This complaint coming up before us for final hearing on                      24-03-11 in the presence of Sri Ch.V.Srinivasa Rao, Advocate for complainant and of Sri P.Ramanjaneyulu, Advocate for opposite parties, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following: 

O R D E R

Per Sri M.V.L.Radha Krishna Murthy, Member:

                This complaint is filed under section 12 of the Consumer Protection Act, 1986 by the complainant prying to pay claim amount of Rs.1,80,000/- with all benefits along with interest at 24% p.a. from the date of claim till the date of realization, to pay Rs.25,000/- towards compensation for mental agony and to pay Rs.2000/- towards costs.

The averments of complaint in brief are as follows:

                Mother of complainant Vusirikayala Koteswaramma obtained a policy from opposite party company for Rs.1,80,000/-.  The premium for said policy is Rs.12,000/- p.a.  On payment of premium opposite party company issued policy on 18-11-08 at Mulukuduru Village, Ponnur Mandal through their agent Ravindra Reddy after making thorough enquiry about the particulars of insured.  Subsequently on 09-01-09 complainant’s mother i.e., the insured died due to renal failure and the same was intimated to the opposite party’s branch at Vijayawada by the complainant for settlement of claim amount.  The complainant submitted the required documents to 1^st opposite party branch at Vijayawada.  Subsequently 2^nd opposite party sent an intimation letter dt.04-09-09 stating that the opposite parties are unable to admit the liability for the said claim due to non-disclosure of material facts with regard to the age of the deceased i.e., mother of complainant and also opposite party sent a cheque for Rs.9369/- dt.04-09-09 towards refund of policy amount by treating the said policy as void.  The complainant submitted election voter identity card of the deceased to opposite parties.  Basing on the said voter identity card opposite parties came to a conclusion that the age of the deceased was 53 years.  Sometimes it may happen due to type mistakes or there is every possibility that the person who made enquiry for issuing election identity card may be wrongly note down the particulars of the deceased.  So the age mentioned in the election identity card is not accurate and it is subject to mistake of facts, due to illiteracy the insurer unable to obtain date of birth certificate during her life time.   That is why the deceased produced notarized affidavit with regard to age proof at the time of taking policy.  There is a household card of insurer which was issued by MRO of Ponnur Mandal Guntur District.  In fact such document has to be sent along with previous documents but due to misplacement, the complainant unable to send the same.  The age mentioned in the household card and notarized affidavit is accurate and the same has to be considered to settle the claim.  Therefore, the complainant is not accepting the cheque sent by opposite parties and the same is returned along with registered reply legal notice dt.25-09-09. The opposite parties received the same and gave reply stating some story and kept quite without discharging their liability.  Hence, the opposite party committed deficiency of service and caused mental agony to complainant.  Hence, the complaint.  

The opposite parties filed their version, which is in brief as follows:

                The death of the life assured admittedly being within two months from the date of commencement of risk as per policy, Section 45 of the Act applies with a great force and consequently, the complaint does not stand the test of law.  The opposite party issued life insurance policy to the deceased Vusirikayala Koteswaramma in good faith. The date of commence of risk of policy is 18-11-08, the premium being Rs.12000/- p.a. and the sum assured is Rs.1,80,000/-. In the application for policy, the deceased mentioned her date of birth as 10-12-1958 and furnished a declaration before a notary in support thereof.   According to it she was less than 50 years on the date of application. Considering the age mentioned in the application, the policy was issued without any further medical tests.  The complainant intimated the death of life assured on 09-01-09 due to renal failure and submitted last attending physician’s statement and family doctor statement along with claimant statement.  During processing of claim, the investigation revealed that the deceased had given false information regarding age in the application for issuance of life insurance policy rendering the policy void from inception.  As per the age mentioned in the application, the opposite parties issued policy in good faith without medical examination.  If the actual age had been disclosed and available proof such as voter ID had been furnished the policy would not have been issued without medical tests and on non-standard age proof of self declaration. The misrepresentation of the age has become relevant in the light of nature of ailment suffered.   The opposite parties have rightly repudiated the claim vide letter dt.04-09-09 and repaid the fund value of Rs.9369/- vide cheque No.264658 dt.03-09-09 towards full and final payment under the policy. The deceased life assured had misrepresented the material facts and failed to act with utmost good faith rendering the policy void from the inception.  It is true that the complainant had issued legal notice and returned the cheque.  There is no deficiency of service on the part of opposite parties.  It is pertinent to mention that the letter of complainant dt.31-05-09 disclosed that the deceased life assured was suffering form kidney problem from past 10 years and was under regular medication under doctor TS Raja Rao.  But this fact was also not disclosed in the application for the policy.  Hence, the complaint may be dismissed with costs.

                The complainant and opposite parties 1 and 2 have filed their respective affidavits in support of their versions reiterating the same.  On behalf of complainant Ex.A1 to A11 are marked and on behalf of opposite parties Ex.B1 to B9 are marked.

                Ex.A1 is the copy of policy issued to deceased Vusirikayala Koteswaramma by opposite party for Rs.1,80,000/- with effect from 18-11-08. Ex.A2 is the death certificate. Ex.A3 is the acknowledgement of claim intimation. Ex.A4 is the letter from opposite party to the complainant.  Ex.A5 is the letter of repudiation of claim addressed by opposite party to the complainant.  Ex.A6 is the notice got issued by complainant to the opposite party.  Ex.A7 is two postal receipts.  Ex.A8 is two postal acknowledgements.  Ex.A9 is copy of household card. Ex.A10 is the letter from Axes Bank to the complainant.  Ex.A11 is the copy of affidavit of deceased Koteswaramma.

                Ex.B1 is the application of deceased Koteswaramma for the policy dt.10-11-08.  Ex.B2 is the policy.  Ex.B3 is the receipt for policy.  Ex.B4 is the claimant’s statement - death claim.  Ex.B5 is the last attending physician’s statement.  Ex.B6 is the family doctor statement.  Ex.B7 is the copy of identity card issued by Election Commission of India.  Ex.B8 is the letter addressed by complainant to opposite party.  Ex.B9 is the declaration given by deceased insured dt.31-10-08 made before notary regarding her age. 

Now the points for consideration are

1. Whether there is any deficiency of service on the part of opposite parties?
2. To what relief the complainant is entitled to?

POINTS 1 & 2

                The case of the complainant is that his mother Vusirikayala Koteswaramma obtained life insurance policy from opposite parties for a sum of Rs.1,80,000/- by paying Rs.12,000/- and accordingly opposite parties have issued policy with effect from 18-11-08 and that his mother died on 09-01-09 due to renal failure and that he claimed for the insured amount by submitting all the required documents and that opposite parties have repudiated his claim due to non-disclosure of material facts and treated the said policy as void ab-initio and sent cheque for Rs.9369/- towards value of the fund and that he returned the same. Thus the opposite parties have committed deficiency of service. 

                The case of opposite parties is that the deceased insured wrongly furnished her age as 50 years at the time of applying for the policy, that she declared her age as 50 years in the sworn affidavit enclosed to the application for the policy but the election ID Card submitted for settlement of claim discloses her age as 40 years as on 01-01-95 and that therefore her age at the time of application is 53 and that she was died due to renal failure while she was taking treatment for her kidney problem for the last 10 years and that she has not disclosed the said material fact in her application for the policy and thus the insured has not disclosed the material facts and that they have issued policy basing on the principle of utmost good faith and there by rendering the contract voidable and that therefore they have repudiated the claim of complainant and treated the said policy as void ab-initio and returned the fund value of policy i.e., Rs.9369/- by way of cheque and that the complainant has returned the same.      

                It is not in dispute that the deceased Vusirikayala Koteswaramma mother of complainant obtained life insurance policy from opposite parties for a sum of Rs.1,80,000/-.  As seen from Ex.B1 application of the deceased insured he has paid Rs.12,000/- by way of cheque on 10-11-08 for the policy and that accordingly opposite party has issued policy under Ex.B2 with effect from 18-11-08 and that on 09-01-09 complainant died due to renal failure.  Thus the deceased insured died within two months from the date of commencement of policy due to renal failure.  It is argued on behalf of opposite party that renal failure does not occur in a short span of time.  As the deceased was suffering with the Kidney problem for a long time, she died due to renal failure on 09-01-09 within a short span of two months after taking policy and that she has not mentioned in her application about the Kidney problem and that thereby suppressed the material fact about her health condition.  As seen from Ex.B8 letter of claimant that her mother was treated by a doctor at Ponnur namely Dr.P.Raja Rao for her kidney problem and used medicines and that they have acquaintance with the said doctor for the last 10 years. 

                Further it is argued on behalf of opposite parties that the deceased insured falsely given her date of birth as 10-12-1958 in her application and furnished a declaration before a notary in support thereof. As seen from Ex.B9 declaration of the insured deceased before a notary, she declared that her date of birth is 10-12-1958 and her present age is 49 years as on 31-10-08, the date of declaration.     Subsequent to the death of insured, the claimant has submitted the identity card issued by Election Commission of India vide Ex.B7, wherein the age of the deceased insured as on 01-01-95 is noted as 40 years.  According to it the age of insured deceased is 53 years by the date of application to the policy.

                The earlier document i.e., identity card issued by Election Commission (Ex.B7) as already stated above shows the age of insured as 53 years as on the date of application to the policy but she has given declaration under Ex.B9 stating that her date of birth is           10-12-58 and her age is 49 years as on 31-10-08.  Complainant in support of his case relied on the ration card Ex.A9 wherein the age of deceased insured shown as 50 years.  As seen from Ex.A9 ration card, the age of insured Koteswaramma is shown as 50 years.  This household card Ex.A9 was issued on 21-02-09 i.e., subsequent to the death of deceased.  Therefore much reliance cannot be placed on the ration card.  The date of birth and the age mentioned by the deceased in her application is not tallying with the earlier document Ex.B7 i.e., identity card of Election Commission issued to the deceased.  Moreover her health condition regarding kidney was also not noted in the application of deceased insured. 

                The learned counsel for complainant argued that the date of birth contained in the identity card issued by Election Commission of India to the insured is not a conclusive proof and relied on a decision reported in AIR 2004 Supreme Court 230.  While dealing with the Electoral role and Election Commission identity card, it was observed that “the date of birth of a voter contained in the voter list and election identity card issued by Election Commission of India is not conclusive.  They are recorded as per statement made by the person concerned.” Contrary to the earlier document Ex.B7, the complainant has not produced sufficient evidence in order to show that the date of birth mentioned in her declaration before a notary is correct.  Further the complainant has produced Ex.A9 household card in support of his contention that the deceased insured is aged 50 years.  The said Ex.A9 household card as already stated above was issued on 21-02-09 subsequent to the death of insured deceased.  Therefore, reliance cannot be placed on the said household card Ex.A9.  Therefore, the above decision relied on by the counsel for complainant is in no way helpful to the case of complainant.

                The counsel for opposite party in support of his case relied on a decision reported in IV (2010) CPJ 86 (NC) between Kokilaben Narendrabhai Patel Vs. Life Insurance Corporation of India

                Consumer Protection Act, 1986 – Sections 2(1)(g), 21(b) – Insurance Act, 1938 – Section 45 – Life Insurance – Suppression of material facts – Claim repudiated – Insured died a pre-mature death – Complainant/wife lodged a claim with opposite party – Opposite party repudiated claim – Insured did not disclose that he was suffering from Enteric Fever 11 months prior of taking policy – This amounts to suppression of material facts – District Forum allowed the complaint – State Commission set aside Fora’s order – Hence revision – Contract of insurance is based on utmost good faith – Statement given by the insured in proposal form as to his state of health was incorrect – Clear suppression of material facts – Repudiation justified – State Commission order upheld.         

                Ex.B1 application of deceased insured does not disclose about her kidney problem.  Thus as already discussed above, it can be safely concluded that the material facts i.e., the health condition of insured deceased i.e., about the kidney problem and the correct age of the deceased are suppressed by the deceased at the time of applying for policy.  As seen from Ex.A5 letter addressed by opposite party to claimant, it was mentioned that basing on the principles of utmost good faith, the policy was issued and any non-disclosure or misrepresentation in the application form renders contract voidable at the option of insurer and that therefore they are unable to admit liability due to non-disclosure of material facts and treated the policy as void ab-initio and the fund value of the policy i.e., Rs.9369/- was returned to the claimant by way of cheque and the same was returned by claimant to opposite party.  Under those circumstances of case, we cannot find deficiency of service on the part of opposite parties.  Accordingly this issue is answered.

                In the result, the complaint is dismissed without costs.  

Typed to my dictation by the Junior Steno, corrected by us and pronounced in the open Forum, this the 29^th day of March, 2011.

          MEMBER                                  MEMBER                           PRESIDENT         

APPENDIX OF EVIDENCE

No oral evidence is adduced on either side

                                        DOCUMENTS MARKED

For Complainant:

ForOpposite Parties:                                                                                        

                                                                                               PRESIDENT