AT  HYDERABAD.

F.A. 433/2008 against C.C. 43/2007,  Dist. Forum, Tirupathi.  

Between:

Bajaj Allianz  Life Insurance Company Ltd.

Rep. by its Branch Manager

D.No. 18-1-502/B, IInd Floor

Opp. S.B.I., K.T. Road

Tirupathi.                                                    ***                           Appellant/

            O.P. No. 1   

                                                                   And

1. Aruna, W/o. Late. B. V. Nagaghushanam

2. B.V. Sreekanth, S/o. Late. B. V. Nagaghushanam

3. B. Sai Priya, (Minor), D/o. Late. B. V. Nagaghushanam

4. B. V. Dilip, (Minor),  S/o. Late. B. V. Nagaghushanam

R3 & R4 being minors rep. by R1

All are R/o. 11-149-2, Bugga Street

Renigunta,  (Post & Mandal)

Chittoor Dist.                                              ***                         Respondents/

                                                                                                Complainants.

5. Syndicate Bank

Rep. by its Branch Manager

Tiruchanur Branch,

Tirupathi.

(R5 is not a necessary party)                      ***                         Respondent/

                                                                                                O.P. No. 2 

Counsel for the  Appellant:                         M/s.  Srinivas Karra

Counsel for the  Respondent:                     M/s. M. Ramgopal Reddy  

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

                                                                   &

                                 SMT. M. SHREESHA, MEMBER.
                                                         

THURSDAY, THIS THE  TWENTY SECOND DAY OF  JULY TWO THOUSAND TEN

ORAL ORDER:  (Per Hon’ble Sri Justice D.Appa Rao, President.)

***

1)                This is an appeal preferred by  R1 insurance company against the order of the Dist. Forum  directing it to pay  Rs. 2,50,000/- together with damages of Rs. 5,000/- and costs of Rs. 2,000/-.

2)                The case of the complainant  in brief is that  complainant No. 1 is the wife and complainant Nos. 2 to 4  are children  of late   B. V. Nagabhushanam who had taken a policy  from the appellant for a sum of Rs. 2,50,000/-  with benefit commencing from  the year 2003.  Apart from  this the above said policy  also covers  the loan borrowed by the  assured from  R2 Syndicate Bank  on condition  that  he had to pay monthly instalments regularly, and if  the borrower dies the insurance company would clear off  the loan.    The assured had availed housing loan of Rs. 2, 50,000/- on 1.4.2003 from R2 bank and was paying  instalments regularly.  While so, on 9.12.2005 when he went to Tirupathi on his official work  he fell down while he was on duty and his colleagues shifted him to   Railway Hospital, Renugunta where the doctors after examining him declared him as  dead.   It was  due to heart attack.    When R2 demanded to clear the loan, the complainant while submitting all the records sought the amounts and requested to clear the loan.  The appellant by its letter repudiated the claim on the ground that he was suffering from diabetes mellitus for the last 6 years, and that he had suppressed the said fact.    In fact the appellant after satisfying with his health condition issued the policy.    There was no suppression.  He died of heart attack.   Therefore the complainants claimed the amounts covered under the policy together with interest, damages and costs. 

3)                The appellant did not choose to contest the matter and it was set-exparte. 

4)                R2 bank resisted the case. While admitting that late B.V. Nagabhushanam availed housing loan from it and coverage of insurance policy in case of death of assured during subsistence of the policy, alleged that as soon as it received the proposal to settle the claim, it had directed the same to the insurance company.   It was not concerned with the repudiation of claim by the appellant.   They were not aware of health condition of the diseased.  

In fact it was not a necessary party.   Since the policy obtained by deceased also serves the security interests of the bank, it is entitled to receive the insurance amount directly from the appellant for the death of the deceased.   An amount of Rs. 2,38,021/- was outstanding  as on  23.5.2007.    Therefore, it prayed for dismissal of the complaint with costs.

5)                The complainants in proof of their case filed the affidavit evidence of complainant No. 1 and got Exs. A1 to A11 marked while R2 filed  Ex. B1 statement of loan account.

6)                The Dist. Forum after considering the evidence placed on record opined that  there is no proof that  the deceased was suffering from diabetes mellitus  at the time of taking of the policy and that there is a categorical mention  that he died of  heart attack.    The appellant has not adduced any evidence  in this regard, and therefore directed it to pay Rs. 2,50,000/- together with damages of Rs. 5,000/- and costs of Rs. 2,000/-.

7)                Aggrieved by the said decision, the appellant  insurance company preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.    It ought to have seen that the assured admittedly suffered from  diabetes mellitus and he did not disclose in his proposal and as such policy vitiates for suppression of material fact.   In Exs. A3 & A5  the very complainant had admitted that  he suffered from diabetes mellitus.  Therefore it prayed that the award be set-aside. 

8.                The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

9)                It is an undisputed fact that the deceased B. V. Nagabhushanam worked as  technician  took an insurance  policy from the appellant  for  assured sum of Rs. 2,50,000/- and during the subsistence of the policy  he died on 9.12.2005 due to heart attack.   Though the complainant alleged that the policy was given after satisfying with his health condition alleging that the agent of the insurer got the insured examined through its panel doctor and based on the certificate given by him, the Administrative Officer subscribed his signature and finally insurance policy was given,  the insurance company did not controvert the said fact.  As we have earlier pointed out the appellant did not choose to contest the matter  by filing counter.    As we could see that the claim was repudiated on the ground that the deceased was suffering from diabetes mellitus for the last 6 years, and was undergoing treatment.   No evidence whatsoever was filed to substantiate the said fact by the appellant.   This fact was culled out from the claim made by the complainant under letter Ex. A3 wherein she stated that her husband was suffering from diabetes mellitus for the last 6 years.  The fact that she also  stated that primary cause of death was mentioned as ‘myo-cordial  infraction’ due to heart attack and nothing to do with  diabetes mellitus.  The appellant for the reasons best known did not  file the entire record pertaining to the assured up to the issuance of policy.    It is not difficult to fathom  the reason.  Obviously   it would reveal that their own doctor  had confirmed the health status  of the assured, basing on which policy was given.  It intends to take advantage of the fact noted in one of the replies Ex. A3 to  repudiate  the claim.    There is no proof that sudden death of assured due to heart attack was trigged due to diabetes mellitus.    There is no expert evidence in this regard to state that the death was due to diabetes mellitus.   There is no mention  or evidence to show that diabetes has direct nexus with ultimate cause of death due to heart attack.   The suppression if any should be material fact  and not  all inconsequential facts. 

10)              The Dist. Forum after considering the evidence placed on record opined that the repudiation was unjust and directed the appellant to pay the said amount.  When the appellant did not choose to contest, nor even explained as to why it could not contest, it is too late a day to contend that the assured had suppressed his ailment and therefore the repudiation was just.   The complainant and her children obviously unaware of these legal niceties had given reply in Ex. A3 without knowing that their own reply would be used to repudiate the claim.    The appellant insurance company without checking these facts   ought not to have repudiated the claim.    At  some times the parties would be labouring under mis-conception.  At any rate, the repudiation was unjust.    We do not see any merits in the appeal. 

11)               In the result the appeal is dismissed with costs computed at Rs. 5,000/-.  Time for compliance four weeks. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.  22. 07.  2010.

*pnr

“UP LOAD – O.K.”