BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 07^th DAY OF NOVEMBER 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to pay her a sum of Rs.5,00,000/- being the sum assured, damages amounting to Rs.1,00,000/- for mental agony, harassment and cost of the litigation.

2. The brief averments made in the complaint are as under:

That the husband of the complainant late A.Thimme Gowda had insured with the OP vide policy No.1200700260626 for a sum assured of Rs.5,00,000/- on 23.01.2007 under a policy term for a period of 60 years, MET smart plus plan and the deceased had paid a sum of Rs.2,083/- per month for a period of 25 months totaling to a sum of Rs.52,075/-.  That the said A. Thimme Gowda was admitted in Sagar Hospital, Jayanagar, Bangalore on 30.11.2008 for the treatment of vision blurring, for distant vision and headache in the back of the head and underwent surgery for brain tumor.  That the said Thimme Gowda succumbed to the surgery and passed away on 04.01.2009.

That the complainant made an application to the OP requesting her to pay a sum insured to her but the OP issued her a cheque for Rs.30,175/- along with covering letter stating that they are not entitled to pay the sum assured as the deceased has not informed about the previous ailment in the application form.  That the said A.Thimme Gowda had earlier suffered Cerebra Vascular accident in the year 2000 which had been completely treated and the ailment to which he succumbed was nothing to do with the earlier ailment and in this regard the certificate issued by the Doctor of Sagar Hospital is very clear.  That the complainant got issued a legal notice dated 02.03.2009 to OP through RPAD and despite service of notice, the OP has failed to comply the demand causing mental agony, harassment and untold hardship to the complainant.  That the OP sent a vague reply refusing to comply the legitimate claim of the complainant.  Therefore, the complainant is claiming a sum of Rs.1,00,000/- from the OP towards the mental agony, harassment and inconvenience caused to her.  That the said Thimme Gowda died intestate leaving behind him the complainant and two minor sons who are attending school and entire burden of maintaining the family is on complainant.  The complainant is a widow and house wife and has no source of income to look after herself and her minor children.

For the aforesaid reasons, the complainant prays for an order directing the OPs to pay a sum of Rs.5,00,000/- being the sum assured with the policy obtained by Late Thimme Gowda together with damages of Rs.1,00,000/- for harassment, inconvenience and mental agony together with litigation cost.

3. The OP in response to the notice issued appeared through their advocate and filed their version admitting the insurance policy obtained by late Thimme Gowda and also admitting the premium paid by him and further contended as under:

That the life assured Sri.A.Thimme Gowda died on 04.01.2009 and since he died within two years from the date of commencement of the policy it resulted into an early claim as per Sec.45 of the Insurance Act and thus investigation was done by the Company.  That the wife of Sri.A Thimme Gowda the nominee in the policy submitted the death certificate and discharge summary of hospital along with other documents for settling the claim.  At this juncture the Company found that the said Thimme Gowda was admitted to Sagar Hospital on 29.11.2008 and at the time of admission to the hospital the said A.Thimme Gowda revealed himself that he had Hemiplegia in the year 2000 and was on T Ecosprin since then and with physiotherapy on and off and was a known case of CVA (Cerebral Vascular Accident).  Thus it indicates that Sri.A Thimme Gowda knew that he was suffering from this ailment since 2000 itself and that was not revealed to the Company at the time of obtaining the proposal.  The attending Consultant Neurologist, Dr.Santhosh Kumar has also stated in his letter to the Company that Sri.A.Thimme Gowda was under his care and he has mentioned in the discharge summary case history that he was suffering from CVA i.e., Cerebral Vascular Accident (left hemiplegia) in 2000.  That the said A.Thimme Gowda suppressed this ailment while obtaining the policy from the company.

The date of application of proposal was on 17.01.2007 and the policy was issued on 23.01.2007.  In the application for Life Insurance in page 5, in para 4.4, the complainant has not disclosed about the previous ailment i.e., CVA (Cerebral Vascular Accident) suffered in 2000 and answered the questionnaires in negative.  Even in the declaration, the deceased A.Thimme Gowda did not disclose about Cerebral Vascular Accident (CVA) with which he was suffering even on the date of obtaining the policy.  That the life assured has defrauded the Company to make benefit by suppressing and withholding the fact that he was suffering from Cerebral Vascular Accident (left hemiplegia) ailment and that he had consulted medical person which was very much essential for the OP to consider the application for issuance of the policy which was the basis for contract of insurance.  That the said A.Thimme Gowda did not reveal the critical illness which he was suffering and has suppressed the material facts at the time of obtaining the policy.  The disclosure at page 13 and condition No.32 of the policy provides for forfeiture of fund value apart from any other action in the event the life assured has failed to disclose full and accurate disclosure of material facts and circumstances regarding his health.  However, the OP instead of forfeiting the entire amount has paid the fund value of Rs.30,175/- to the nominee as a good gesture on 11.02.2009.  Therefore, nothing is payable under this complaint and the said decision is taken by the company after due application of mind and thus the OP has repudiated the claim based on suppression of material facts and thus has issued the repudiation letter on 12.02.2009.

For the aforesaid reasons, the OP prays for dismissal of the complaint.

4. The complainant to substantiate the allegations made in the complaint filed her affidavit evidence in lieu of oral evidence.  Written arguments were also filed on behalf of the complainant.  The OP in support of their averments also filed the affidavit evidence of one Sri.Anil P.M, Associate Director of MET Life Insurance Company Ltd.  Written arguments were also filed on behalf of the OP.

5. The points that arise for our determination in this case are as under:

6. Perused the allegations made in the complaint, the sworn testimony of the complainant and the copy of the policy and other documents submitted by the complainant.  Also perused the averments made in the version filed, sworn testimony of the OP and documents produced on their behalf.  Also perused the written submissions submitted by both the parties and heard the oral arguments as well.

7. Our answer to the above points are as under:

REASONS

8.  Admittedly Sri.A.Thimme Gowda, the husband of the complainant had obtained a policy from OP under “MET Smart Plus” for a sum assured of Rs.5,00,000/-.  The policy was issued effective from 23.01.2007 and premium of Rs.2,083/- was to be paid monthly to the OP Company.  The proposal for the policy was filed by the said Sri.A.Thimme Gowda on 17.01.2007 and thereafter the policy was issued on 23.01.2007 with the commencement of the risk from 23.01.2007.  Admittedly, the said A.Thimme Gowda was admitted to Sagar Hospital, Jayanagar at Bangalore on 30.11.2008 for treatment of vision blurring for distant vision and headache at the back of his head and later he underwent a surgery for brain tumor and he succumbed to the said ailment on 04.01.2009.  After the death of her husband, the complainant who is nominee in the policy, submitted a claim to the OP together with death certificate and discharge summary of hospital for settling the claim.  During the scrutiny of the discharge summary submitted by the complainant, it was noticed by the OP that at the time of his admission to the Sagar Hospital on 07.12.2008 the said Sri.Thimme Gowda revealed himself that he had left hemiplegia in the year 2000 and was on T-Ecosprin since then and with physiotherapy on and off, was a known case of CVA.  Since the life assured died within 2 years from the date of commencement of the policy, the same resulted into an early claim as per Sec.45 of the Insurance Act and therefore a investigation was undertaken by the OP Company.

9. During the course of the verification of the policy documents of deceased A.Thimme Gowda, it was found by the OP that the life assured had suppressed as to his Cerebral Vascular Accident in the year 2000 and also continued treatment for the same till the time of his death.  During the process of investigation, the OP Company sent questionnaire to Dr.Santhosh Kumar, Consultant Neurologist at Sagar Hospital, Jayanagar, Bangalore who treated the life assured on his admission to the said hospital on 30.11.2008.  The said Dr.Santhosh Kumar has recorded the history of the Life Assured at the time of his admission and he himself has issued the discharge summary.  The questionnaire as well as the answer to the said questionnaires dated 13.10.2009 submitted by Dr.Santhosh Kumar have been produced.  In reply to the said questionnaire the said Dr.Santhosh Kumar has stated that he recorded the history of the Life Assured at the time of his admission to the hospital as revealed by the patient himself.  The said doctor has further stated that on the information given by the patient, he has recorded in the history that the said patient is known case of CVA and he is suffering from Left Hemiplegia since 8 years.  The doctor further states that the CVA and left hemiplegia is known as a “STROKE” in the common language.  He also states that the tablet T Ecosprin 150 mg is given from the treatment of “STROKE”.  Thus from the answers given by Dr.Santhosh Kumar to the questionnaire issued to him by OP establishes that the Life Assured suffered a STROKE in the year 2000 and was on T Ecosprin for the same even when he was admitted to Sagar Hospital on 30.11.2008.

10. The Learned Advocate for the OP argued that the Life Assured Sri.A.Thimme Gowda has suppressed the fact that he was suffering from CVA (Cerebral Vascular Accident) in the year 2000, much before the issue of the policy.  The learned advocate for the OP took us through page-5, para.4.4 of the policy document which deals about medical details - 

11. In para.4.4 the Life Assured has been asked as to whether he had symptoms of, been treated for, been advised to receive treatment or had any investigations for any of the following. (The below conditions are provided as examples only and would request you to disclose all disorders, disease, disturbance or other conditions, which are, or might be relevant.  If answer for any of the questions in this section is “YES”, please provide all medical reports if available).

Column 2) Seizures, strokes, Paralysis, Epilepsy, Parkinson’s, Multiple Sclerosis or any other Disorder of the Brain or Nervous System - No.

12. Thus, it is apparent that Sri.A.Thimme Gowda has answered the above question in the Negative, knowing fully well that he had suffered CVA in Left Hemiplegia.  The learned advocate for the OP further argued that, if at all the Life Assured had disclosed regarding the ailment to the OP, the company would have sought for medical reports and an appropriate decision would have been taken by the Company for issuance of the policy.  The learned advocate also brought to our notice that the declaration in the application signed by the Life Assured stating that the information furnished by him is after fully understanding the contents thereof and he has not withheld any information.  She also drew our attention to the agreement clause in the policy document which reads as under:

Agreement

“I also do hereby agree that – sub-clause No.1,2,3 & 4 states that,

1. My statements and this declaration shall be the basis of any policy issued.

2. If non-disclosure of facts OR any un-true statement be contained in this Application, the policy contract shall be null and void and all the money which have been paid in respect there of shall stand forfeited to the company.

3. If after submission of this Application and before issue of the policy, there is any change in my general health, occupation, financial position, shall forthwith inform the company in writing.

4. Commencement of risk will not take effect until the policy issued by the insurer.

13. Admittedly, the Life Assured was a literate person and was working in Production Department of MICO BOSCH Company.  It appears that, after reading and knowing the contents of the proposal application, he has signed the proposal application.  The complainant also admits that her husband was suffering with “STROKE” since year 2000 but however she claims that after the necessary treatment he had completely recovered and the death of her husband is nothing to do with the CVA (Cerebral Vascular Accident).  Admittedly, the Life Assured was suffering from Left Temporal Parietal Glioblastoma which in common language called as ‘brain-tumor’.  Admittedly, he died of the ‘brain-tumor’ and not for any other ailment.  Dr.Santhosh Kumar also states that the death is due to brain tumor and CVA (Cerebral Vascular Accident) is nothing to do with the death of Life Assured.

14. Now the question is as to whether the OP Company is justified in repudiating the claim of the complainant on the ground of suppression of ailment with which the life assured was suffering from the year 2000.  The learned advocate for the OP placed reliance on a judgment rendered by Hon’ble Karnataka State Consumer Disputes Redressal Commission in case between Smt.Rudramma & others Vs. The Zonal Manager, LIC of India & others and argued that in similar circumstances the Hon’ble State Commission has rejected the appeal filed by the nominee of a life assured upholding the dismissal of the complaint by the District Forum.  Perused the said judgment, the life assured had suppressed about his previous ailment while obtaining a policy from LIC of India, for which he had taken regular treatment as indoor patient.  Though the said ailment was not cause for the death, the Hon’ble State Commission held that the complainants therein are not entitled for benefit under the said policy since the life assured has suppressed the previous ailment while obtaining the policy.

15. The Learned Advocate further placed reliance on a judgment rendered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition No.1935/1999 between the LIC of India V/s. Krishan Chander Sharma.  Perused the said judgment dated 23^rd day of January, 2006.  In the said case, the life assured was a chronic patient of Asthma and allergic bronchitis before proposing for the policy in question and she had taken treatment in the hospital on two occasions as indoor patient.  However, she had suppressed the same while obtaining the policy.  Though the said ailment was not the direct cause of death of life assured, the Hon’ble National Commission upheld the decision of the insurer in repudiating the claim of the complainant therein for suppression of material facts while obtaining the policy by life assured.

16. The ratio laid down in the above cited judgment squarely applies to the facts of the case on hand.  In the instant case on hand, the life assured Sri.A.Thimme Gowda did not disclose to the OP Company about his sufferings with CVA (Left Hemiplegia) in the year 2000 for which he was on medication till the time of his death.  In view of the principles laid down in the above cited judgments, we are of the considered opinion that the complainant is not entitled to the benefit under the policy in question.  The OP is fully justified in repudiating the claim of the complainant.  The order could not be passed within the stipulated time due to heavy pendency.

17. In view of the discussions made above, we proceed to pass the following:     

O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  Parties to bear their own costs.

          Send the copy of the order to both the parties free of costs.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 07^th day of November 2015)

MEMBER                                                             PRESIDENT

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Witnesses examined on behalf of the complainant dated 24.07.2009.

1. Mrs.B.T Saraswathamma,

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party dated 11.08.2009.

1. Sri.Anil P.M.,

Documents produced by the Opposite Party:

MEMBER                                                             PRESIDENT

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