O R D E R Sri. Santhosh Kesavanath P., President. Case of the petitioner's is as follows: Petitioner as the beneficiary filed this complaint. Petitioner's sister Elsamma Mathew had taken a policy, at the instance of the second opposite party, by paying premium amounting Rs. 15433/-. Later on 1..12..2005 Elsamma Mathew died, the petitioner prefered a claim for compensation of the insured amount to the first opposite party along with the details for processing the claim. The first opposite party repudiated the claim for the reason that insured was under treatment for carcinoma ovary from 2000 and that fact was not disclosed by the petitioner at the time of joining the policy. So as per law she is not entitled for compensation. The petitioner states that repudiation of the -2- claim is without any legal basis and is a clear deficiency of service. So, she prays for allowing the amount covered by the policy along with 12% interest and she claims Rs. 5,000/- as compensation along with cost of the proceedings. The first opposite party entered appearance filed version contenting that the petition is not maintainable. The opposite party contented that a contract of insurance is a contract uberrima fidae and it is of utmost importance and the insured has a bounden duty to state the material facts in the application. But here the insured, Smt. Elsamma Mathew had suppressed material fact that she was suffering from Carcinoma Ovary. According to 1st opposite party in the instant case there is clear misrepresentation, non disclosure and suppression of material facts so the claim of the petitioner is rightly repudiated. First opposite party contented that the insured apply for the Met Smart policy of insurance from the opposite party on 14th November 2005 and the policy was issued on November, 22nd 2005 and on 1st December 2005 the insurer was died ie. within 8 days of issue of policy. According to the opposite party on perusal of the documents filed in support of the claim it was revealed that the insured was suffering from carcinoma ovary from 2000. On further investigation and enquiry by the first opposite party to the attending physician he stated that the insured was suffering from Carcinoma Ovary for the last 5 years and was suffering from Asceites and Oesophageal Ulcer. So the opposite party contented that the claim was repudiated on the ground that has petitioner was suppressed the material fact. So, according to 1st opposite party. The repudiation of the claim is legal. So, 1st opposite party prays for the dismissal of the petition with their cost. -3- 2nd opposite party filed version contenting that they are not necessary party to the proceedings. Actually Geojith commodities is the corporate agent of the first respondent. The second respondent has no connection with petitioner and she is not known to the second respondent. According to the second opposite party no deficiency in service can be attributed against them. So, they pray for dismissal of the petition with their costs. Points for determination are: i) Whether there is deficiency in service on the part of the opposite party? ii) Reliefs and costs. Evidence in this case consists of the affidavit filed by both parties and Ext. A1 to A4 documents on the side of the petitioner and Ext. B1 to B7 documents on the side of the opposite party and oral testimony evidence of DW1 to DW3 witnesses. Point No. 1 Material question to be decided in this case is whether any deficiency in service can be attributed against the first opposite party with regard to the repudiation of the claim preferred by the petitioner. The opposite party produced the repudiation letter dtd: 17..1..2006 issued to the petitioner. The said document is marked as Ext. B5. In Ext. B5 it was stated that the claim cannot be admitted because the insured has suppressed the material fact that she was suffering from carcinoma ovary from the year 2000 and also at the time of joining of the above policy on 14..11..2005. The petitioner produced the last attending physician statement with regard to the proof of death. The said document is marked as Ext. A3. The last attending doctor was, examined as DW1. DW1 stated that the disease of the petitioner was diagnosed in the year 2000 and the duration of the -4- illness was for 5 years. The DW1 has also deposed that the patient was referred by one Dr. George Thomas.The said doctor was examined as DW2. DW2 produced the hospital records of Pushpagiri hospital and said documents is marked as Ext. C1 (a). In the C1(a) it was mentioned that the Chemotherappy and surgery was conducted at Caritas hospital. The doctor who examined the insured, at the Caritas Hospital, is examined as DW3 and the records with regard to the treatment is marked as Ext. C2. DW3 disposed that on 16..1..2004 operation was done to the insured. The counsel for the opposite party argued that the patient who was examined at the Caritas Hospital was one Lissa George, Polackal, Changanacherry and said patient has no connection with the insured Elsamma Mathew. Ext. C1 the outpatient medical records of the Pushpagiri hospital is produced and is marked as Ext. C1. In Ext. C1 it can be seen that one George Kunju Sebastian who was alleged to be husband of Lissa George had given a letter to the director Pushpagiri Medical College Hospital, Thiruvalla requesting the hospital authorities to change the name of his wife from Lissa George to Elsamma Mathew. So, said argument of the learned counsel for the opposite party is not acceptable. Considering the entire facts come out in evidence we are of the opinion that the insured had suppressed the material facts. The contract of insurance has been a contract of utter good faith. In this case, in our view, the insured has knowingly suppressed the correct information about her personal health and disease suffered. In our view first opposite party was right in repudiating the claim and no deficiency can be attributed against the first opposite party for repudiating the claim, So, point No. 1 is found accordingly. -5- Point No. 2 In view of finding in point No. 1, the petition is to be dismissed. Considering the facts and circumstances of the case. No cost and compensation is ordered. Dictated by me transcribed by the Confidential Assistant corrected by me and Pronounced in the Open Forum on this the 29th day of August, 2008.
......................Bindhu M Thomas ......................Santhosh Kesava Nath P
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