to prove this fact, repudiation not Justified.
In the present case on hand the burden is on the opposite parties to prove the alleged suppression of material facts by insured by evidence. The photo copy of clinical summary along with Ex.B1 is filed, but the opposite parties did not examine neither the doctor nor an affidavit of doctor who treated the patient is filed. Even the affidavit of investigator is also not filed. Without filling any credible evidence on their behalf it is not possible to come in to conclusion that she had been suffered from the alleged disease and had been taken treatment. The opposite parties could not establish that the insured concealed the material facts with regard to her health at the time of taking policy. We consider all the material available on record and in the light of above decisions we hold that there is a deficiency of service on the part of opposite parties. Hence the complainant is entitled for an assured amount of Rs.4,83,547/- under the said policy.
10. POINT No.iii:- The complainant claimed for amount of Rs.4,83,547/- with interest at 24% per annum and for the Rs.10,000/- towards mental agony for the negligent act of the opposite parties. We consideration all the material available on record, facts and circumstances of the case, we hold that the complainant is entitled for an amount of Rs.4,83,547/- with interest at 9% per annum from the date of complaint i.e., on 12.11.2013 till the date of realization and further entitled compensation of Rs.5,000/- towards mental agony.
11. In the result, the complaint is partly allowed directing the opposite parties jointly and severally to pay an amount of Rs.4,83,547/- with interest at 9% per annum from the date of complaint i.e., on 12.11.2013 till the date of payment and further direct to pay compensation of Rs.5,000/- towards mental agony and Rs.1,000/- as costs of the case. Time for compliance is one month from the date of receipt of this order.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 4th day of February, 2015.
Sd/- Sd/-
LADY MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainants:- Nil For the opposite parties:- Nil
List of exhibits marked for the complainants:-
Ex.A1 Photo copy of Death Claim Application Form-A dated
19-08-2011.
Ex.A2 Photo copy of Death Certificate.
Ex.A3 Photo copy of Repudiation Letter dated 14-11-2011.
List of exhibits marked for the opposite parties:-
Ex.B1 Photo copy of Investigation Report dated 25-10-2011.
Ex.B2 Photo copy of Proposal Form.
Ex.B3 Photo copy of Policy documents along with letter dated
11-03-2010.
Ex.A4 Photo copy of Death Certificate.
Ex.A5 Photo copy of condolence letter dated 13-09-2011.
Ex.A6 Photo copy of Letter dated 14-11-2011.
Sd/- Sd/-
LADY MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties :
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