This case is coming for final hearing on 18-09-2014 in the presence of Sri V.Appa Rao, Advocate for Complainant and Sri Sanapala Karuna, Advocate for 1 & 2 Opposite parties and having stood over till this date, the Forum delivered the following.                                                                                                                                                                                                                                                                                                                                                                                           

: O R D E R :

(As per Sri V.V.L.Narasimha Rao, Honourable Member on behalf of the Bench)

1. The complainant filed the present Complaint under Sec.12 of C.P.Act on 16.04.2012 against the Opposite Parties 1 & 2 and requested the Forum to direct the Opposite Parties (1) to pay Rs.2,80,000/- along with interest @ 24% p.a. from the date of death of the insured i.e. 16.11.2009 till the date of realization vide Death policy claim No.C-440029874 (2) to direct the Opposite parties to pay Rs.50,000/- towards compensation for causing mental agony and physical strain (3) to pay Rs.50,000/- towards damages for breach of agreement (4) to pay costs to the Complainant.

2. The brief averments of the Complaint are as follows: The Complainant’s mother Smt.G.Varahalamma has obtained Life Insurance policy from the Opposite parties vide Policy No.C-440029874 dt. 27.06.2009 under the Policy coverage of rs.2,80,000/- as Term Life Benefit and Rs.5,60,000/- towards accidental benefits. The period of the policy is for 5 years and premium has to be paid once in a year. In the similar manner she has paid Rs.4,001/- on 25.06.2009 for the Policy No.C-440029874. While so on 16.11.2009 Complainant’s mother died and even after intimation to the Opposite Parties about the death of the mother, the Opposite Parties has not settled the claim. Also the father of the Complainant i.e. husband of the insured is died long back itself. When the Complainant approached the 2^nd Opposite Party, the officials of the 2^nd Opposite Party are dodging the issue on one pretext or the other stating that they have to receive approval from the 1^st Opposite Party and unless they receive the same, they could not settle the matter. Thereby the Complainant got issued a Legal Notice to the Opposite Party on 22.10.2011 to settle the claim amount covered under the Policy obtained by her mother. Hence as the Opposite Parties has not settled the issue the Complainant has approached the Forum seeking reliefs as sought for.

3. Notice served to the Opposite Parties 1 & 2 and on behalf of the Opposite Party 1 & 2 Sri John Victor, Senior Manager (Legal) filed Written version denying the facts mentioned by the Complainant. The Complainant’s mother has applied for the insurance policy vide Policy No.C440029874 dt.25.06.2009. The husband of the insured i.e. father of the Complainant is the nominee in the said policy. At the time of obtaining the Insurance policy and signing on the proposal form the question No.6A, B at step-7 and Question No.9 at Step-9 of Health details of the Life Insured were questioned to the Complainant and she has answered in negative manner. At the time of the taking the policy and signing in the proposal form it is the primary duty of the insured to disclose the true and correct facts with regard to the medical history and life style information, the Opposite Party received death claim of the Complainant and thereafter it came to know that the Complainant’s mother was died suddenly on 16.11.2009.

4. During the course of investigation it was established that the DLI was suffering with Diabetes, Mellitus, Hypertension and Chronic Kidney disease since prior to the entering into the application for insurance policy. The said fact was revealed and evident from the registration data and admission data dt.15.06.2009 of Care Hospital. The Complainant’s mother while obtaining the Policy and signing the proposal form wilfully suppressed the actual facts and signed on the proposal form. Though she is suffering with Diabetes, Mellitus, Hypertension and Chronic Kidney disease which could not be considered as a normal disease. With regarding to the question which was duly filled by the Complainant’s mother vide Step-10 of the proposal form it is found that the statement, answers or particulars stated in the proposal form are incorrect or untrue in any respect. More particularly the Insurance Contracts are best on the principle of “UBRRIMEFIDES” which means observance of the good faith on the parties to the Contract.

5. While denying the entire contents of the Complainant and mentioning about the actual facts revealed in the proposal form, the Opposite Parties relying upon the case law (1) AIR 1971, AP 41 between LIC of India Vs B.Chandravathamma (2) 1996 (6) SCC 428 United India Insurance Co. Ltd Vs. MKJ Corporation (3) III (2006) CPJ 32 LIC of India Vs Sampat Devi (4) I (2008) CPJ 144, V.Nalini Vs. LIC of India and another (5) I (2008) SCC 321 PC Chacko and another Vs Chairman, LIC of India and others (6) III (2003) CPJ 172 NC, between State of Punjab and anr. Vs. Smt.Asha Rani, (7) I (2009) 212 NC, LIC of India & anr Vs. Balbir Kaur (8) II (2008) CPJ 156 between LIC of India Vs Smt.Piari Devi & others (9) III (2008) CPJ 226 between LIC of India Vs Radhika Devi, the Opposite Parties 1 & 2 requested the Forum to dismiss the complaint as the Complainant mother has suppressed the actual facts of her previous medication and obtained the policy which are against to the terms and conditions to the policy.

6. Observing the pleadings of the both sides, the Forum framed the following points for consideration.

   1. Whether there is any deficiency of service on the part of Opposite parties 1 to 3;

   2. To what relief.

7. The Complainant filed her Evidence Affidavit and on her behalf Ex.A1 to A9 were marked. On behalf of the Opposite Party 1 & 2 Sri P.B.Ganapathy in the capacity of the Asst Manager-Legal, TATA AIG Life Insurance Company filed Evidence Affidavit and on their behalf Exs.B1 to B5 were marked. Even after giving so many adjournments both parties not filed Written Arguments and finally after hearing both sides orally the matter was posted for orders on 30.09.2014.

8. Point Nos.1 & 2: The present complaint is filed by the Complainant against the Opposite Parties for paying Rs.2,80,000/- Policy amount along with Interest @ 2% p.a. basing upon the Policy No.C-440029874 obtained by her mother in which she is a nominee and also she is claiming for compensation for causing mental agony and compensation for committing breach of agreement amounted to Rs.1,00,000/- along with costs of the Complainant.

9. The Opposite Parties in their Written version and Evidence Affidavit stated that the Complainant’s mother has obtained the policy vide

10. Ex.A2 is the Policy information page (Policy data) for the Policy No. C-440029874 in which it reveals that the term life benefit in the column of amount or benefit is Rs.2,80,000/- in the column of accidental death benefit, the amount is mentioned as Rs.5,60,000/-. Ex.B1 is the application form for obtaining the Insurance Policy in which it was mentioned as G.Ramana (Husband) aged 50 years is the nominee in the policy.

11. In the Para No.13 of the written version of the Opposite Parties the 13(i) the Opposite Parties stated that the Complainant is not a nominee in the policy and her father i.e. husband of the insured Smt.G.Varahalamma, is the nominee. As seen from the principle of locus standi and observing the entire documents the complainant’s name as a nominee is not included and also she herself is stating that her father i.e. husband of the insured Smt.G.Varahalamma has died and she is Class-I Legal heir of the Insured for the said policy No. C-440029874. Observing the Ex.A4 it seems she has obtained a family certificate from the Anakapalli Tahsildar stating that she is the legal heir of the insured. Smt.G.Varahalamma in Policy No.C-440029874 though she is a legal heir of the insured in the policy. In the her name was included in the policy she did not claim ay benefit from the Opposite Parties as per the principle of the legal maxim “action-personalls, mortitur-cum-person” means ___________________________________. In this matter observing the principle of legal maxim has not been entered her name by the Opposite Parties 1 & 2 as a nominee, she could not claim any relief as she is not having locus standi to file for claim amount.

12. Coming to the point of the deficiency of service on part of the Opposite Parties as seen from the Counter part and Evidence affidavit, it seems they are alleging the Complainant mother that she has suppressed the material facts of her previous medication and obtained the policy. With regarding to that issue, observing the under mentioned exhibits, it reveals the facts as follows:

13. < > is the Application Form for the Policy No.C-440029874 in which Complainant’s father Sri G.Ramana is the nominee. In the column Step No.7-A Health questions, for the question of “have you been advised that in the future you require or may require hospital admission or surgical operation or procedure and the 2^nd question Do you currently have any medical condition or symptoms, or are you taking any medication or intending to consult or during the last 5 years, have consulted a doctor for any diagnostic tests – answer given by the insured i.e. Complainant’s mother is “NO”.

    For the question of Step7A – (1) Have you ever been diagnosed, treated or sought treatment or advice for cancer (2) have either of your natural parents or any siblings died or suffered from cancer (3) Have you ever been declined, deferred or accepted at special terms under a life, accident, medical or other health related insurance? (4)Have you every had any of the following diabetes, stroke, chest pain, heart attack, heart disease, raised cholesterol, high or low blood pressure and Disease of nervous system, disease of disorder of the nervous related, disease or disorder related to HIV infection or AIDS, physical disability or mental impairment – the Complainant’s mother i.e. insured answered ‘NO’ in the proposal form. Even observing in the Step-9 Health details of the proposed insured for the questions mentioned in the proposal form she answered negatively. For question No.10 (A to Z) stating “NO”. Even for the questions mentioned the proposal form 5,6,7,8,9 (a,b,c) the answer given by the complainant’s mother/insured is “NO”.

14. Ex.B2 is the basic definitions of the words mentioned in the Insurance Policy and the terms and conditions in the Policy. Ex.B3 is the Care Hospital registration data sheet i.e. Care Hospital Arogyasree case sheet in which it reveals that on 15^th June 2009 the Complainant’s mother has been admitted in Care Hospital under Arogyasree scheme for ‘DM HTN CKD’. The admission data reveals that she has consulted Nephrologist in Nephrology unit Dr.K.Kalyan Chakravarthy under Casualty category, the time admitted in the Care Hospital on 15.6.2009 at 1.20 pm. The Ex.B3 Hospital Case sheet reveals that she has undergone treatment reveals that from 15.06.2009 to 22.06.2009 and Ex.B4 is the Investigation report dt. 8.9.2010 it reveals that Sri M.S.Prasad, Investigator has been deputed for investigation the issue after receiving the claim of the Complainant vide Policy No.C-440029874. The Investigation report reveals that she died due to the Kidney problem for which she has underwent treatment. The Investigator when contacted the Complainant’s father i.e. Insured husband where he has not given any appropriate reply. As per the Investigation report conducted by the Investigator, it seems the Complainant’s mother was treated at Care Hospital under Rajiv Arogyasree scheme from 15.06.2009 to 22.06.2009. Her Registration No.35031. Ex.B5 is the letter corresponding done by the Opposite Parties 1 & 2 that the Complainant’s father i.e. Husband of the Insured in Policy No.C-440029874.

1. Even observing the version of the Complainant that her father died and she is the Class-I Legal heir of the Complainant i.e. mother of the complainant Smt.G.Varahalamma confirmed by Ex.A4 Certificate given by Tahsildar, Anakapalle along with Ex.B5 & B4 Investigator’s report, wherein Investigator questioned the Complainant’s father and he has not replied and also complainant has not filed any documentary proof that her father died. We are of opinion that the bonafides of the Complainant has to be suspected whether her father is died or not?

2. Any howobserving Ex.B3 Care Hospital’s case sheet, wherein Complainant’s mother has taken treatment from 15.06.2009 to 22.06.2009 we are of opinion that the Complainant’s mother has suppressed the fact of admitting into the Hospital from 15.06.2009 to 22.06.2009 and obtained the Policy from the Opposite Parties 1 & 2 from 25.06.2009 thereafter she died on 16.11.2009. With regarding to the issue of suppression of material facts in the case of 2005(3) ALT 9 CPA between Oriental Insurance Co. & C.Venkatesam it was held that the burden of proof lies upon the Insured mis-represented facts about his health at the time of the obtaining policy lies on the insurer.

3. In the case of Civil Apepal No.2776/2002, dt. 10.07.2009 between Satvant Kaur Sadhu Vs. New India Assurance Co. ltd. it was held that “on the material record, the claim of the appellant being found to be fraudulent we of opinion that under useful purpose would be served by remanding the matter to the National Commission for fresh adjudication on merits. During the foregoing discussion we do not find any merit in the Appeal and Appeal is dismissed without costs”.

4. Observing the case law 2005 (3) ALT 9 CPJ, the Opposite Parties 1 & 2 has proved that the Complainant’s mother has obtained the Policy No.C-440029874 with fraudulent intention by suppressing her earlier medication vide she got treatment in Care Hospital, Visakhapatnam from 15.062009 to 22.06.2009 as per Ex.B3.

5. Observing the principle of Case Law in Civil Appeal No.2776, dt. 10.07.2009 and the Ex.B1 along with Ex.B3 we conclude that the Complainant’s mother after taking treatment in Care Hospital under Arogyasree scheme from 15.06.2009 to 22.06.2009 she has obtained the Policy No.04429874 on 25.06.2009 by suppressing her earlier medication mentioned in Ex.B3. Hence observing the Ex.B1, B3 documents along with the Hon’ble Supreme Court Judgement in C.A.No.2776/2002 dt. 10.07.2009 we are of conclusive opinion that there is no fault on part of Opposite parties for repudiating the claim and the Complaint is liable to be dismissed without costs as Complainant’s mother has obtained the Policy No.C-440029874 with fraudulent intention to cover her latches. Accordingly point Nos. 1 & 2 are answered.

6. In the result the Complaint is dismissed without costs.

   Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 30^th day of September, 2014.

    

         Sd/-                                                                       Sd/-

   President (FAC)                                                         Member           

                                                                      District Consumer Forum-I

                                                                               Visakhapatnam

    

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:   

      Sd/-                                                                       Sd/-

President (FAC)                                                         Member           

                                                                   District Consumer Forum-I

                                                                            Visakhapatnam