F.A.No.900/2008 AGAINST C.C.No.27/2008, DISTRICT FORUM, KARIMNAGAR

Between:

D.Raja Mouli S/o.late Ramalingaiah

Aged 74 years, Occ:Nil,

R/o.8-3-71/K, Thirumalnagar,

Karimnagar.                                                                                                        Appellant/

                                                                                                                             Complainant

          And

1. The Zonal Manager, LIC of India

    SC Zonal Office, Saifabad, Hyderabad.

2. The Senior Divisional Manager,

    D.O.1-7-105, Jeevan Prakash,

    Dr.B.R.Ambedkar Stadium Road,

    Karimnagar.

3. The Branch Manager,

    LIC of India, Jeevan Jyothi, Behind

    I town Police Station Branch-I,

    Karimnagar.

4. Mr.Thalla Ravinder, LIC Agent,

    H.No.8-3-251, Ramachandrapur Colony,

    Near Peddamma Temple, Bhagathnagar

    Locality, Karimnagar.                                                                                      Respondents/                                                                                                                                                                             Opp.parties

Counsel for the Appellant: M/s.J.Prabhakar

Counsel for the Respondents: MrM.Venkata Ramana Reddy-R1- R3

                                                   Mr.M.Ram Gopal Reddy-R4.

QUORUM:   THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

AND

SMT.M.SHREESHA,  MEMBER

.

THURSDAY, THE TWENTY FIFTH DAY OF NOVEMBER,

TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice Sri D.Appa Rao, President)
***

The appellant is the unsuccessful complainant.

The case of the complainant in brief is that his son, D.Srinivas, had taken an insurance policy for Rs.5,00,000/- commencing the period from 28-4-2006 where under the nominee would be entitled to receive double the sum assured in case of his death before the expiry of the period.   While so he died by 29-8-2006 due to ill health.  He filed all the certificates including death certificate, medical certificate etc.,  However, the insurance company repudiated the claim alleging that he was suffering from thymic cancer and was under treatment since November,2004.  In fact prior to the issuance of the policy, the Medical Officer examined the deceased and in turn opined that he was suffering from fever and jaundice and had there been a chronic ailment like cancer, it could have been noticed.  The complainant submitted that he visited the office of the opposite parties number of times and in that process, had an injury and was hospitalized in Yashoda hospital and spent Rs.50,000/-.  Alleging that the repudiation was unjust, the complainant got issued a registered notice for which the insurance company gave a reply.  Therefore, he filed the complaint claiming Rs.10,00,000/- together with interest at 18% p.a. together with compensation and  treatment charges of Rs.50,000/- each and costs.

The insurance company while admitting the issuance of the policy, alleged that it had issued the policy under good faith not knowing that he was suffering from caner.   After receiving the claim, a detailed investigation was made and it was found that he had suffered from cancer and admitted in Apollo hospital and therefore he suppressed the material facts.  The assured was suffering from cancer from September, 2004 till his death and was under treatment with Apollo hospital.  Based on the record, the claim was repudiated and therefore prayed for dismissal of the complaint with costs.

Opposite party No.4, agent, also resisted the case.  He stated that at the time when the policy was taken, he was sent for medical check up, however, no diagnostic tests were conducted and only on good faith and on the information furnished by the assured, the policy was issued.  In fact, he was admitted in Apollo hospital on 25-9-2004 and underwent Thoractotamy and Excision of mass on 06-11-2004 and therefore he prayed for dismissal of the complaint.

The complainant in proof of his case filed his affidavit evidence and got Exs.A1 to A42 marked while the opposite party insurance company filed affidavit evidence of its Administrative Officer and got Exs.B1 to B9 marked.

The District Forum after considering the evidence placed on record opined that the record issued by the Apollo hospital would show that he was suffering from cancer while in the proposal form, Ex.B2, he did not mention the said ailment and it suppression of material and therefore dismissed the complaint.

Aggrieved by the said order, the complainant preferred this appeal contending that there was no suppression of material fact.  It ought to have seen that earlier when the assured was examined by a panel doctor of the insurance company, what all he stated was that the assured suffered from Jaundice and fever.  There was no mention that he had an ailment of cancer. There was no suppression in fact and there was no proof that he had taken treatment and therefore prayed to allow the appeal.

The point that arises for consideration is whether the order of the District Forum is vitiated by mis-appreciation of fact or law in that regard?

It is an undisputed fact that the respondent insurance company issued a policy in favour of the assured commencing from 28-4-2006 for Rs.10,00,000/-.  It is also in dispute that he was aged 25 years.  The complainant alleges that his son died of Jaundice and fever evidenced by Ex.A12 medical certificate.  The insurance company filed medical and discharge record maintained by Apollo hospital wherein it was recorded that the deceased was a KNOWN CASE OF MALIGNANT THYMOMA WITH MYASTHENIA GRAVIS POST OPERATIVE, POST CHEMOTHERAPY, POST RADIOTHERAPY WITH LUNG METASTASES ON PALLIATIVE ORAL CHEMOTHERAPY.  It may be stated herein that the deceased was earlier admitted in the same hospital and took treatment from 01-10-2004 to 05-10-2004 wherein the diagnosis was THYMOMA STAGE – III WITH MYAESTHEMA GRAVIS.  Despite the fact that the entire medical record maintained by Apollo hospital was filed and marked as Exs.B5 to B9, the complainant did not deny the same by filing affidavit stating that it did not relate to his son.  At the cost of repetition, we may state that the record filed by the insurance company marked as Exs.B5 to B9 was never denied and the said evidence stands unrebutted.  The evidence of the complainant under Exs.A12 was issued two months after the death of the assured by one Dr.V.Srinivas of Hemasri Nursing Home.  It only stated that they had treated the assured for fever and Jaundice for 21 days.  It never stated that the deceased had never suffered from cancer.  There is evidence whatsoever to overrule the evidence filed by the respondents that he never suffered from cancer.  It is settled law that the suppression of major ailments would constitute suppression of material facts.  The complainant in his proposal form, Ex.B2, did not mention that he was suffering from cancer though by then he was suffering from cancer evidenced by Ex.B6.  We do no see any mis-appreciation of facts or law in this regard.  We also do not see any merits in this appeal.

In the result this appeal fails and is accordingly dismissed.  There shall be no order as to costs.     

Sd/-PRESIDENT.

                                                                                                        Sd/-MEMBER.

JM                                                                                                             Dt.25-11-2010