Present: 1. P.K. Sasi, President.
2. Smt.Sheena.V.V., Member.
3. Sri. M.P. Chandrakumar., Member.
30th day of March 2015
C.C.161/10 filed on 26.3.10
Complainant: Bindu Johnson, W/o. Late Johnson, Puthanchirakkaran (H), Varandarapilly P.O., Thrissur.
(By Adv. Seby J. Pulleli)
Opposite Paries: 1. M/s. Bajaj Allianz Life Insurance Co. Ltd., Akshaya Commercial Complex, Bangalore.
2. Branch Manager, Bajaj Allianz Life Insurance Co. Ltd., Near Amala Hospital, Thrissur.
(By Adv. Rajith Davis)
O R D E R
By Sri. M.P. Chandrakumar, Member.
The case is that the husband of the petitioner, who was a head load worker at Ollur, expired on 21-7-05, due to massive SAH brain stem failure and right K.A. Superlinoid Anurysym at Elite Mission Hospital, Thrissur. The deceased had taken a life insurance policy No.93322615 from the respondents, of which the petitioner was the nominee and hence was a consumer of the respondents. The petitioner had incurred medical expense of Rs.1,25,000/- at the Hospital and hence applied for the claim, before the respondents. But the claim was rejected by the respondents stating that the deceased Johnson expired, not due to the above disease but due to Tuberculosis. The petitioner further states that there is no relation/connection between the reasons mentioned in the rejection letter and the death summary issued by Elite Mission Hospital. There is no antecedent of brain stm failure during the life time of the deceased Johnson. At the time of taking the policy, the petitioner had revealed all material facts to the agent. Also, all material facts were revealed to the doctor, who conducted the medical check up, as insisted by the agent. The yearly premium was remitted through the agent, to the respondent. Also, the policy was issued to the deceased through the agent. As such, the reasons stated in the rejection letter is false and hence the petitioner, being the nominee is entitled to get an amount of Rs.4,08,000/-from the respondent, being the sum assured as per the policy. There is deficiency of service on the part of the respondent, in rejecting the claim and hence the complaint filed.
2. The respondents, in the version filed, has represented that the policy taken by the deceased, commenced on 27.3.08 and within 16 months, the policy holder died. On an investigation about the death, by an independent agency, it was revealed that the deceased had other pre-existing medical issues and was under treatment from 18/3/07 on wards, at West Fort Hospital, Thrissur, due to right sided pneumothrax with brancho petrusal fistula T.B. etiology on ICT epirical ATT. As per the medical certificate issued by Dr. Anu Dutt of Elite Medical Mission Hospital, the cause of death was right ICA Supraclinodal Anversmal bleed, brain stem failure. So, the earlier disease caused/stimulated the present cause of death. The policy holder has not disclosed these pre-existing medical issues, while taking the policy. The deceased had thus suppressed vital facts in the proposal forum and solely believing that the details are true, the policy had been issued. As per Clause 9 of the policy, in case of non-disclosure or fraud or misrepresentation in the proposal/personal statement, the respondent company can repudiate the claim. The policy was accepted by the company only because of the misrepresentation of the insurer. That is why, the respondents repudiated the death claim, which was for cogent, reasonable and legal grounds. As per clause 9 of policy conditions if there is non-disclosure, it is at the discretion of the respondent to consider the claim of the petitioner. As such, there is no irregularity in repudiating the claim and also no deficiency of service, on the side of the respondent. Hence the complaint be dismissed.
3. The points for consideration are :
1. Is there any deficiency of service and unfair trade practice on the part of the respondents?
2. If so, what compensation and costs?
4. Evidence consists of oral testimony of RW1 and RW2, Exhibits P1 and P2, Ext. R1 to R10 and Ext. X1 marked. No oral evidence adduced by the petitioner.
5. The docuements produced by the petitioner, marked as P1 &P2, are the following .
1. Ext. P1 is the letter dated 4-11-09 of the respondent regarding the rejection of the claim.
2. Ext. P2 is the death summary dated 21-7-2009 of Elite Mission Hospital, Thrissur.
6. The documents produced by the respondent, marked as Ext. R1 to R10 are as follows.
1. Ext. R1 is the letter dated 4-11-09 of the respondent to the petitioner, intimating the rejection of the claim.
2. Ext. R2 is the letter dated 19-10-10 of the respondent to the petitioner, intimating the decision of the claim review committee on the appeal for re-examination of the rejection of the claim.
3. Ext. R3 is the policy proposal form of late Sri.Johnson.
4. Ext. R4 is the policy No.093322615 issued by the respondent to the deceased Johnson.
5. Ext. R5 is the treatment record from Elite Mission Hospital.
6. Ext. R6 is the copy of the death summary of Sri. Johnson, issued by the Elite Mission Hospital.
7. Ext. R7 is the copy of points 14 and 15, Declaration of the insured and insurance consultant’s report.
8. Ext. R8 is the investigation report no.335/9-10 dated 10-10-2009 of Lavanya & Company, Bangalore.
9. Ext. R9 is the Discharge Summary dated 1-4-07 of West Fort High Tech Hospital Ltd, Thrissur.
10. Ext. R10 is the authorization letter dated 1-1-2014 of the respondents, authorizing Sri. Aravind , A.M. to represent the company.
7. Ext. X1 is the case sheet summoned from West Fort Hospital, which contains the treatment details of the deceased Johnson. The deposition of RW1, contains the details deposed by Sri. Aravind, the A.M. of the company at the time of cross examination on 17/1/2014. The deposition of RW2, contains the details deposed by Dr. Judo J. Vachaparambil, the doctor of West Fort Hospital, who had treated the deceased Johnson from 18-3-2007 to 1/4/2007 and on 3-4-07 at the Hospital.
8. Both have filed version, argument notes and counter affidavit in detail.
9. The Forum has gone in depth into the details of the case and has also perused all the connected records and would wish to comment the following.
1. The records show that the petitioner had filed an appeal before the Claims Review Committee, requesting reconsideration of the decision of the Thrissur branch of the respondent, rejecting the claim. However, the decision of the committee is not seen communicated to the petitioner, either directly or through the respondents. Instead, as per Ext. P2, the respondent has communicated a letter to the petitioner, in which it is mentioned that the committee has also rejected the request. Natural justice demands that the committee should have communicated its decision’s copy, either directly or through the respondents. However, this is not seen done and hence natural justice is seen denied to the petitioner.
2. The Forum considers that a committee likes the ‘claims review committee is a responsible body of experts, capable of going into depth into the request made. Naturally, the head of the committee should be well aware of the fact that its decision copy should be communicated either directly to the appellant or through the authorized signatory of the Thrissur branch. The Forum feels that the committee might have taken a decision to communicate the same. However, it is seen that the respondents, vide Ext. R2, has sent a letter to the petitioner informing that the claims review committee has rejected the letter. The Forum feels that the respondents have something to hide or not to be disclosed. Also, the fact that decision of the claims review committee, which is an important document, has not been produced, at least as an evidence before the Forum, enhances the doubt. Had this not been the position, the respondent, who has taken too much initiative to produce ten records as evidence, would definitely have cared to produce this document also and thereby defended their case.
3. The complaint mentions that a Medical Certificate has been produced before the respondents, and it is on the basis of that certificate the policy was issued. The petitioner has stated that he has disclosed all material facts to the doctor including that of the previous medical treatment. Since non disclosure of pre-existing disease is the main reason for rejection of the claim, the above medical certificate is an important document to be verified and assured as to whether the certificate mentions of any disease to the deceased, at the time of inception of the policy. The production of the medical certificate has not been denied by the respondents, at any stage. As such, this document should have been produced by the respondents. However, the fact that the same has not been produced tends the Forum to believe that the respondents have something, not to be disclosed.
4. The claim is seen rejected on grounds that the deceased Johnson has suppressed the fact of his pre-existing disease, while filing the proposal form for the policy. However, at the time of the cross-examination, RW2 being the doctor who treated him at the West Fort Hospital, Thrissur has stated that “
These words goes on to prove that the earlier disease has been treated and cured completely more than an year before and thus, the deceased had no pre-existing disease, at the time of taking the policy. These words of the doctor are not seen challenged by the respondents with competing evidence-either oral evidence or documentary evidence. The statement of the doctor also proves that there are no relations between the two diseases, which affected the patient.
5. Only an independent medical expert, specialized in both fields of diseases, can categorically and specifically clarify the position and provide an amicable and clarified decision, acceptable to both since the complaint has been filed, against the decision of the respondents, it was for the respondents to take an initiative in this direction and substantiate their decision. However, the fact that no steps have been taken in the matter by the respondents, compels the Forum to decide that petitioner’s claim is true to facts.
6. Ext. R7 is the part containing questions 14& 15, the declaration and also the insurance consultants’ report dated 14-3-08. The insurance consultant has in respect of question No.4-Is the life proposed physically handicapped or having any adverse feature, has answered as ‘No’, which confirms that the applicant has no adverse features. The declaration of the insurance consultant is as follows. I hereby declare that “I have personally seen the applicants and the life to be insured. On the basis of my independent enquiries, I certify that the particulars are the same as stated in the proposal form….”. The above Exhibit thus proves that the company was satisfied that the petitioner had no pre-existing diseases, on the basis of the report and declaration of the insurance consultant.
10. On the basis of the above observations, we are compelled to come to the decision that the argument of the respondents that the deceased had pre-existing disease at the time of taking the policy and that the above disease is the reason for the death of the deceased has not been proved by the respondents. Natural justice is also been denied, besides the failure on the part of the respondents to produce certain basic records before the Forum. It is a fact that law imposes a greater duty to the insurer also, to make a total, truthful disclosure of all the material circumstances and evidences included in the contract before the Forum even without being asked. Neither has it been proved nor the Forum could find that the deceased/insured or the petitioner has committed any case of non-disclosure or fraud or mis representation. If any, it was for the respondent to prove the same. However, the respondent, instead of proving the same with substantial evidences, has ever failed to produce even the available evidences/documents. The Forum has therefore, to come to the conclusion that there is deficiency of service and unfair trade practice on the part of the respondents and that the grievance of the petitioner needs redressal.
11. In the result, the complaint is allowed. The respondents are directed to pay Rs.4,08,000/- (Rupees Four lakh eight thousand only), being the sum assured as per the policy to the petitioner, being the eligible nominee, with 12% interest from 21-7-2009, the date of death of the insurer. Since the petitioner has filed the complaint in 2009 and has been fighting against the decision of the respondents for the last several years we are compelled to order Rs.10,000/- (Rupees ten thousand only) as costs to the petitioner. The above orders should be complied within a month of the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this 30th day of March 2015.
Sd/- Sd/- Sd/-
M.P. Chandrakumar Sheena V.V. P.K. Sasi
Member Member President
Appendix
Complainant’s Exhibits:
Ext. P1 – letter
Ext. P2 – death summary
Respondent’s Exhibits:
Ext. R1 –Letter
Ext. R2 – Letter
Ext. R3 –policy proposal form
Ext. R4 – policy
Ext. R5-treatment record
Ext. R6 – copy of death summary
Ext R7 – copy of points
Ext. R8 – investigation report
Ext. R9 –discharge summary
Ext. R10 – authorization letter
Respondent’s Witnesses:
RW1- Aravind V.
