BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 24th day of September 2012
Filed on :07/04/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 194/2011
Between
T.J. Kuriakose, : Complainant
S/o. Late T.K. Joseph, (By Adv. George Cherian
Thachampurath house, Karippaparambil, Karippa-
Pangarapilly P.O., parambil Associates,HB.48,
Mulanthuruthy-682 314. Panampilly Nagar,Kochi-36)
And
M/s. Life Insurance Corporation, : Opposite party
Of India, Jeevan Prakash, (By Adv. P.D. Joseph,
M.G. Road, Ernakulam-682 011. Perayil, Janatha road,
Rep. by its Divisional Manager. Palarivattom,
Cochin-682 025)
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant’s wife late Annamma Kuriakose had availed the following life insurance policies from the opposite party.
a. Policy No. 774218355 dated 24-11-2002 for Rs. 5 lakhs.
b. Policy No. 775501971 dated 25-03-2006 for Rs. 8,25,000/-
c. Policy No. 775375898 dated 25-03-2006 for Rs. One lakh.
Late Annamma was admitted to PVS Hospital, Ernakulam with fever on 19-06-2007 and she died on 20-06-2007 at the age of 48 years. The complainant submitted insurance claim application dated 04-08-2007 for the 2nd and 3rd policies stated above. The opposite party repudiated the claim vide letter dated 31-03-2008 stating that late Annamma Kuriakose was suffering from diabetes mellitus and had undergone treatment which was not disclosed to the opposite party at the time of taking the policy. Aggrieved by the repudiation of the claims the complainant approached the Zonal manager and the Chairman of the opposite party respectively on 16-03-2009 and 03-08-2009, but in vain. The insured had not suppressed any ailment in the proposal before taking the policy. The medical examiner Dr. Latha appointed by the opposite party had conducted various tests and had not found any symptoms of diabetes mellitus or ay other disease. There is deficiency in service on the part of the opposite party in rejecting the claim of the complainant. The complainant is entitled to get a total insurance claim of Rs. 9,25,000/- with interest together with compensation of Rs. 2 lakhs and Rs. 25,000/- towards costs of the proceedings. This complaint hence.
2. The version of the opposite party is as follows:
The opposite party accepted the proposal of the complainant and issued the disputed policies to the tune of Rs. One lakh and Rs. 8,25,000/- with risk commencing from 28-03-2006. The deceased policy holder’s official name is Annamma Kuriakose, she was also known as Molly. The life assured died on 20-06-2007 due to Ketoacidosis and Septicemia. As the claim arose within 15 months the opposite party investigated into the past history of ailments and health of the deceased. It was found that she was undergoing treatment for Ddiabetes Mellitus and TM joint Arthritis at St Thomas clinic Karikode Mulanthuruthy from 05-05-2005. She had been undergoing blood test regulatory at the hospital. Even on the previous day of the date of proposal she consulted the doctor of St. Thomas Clinic Karikode. But in the proposal ;forms she staed that she is free from any ailments. There was deliberate concealment of material facts by the policy holder. It is incumbent upon the applicant to furnish the true and correct answers wherein the contract becomes null and void. The opposite party repudiated the claim of the complainant in accordance with law and there has not been any deficiency in service on the part of the opposite party.
3. The complainant was examined as PW1 and Exts. A1 to A4 were marked. The witnesses for the opposite party were examined as DWs 1 to 3. Ext. B1 to B16 were marked. Exts. X1 to X6 also were marked. Heard the counsel for the parties.
4. The points that arose for consideration are
i. Whether the complainant is entitled to get insurance
claims from the opposite party?
ii.Whether he opposite party is liable to pay compensation
and costs of the proceedings to the complainant.?
5. Point No. i. The parties are in consensus on the
following issues.
a. The deceased submitted Exbts. B2 and B3 proposal for insurance on own life to th tune of Rs. One lakh and
Rs. 8,25,000/- respectively on 23-03-2006.
b. The opposite party accepted the proposal and issued
the policies in favour of the deceased with risk
commencing from 28-03-2006
c. The policy holder breathed her last on 20-06-2007 and
the cause of death was ketoacidosis and Septicemia
evidenced by Ext. B4 death summary.
d. The insurance claim of the complainant was repudiated by the opposite party vide Ext. A1 letter dated 31-03-2008.
e. The complainant submitted Exts. A2 and A3 letters to the Zonal manager and the Chairman of the opposite party respectively on 18-05-2008 and 16-03-2009 to reconsider the decision of the opposite party in Ext. A1.
f. The Higher officials of the opposite party as well upheld the decision of the opposite party in Ext. A1 by Ext. A4 letter dated 03-08-2009.
6. The learned counsel for the complainant contented that the life assured Annamma Kuriakose had undergone detailed clinical examination and investigations conducted by the opposite party before assuring the life of the insured and the test results are on record that is Ext. X1 to X6. the learned counsel maintains that the hospital records which were marked as Ext. B9 and B10 pertain to a patient by name Molly and not of the deceased. According to the counsel the repudiation of the insurance claim was not on the basis of the medical records.
7. The leaned counsel for the opposite party vehemently refuted the averments of the complainant and argued that late Annamma @ Molly has given incorrect and false statements in the proposal statements regarding health by deliberately concealing facts of her pre-existing diseases of diabetic mellitus and TM Joint Arthritis. The learned counsel for the opposite party relied on the following decisions rendered by the higher Judiciary.
a. Budhiben Pababhai Vs. LIC of India & Ors 1 (2010)
CPJ 92 (NC)
b. Senior Divisional Manager LIC Vs. Smt. Satwant Kaur
RP No. 3138 of 2006 (NC)
8. Ext. A1 the repudiation letter reads as follows:
“With reference to your claim under the above policies, we have to inform you that we have decided to repudiate all liability under the policies on account of the deceased having withheld material information regarding her personal history& health at the time of effecting the assurance with us.
In this connection, we have to inform you that in the Proposal for Assurance dated 29-03-2006 & 23-03-2006 she had answered the following questions as under-noted:
Questions Anwers
(a) During the last five years did you No
consult a medical practitioner for any
ailment requiring treatment for more than
a week?
(b) Are you suffering from or have you ever No
suffered from ailments pertaining to liver,
stomach, heart, lungs, kidney,
brain or nervous system?
(c) Are you suffering from or have you ever No
suffered from Diabetes, Tuberculosis,
High Blood Pressure. Low Blood
Pressure, Cancer, Epilepsy, Hernia,
Leprosy or any other Disease?
(d) What has been your usual state of health? Good
We may, however, state that all these answers were incorrect as we have evidence and reasons to believe that before she proposed for the above policy, she was suffering from Diabetes Mellitus, TM joint arthritis and had undergone treatment for the same in a hospital. She did not, however, disclose these facts to us. Instead, she gave incorrect answers as stated above.
9. The complainant contends that the name of his late wife is Annama Kuriakose and she had no occasion to consult DW2 the doctor who is working at St. Thomas Clinic, Karikode, Mulamthuruthi. On the contrary the opposite party argues that the complainant’s wife Annama Kuriakose and Molly name of the patient as stated in Ext. B9 are one and the same person. To substantiate his contentions he relies on Exts. B13 to B16 the documents produced by DW3 the bank manager.
10. We have carefully gone through Exts, B13 to B16. Exts. B13 is the account opening form dated 19-04-2000 in which the name and address of the applicant is stated as follows:
“Annamma (alias Molly) W/o. Kuriakose, Thachampurath house, Thuruthikara, Pangarappally P.O., Mulanthuruthy”. Ext. B14 is a letter issued by the applicant in which it is requested to open the Bank account in the name ‘Annama @ Molly’. The addresses of the complainant and the deceased as per the documents on record as well as Exts. B 13 to B16 are one and the same. Moreover the complainant does not have a case that the photo affixed in Ext. B13 is not that of his late wife Annamma Kuriakose. For the substantiated reasons above we are of the firm view that late Annama Kuriakose and Molly as stated in Ext. B9 are one and the same person.
11. Based on Ext. B9, DW2 the doctor who treated the deceased deposed that he had treated the patient in 2005 for Diabetes mellitus, Tempero Mandibular joint arthritis, ganglion, body pain and fever. It is to be noted that during evidence PW1 admitted that he had issued Ext. B1 letter to the opposite party. In Ext. B1 letter it is stated as follows:
“This is to inform you that my wife was not a diabetic patient for long back. But approximately within 6 months she was noticed to be becoming weak slowly. On notice of the same we had consulted Dr. Binu C. Babu M.B.B.S of St. Thomas Clinic nearest to our residence. Under his instruction we checked the blood sugar and found her becoming diabetic. On his direction she started taking tab. Diabetrol S.R.I number each day. The blood sugar was almost controlled after and there was no visible symptom as a diabetic patient.”
The above statement goes to show that the deceased had been undergoing treatment at the hospital till she was taken to PVS Hospital Ernakulam on 19-06-2007 which was not disclosed at the time of joining of the policy.
12. Admittedly Exbts. X1 to X6 are the medical records of the deceased which were obtained at the instance of the opposite party prior to inception of the policies. The Hon’ble National Consumer Dispute Redressal Commission in Budhiben Pababhai V LIC of India (Supra) observed as follows:
“That the doctor on the panel examines a potential customer goes to show that the doctor is expected to examine the customer and is not expected to blindly endorse the statement made by the customer. While this argument may appear quite impressive, it has to be appreciated that insurance is a contract based on the principle of utmost good faith. The policy not being that of a mediclaim policy, a customer is not subjected to thorough medical examination and the endorsement made by the doctor is mostly on the basis of the information provided by the customer, which is believed to be true. But if he subsequent inquiry/investigation reveals that some information has either been withheld or has been wrongly provided by the customer, the Insurance Company under the provisions of Section 45 of the Insurance Act would certainly be entitled to confront the insured and it would bethen for the insured to rebut or controvert the information so gathered and supplied to him by the insurer.”
13. By relying on the decision rendered by the Hon’ble Appex Court in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. (2009) 8 SCC 316 the Hon’ble National Consumer Disputes Redressal Commission in Senior Divisional Manager LIC Vs. Satwant Kaur Sandhu (Supra) held that the contestant of material information vitiates the concealment of insurance. Both citations speak volumes.
14. The law has been settled by the Hon’ble Supreme Court in a number of Judgments that the contract of Insurance is a contract of “Uberrima fides” and the parties are bound to disclose the material facts to each other. Refrence can be made to the judgement reported in Mithoolal Nayak V. LIC of India AIR 1962 SC 814. The dictum of law was reiterated by the Hon’ble Supreme Court in LIC of India & Ors. Vs. Asha Goel (Smt) & Anr. 1 (2001) SLT 89, and in PC Chacko & Anr. Vs. Chairman LIC of India III (2008) CPJ 78.
15. In view of the above we are of the conclusive opinion that the deceased was aware of her pre-existing ailments which she did not disclose in Exbts B1 and B2 Proposal forms which disentitles the complainant to get insurance claim from the opposite party.
16. Point No. ii. We are also inclined for reasons above to find any deficiency in service on the part of the opposite party in repudiating the insurance claim of the complainant. Any claim on compensation and costs of the proceedings for reasons stated above goes.
17. In the result, the complaint is dismissed.
Pronounced in the open Forum on this the 24th day of September 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Letter dt. 31-03-2008
A2 : Copy of letter dt. 19-05-2009
A3 : Copy of letter dt. 16-03-2009
A4 : Copy of letter dt. 03/08/2009
Opposite party’s Exhibits : :
Ext. B1 : Copy of letter dt. 20-11-2007
B2 : Copy of proposal for
insurance on own life
B3 : Copy of proposal for
insurance on own life
B4 : Death summary
B5 : Certificate of hospital
treatment
B6 : Medical attendant’s
Certificate
B7 : Copy of letter
dt. 12-12-2007
B8 : Copy of letter
B9 : Copy of prescription
dt. 05-05-2005
B10 : Copy of prescription
dt. 17-06-2005
B11 : Copy of electro cardio gram
B12 : Copy of letter
dt 08-12-2007
B13 : Application form for
opening account
B14 : Copy of request
B15 : Copy of ration card
B16 : Copy of statement of
Account dt. 12-12-2011
X1 to X6 : Medical records
Depositions:
PW1 : T.J. Kuriakose
DW1 : V.V. Subramanian
DW2 : K. Maniramakrishnan
DW3 : Dr. Binu C. Babu
