BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

FA  95 of  2011  against 16/2010, Dist. Forum, Warangal 

Between:

Bajaj Allianz Life Insurance Company Ltd.

Rep. by its Manger

Warangal Branch

Warangal.                                                    ***                           Appellant/

                                                                                                  Opposite Party

                                                                   And

P. Usha Kumari

W/o. Late  Muralikrishna

R/o. 27-1-429

Masid Centre, Balajinagar

Nellore-524 002.                                         ***                         Respondent/

                                                                                                Complainant

Counsel for the Appellant:                          M/s.   G. Anand Kumar

Counsel for the Respondents:                     M/s.  C. P. Suresh

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT

   &

      SMT. M. SHREESHA, MEMBER

FRIDAY,  THE TWENTY THIRD DAY OF NOVEMBER TWO THOUSAND TWELVE

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

***

1)                 This is an appeal preferred by  the opposite party   insurance company against the order of the Dist. Forum  directing  it to pay Rs. 4,50,000/-   with interest @ 7.5% p.a., from 24.2.2010  till the date of  deposit together with costs  of  Rs. 500/-.

2)                 The case of the complainant in brief is that   her husband late Murali Krishna   had taken an insurance policy for Rs. 4, 50,000/- wherein she was kept as nominee.   While so, he died on 21.6.2009 and when she submitted the claim, it was repudiated on 24.9.2009 along with medical attendant’s certificate issued by Dr. M. Venkata Ramana of Hanumakonda alleging that he had history of end stage renal transplant.   At the time of taking  policy, he  was  hale  and hearty.    The  certificate issued  by  Dr.  M.

Venkata Ramana shows that he was treated primarily for sepsis, vomiting and loose motions as secondary, and there was no ailment prior to 19.2.2008.    Assailing the repudiation, she filed the complaint claiming Rs. 4, 50,000/-covered under the policy with interest @ 9% p.a., together with compensation and costs. 

3)                The appellant insurance company resisted the case.   While admitting issuance of policy, it alleged that on receipt of claim it had investigated and found that the deceased had history of end stage of renal transplant since March, 2007.  The said fact was deliberately concealed in the proposal form dt. 16.2.2008.    Had this been known they would not have issued the policy.   Therefore, claim was repudiated for non-disclosure of material facts known to the deceased.   The claim was vexatious and prayed for dismissal of the complaint with costs. 

4)                The complainant in proof of her case filed her affidavit evidence and got Exs. A1 & A2 marked while the insurance company filed the affidavit evidence of its Dy. Manager.

5)                The Dist. Forum after considering the evidence placed on record opined that the insurance company did not file any evidence to prove that he had history of end stage of renal transplant and  that he had suppressed and therefore directed the insurance company to pay Rs. 4, 50,000/- covered under the policy with interest @ 7.5% p.a., from 24.2.2010 till the date of payment together with costs of Rs. 500/-.

6)                Aggrieved by the said order, the 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 he was suffering from renal transplant since 2007 evidenced by letter issued by Apollo Hospitals.   Since the suppression  being vital and material,  it prayed for dismissal of the complaint.

7)                During the course of hearing  of  the appeal, the appellant filed an application to receive documents as additional evidence which were received and assigned as Exs. B1 & B2. 

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 assured Murali Krishna  had taken  an insurance policy  for Rs. 4,50,000/-  basing on  his declaration in the proposal form submitted by him under Ex. B2.    He was a teacher.   The complainant,  wife of the deceased intimated  his death by  enclosing Ex. A2  Medical Attendant Certificate  issued by one Dr. M. Venkata Ramana wherein he mentioned  the primary cause of death ‘sepsis, vomiting, loose motions’.  The assured died on 21.6.2009.  The doctor had noted the date of first consultation was  19.6.2009 and found that he  was having mild fever, followed by vomiting, loose motion.    He noted these ailments on the instructions given to him by the attendants.   When the complainant had enclosed Ex. A2, the insurance company repudiated the claim  under  Ex. A1  categorically mentioning “that the deceased life assured had history of end stage of renal transplant since March, 2007.  These facts known to the deceased life assured were not disclosed in the proposal form dt. 16.2.2008.   Had these facts been disclosed the company would not have covered the risk for the policy. Hence the claim has been repudiated due to non-disclosure of material facts.”   Assailing the repudiation, she filed the complaint.  The complainant did not  categorically dispute  the said ailment.    What all she stated was that  the opposite party sent repudiation letter  just to evade  payment of  Rs. 4,50,000/- covered under the policy to the complainant.   Since the opposite party did not file  any evidence to substantiate  the said fact, the Dist. Forum  allowed the complaint directing the insurance company to pay the amount covered under the policy.  

10)              Obviously, after filing  of the appeal, coming to know that medical  certificate issued by Apollo Hospital  to show that the deceased  had underwent  renal transplant filed the certificate issued by it  along with proposal form submitted by the deceased, together with report of the investigator as additional evidence.    No doubt, in the petition to receive  the documents, it was alleged that its advocate did not file it,  the fact remains that the complainant  did not dispute  the medical record submitted by the insurance company  which was already adverted to in the repudiation letter.  Therefore, it cannot be said that the insurance company has crated these  documents in order to prove that assured underwent renal transplant.   The entire record  filed herein  would disclose that it relates to the assured  when he underwent treatment for end stage  renal transplant.   Sri B. Vinod Kumar,  Member of Parliament had issued letter  informing that  the Chief Minister of Andhra Pradesh  had sanctioned  an amount of Rs. 35,000/- from his relief fund.   Obviously, he underwent renal transplant even before  he had taken the  insurance policy.  This would amount to material suppression of his health condition. 

11)              The Hon’ble Supreme Court in  P. C. Chacko Vs. Chairman, LIC of  India reported in III (2008) CPJ 78 (SC) held :

“The purpose for taking a policy of insurance is not, in our opinion, very material. It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the insured. Proposal can be repudiated if a fraudulent act is discovered. The proposer must show that his intention was bona fide. It must appear from the face of the record. In a case of this nature it was not necessary for the insurer to establish that the suppression was fraudulently made by the policy holder or that he must have been aware at the time of making the statement that the same was false or that the fact was suppressed which was material to disclose. A deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law.”

12)              Later in the case of Satwant Kaur Sandhu Vs.  New India Assurance Company Ltd. reported in  (2009)  8 SCC 319  in unequivocal terms  has clearly held  that when there is a suppression of material fact by the life assured  in relation to his health, the insurance company cannot be compelled to  pay the insurance amount to the nominee. 

13)               The complainant  except denying  that he did not undergo  the end stage of renal transplant, could not deny  that the medical record does not relate to the deceased.   Since the said fact  was mentioned as early  as on 24.9.2009 in the repudiation letter by filing Exs. B1 & B2, we are of the opinion  that the assured  had suppressed ailment with which he suffered.   Since the suppression  was material, we are of the opinion that the complainant/nominee was not entitled to the amount.  It may be stated herein that  Hon’ble Supreme Court in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd.  in Civil No. 2776 of 2002 decided on 10.7.2009 held that ‘non-examination of doctors on an affidavit does not invalidate the documentary evidence on record.   

14)               In the result, the appeal is allowed setting aside the order of the Dist. Forum.  Consequently, the  complaint is dismissed.  No costs. 

1)      _______________________________

PRESIDENT                 

2)      ________________________________

MEMBER

                                                                                      23/11/2012

*pnr

UP LOAD – O.K.