This complaint coming up before us for final hearing on 20-08-14                                in the presence of Smt. B.Bindu, Advocate for Complainant and   Sri P.Ramanjaneyulu, Advocate for opposite parties, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-      The complainant filed this complaint under section 12 of the Consumer Protection Act seeking insured amount of Rs.2,57,700/- together with interest @ 24% p.a. from the date of the death of the insured; Rs.50,000/- towards mental agony of himself and his family members; Rs.15,000/- towards physical strain; Rs.5,000/- towards transportation; Rs.50,000/- towards loss of income and Rs.25,000/- towards costs of the complaint. 

2.       The averments of the complaint in brief is here under:  

          The complainant is husband/nominee of the insured smt Godavarthi Roja Ramani.  The insured obtained Medi Claim Insurance Policy from the opposite parties on 27-07-13 for Rs.2,57,000/-.  The complainant in the 3^rd week of July, 2013 received a phone call from the 1^st opposite party to the effect that his mobile number was selected in lucky draw with an invitation to come to their office.  The complainant again received a phone call on 27-07-13 from the 1^st opposite party and lured the complainant that by receiving a prize one can become a member of IRDAU and can have job opportunity if his family members attended.  Being a father of three well educated un-married daughters the complainant had gone to the office of the 1^st opposite party.  One sangeetha and Ravindra employees of the 1^st opposite party received the complainant and made him to take insurance policy.  The said employees of the 1^st opposite party took the complainant to the office of the 2^nd opposite party.  The complainant took policy in the name of his wife by answering all the questions posed by them and paid Rs.25,000/-.  At the time of taking policy the insured had no ailments as asked by the staff of the opposite party.  The insured had no idea about taking  insurance policy.  The insured put her signature on the word of her husband i.e., complainant.  The insured on 09-08-13 suffered with  vomitings, distension of abdomen with tenderness of lower abdomen and loose motions with fever, having breathlessness discomfort.  The insured approached Dr.G.Subramanyam as usual.  The said doctor advised the complainant to take the insured to Guntur for better treatment.  The insured breathed her lost within few minutes of their journey from Tenali to Guntur.  The complainant on 06-12-13 informed death of the insured to the opposite parties claiming insured amount.  After much delay the opposite parties repudiated their claim stating that the deceased suppressed hypo thyroid problem while taking the policy.  Repudiation of claim by the opposite parties is illegal, improper, unlawful and unfair and it amounted to deficiency in service.  The opposite parties did not question the complainant regarding hypo thyroid.  The opposite party made the complainant to roam around the office for all these months by spending much amount for transportation and is not able to do daily works.  The complainant incurred financial loss on account of not attending to his daily works.  The complaint therefore be allowed. 

3.      The contention of the opposite parties in brief is here under:

          The complaint is not maintainable either in law or on facts.  The complaint is based on mere surmises and conjectures.  The insured smt.Godavarthi Roja Ramani after completely understanding the terms and conditions took the insurance policy.  On information provided and declaration made in the proposal form and on receipt of the premium the policy contract No.51114887 commenced from 27-07-2013.  The opposite parties on 05-12-13 received death/claim intimation from the complainant.  The opposite parties conducted investigation as per procedure and it was found that the insured was suffering from the hypo thyroidism since 2010 and the same was established by medical documents.  The investigation further revealed that the insured mentioned her occupation as a school teacher though a house wife.  Non disclosure of hypo thyroidism and misstatement of occupation was material to issuance of policy.  The insured mislead the opposite parties in obtaining insurance policy.  Had the opposite parties new about the insured past medical history, they would not have issued the policy.  Therefore the said contract of insurance is void.  The opposite party has rightly repudiated the complainant’s claim and did not commit any deficiency of service.  The complainant filed this complaint to have unlawful gain by suppressing material facts.  The complaint therefore be dismissed. 

4.  Exs.A-1 to A-16 were marked on behalf of the complainant and                Exs.B-1 to B-7 were marked on behalf of the opposite parties.

5.   Now the points that arose for consideration in this complaint are:

1. Whether the opposite parties repudiated the complainant claim is unjust and if so amounted to deficiency in service?
2. Whether the complainant is entitled to compensation as claimed and if so to what amount?
3. To what relief? 

6.   The admitted facts in this case are these. 

    i) The insured submitted proposal form to the opposite parties  

(Ex.B-1 = A-2.)

2. The insured paid premium of Rs.24,897.90. 
3. The insured died on 09-08-13. 
4. The complainant submitted claim form on 04-12-13 (Exs.B-3 to B-5 & Ex.A-6.)              
5. The opposite parties on 10-12-13 required the complainant to submit previous medical reports (Ex. A-15.) 
6. The complainant sent medical reports (Ex.B-6.) 
7. The opposite parties on 25-01-14 repudiated complainant’s claim (Ex.B-7 = Ex.A-16 )                

7.      POINT No.1:-   The claim was based on the contract of insurance.  The contract of insurance is placed on the principle of utmost good faith as rightly contended by the learned counsel for the opposite party.  In Shnyni Valsan Pombally vs. State Bank of India & another 2014 (1) CPJ 387 (NC) it was  held that it is a well settled proposition of law that a contract of insurance is based on the principle of utmost good faith – Uberrimae fidei, applicable to both parties. The rule of non disclosure of material facts vitiating a policy still holds the field.  The bargaining position of the parties in a contract of insurance is unequal.  The insured knows all the facts, the insurer is unaware anything which may be material to the risk. Very often it is the insured who is the sole person who has this knowledge.  The insurer may not even have the means to find out the facts which would materially affect the risk.  The law therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which are within his personal knowledge or which he ought to have known had he made reasonable enquiries.  

8.      The learned counsel for the opposite party contended that suppression of material fact will make the policy null and void and the any insurer can repudiate the claim. The learned counsel for the opposite party relied on the decision reported in LIC of India Vs. Dalbir Kaur I (2011) CPJ 83 (NC) wherein it was held that any untrue averment be contained therein the said contracts shall be absolutely null and void and all moneys which shall have been paid in respect therefore shall stand forfeited to the corporation.  If the declaration made is found to be false to the knowledge of the declarant, the insurance company is entitled to repudiate the claim

9.    The burden is on the opposite parties to prove that repudiation of claim is just and reasonable as rightly contended by the learned counsel for the complainant. In SBI Life Insurance Company Limited vs. Smt D. Leelavathi and others 2012 (2) CPR 233 (NC) it was held that allegation of pre-existing disease has to be proved by medical evidence In order to discharge its burden the opposite parties relied on the given by the insured to questions 30 to 32 in proposal form and the medical prescriptions filed by the complainant.

10. In Satwant Kaur Sandhu Vs. New India Assurance Company Ltd., VI (2009) SLT 338 the Supreme Court held that the term ‘material fact’ is not defined in the Act and, therefore, it has been understood and explained by the courts in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk.  Any fact which goes to the root of the contract of insurance and has a bearing on the risk involved would be ‘material’.

11.    The learned counsel for the complainant contended that hypothyroidism cannot lead to death and the insured did not die due to hypothyroidism and the cause of death was not related to the decease which was allegedly suppressed.  In Life Insurance Corporation of India and others vs. Nita Bharadwaj 2014 (1) CPJ 409 (NC)  it was held that it is immaterial whether cause of death had any nexus or not with the disease suffered and suppressed by the insured.

12.    The learned counsel for the opposite party contended that the insured gave misstatement regarding her occupation by mentioning as school teacher though a house wife. The insured mentioned her occupation as school teacher in proposal form. In Ex.B-2 it was mentioned by the Branch Manger, “I here by declare that I have independently enquired about the Life Assured and proposer.  The statements, answers and particulars given by me in his verification report are true to the best of my knowledge and belief.  The branch manger signed original of Ex.B-2 ought to have verified with the employment particulars of the insured regarding her employment rather than rushing to give insurance policy. The opposite party through its employees/ agents failed to discharge its obligation and such conduct amounted to ‘nonfeasance’ .The opposite party therefore can not blame either the complainant or the insured for such misstatement and it has to blame that person who alleged to have been personally verified.

13.    It is to be born in mind that the subject policy came into force on    27-07-13 and the insured died on 09-08-13.  The complainant in para 3 of the complaint mentioned the following:-

                   As such he took the policy under the name of his wife by answering what all the questions posed by them and paid Rs.25,000/-  as demanded by them.  At the time of taking policy the policy holder had no ailments as asked by the opposite parties staff with regard to the ailments.  One of the staff accompanied the complainant to their native place Vemuru for payment of above said money.  The insured had no idea about the insurance policies only on the word of the complainant she had put her signature.

14.    The above averments revealed that the staff of the opposite party posed some questions to the complainant regarding health of the insured and the insured put her signature believing her husband.  It quiet apt to mention here that the complainant /nominee is running a medical shop in Vemuru.  It can therefore be inferred that the complainant/nominee got some knowledge about the medicines used by insured.  Under those circumstances the contention of the complainant that the opposite party made the complainant to believe and obtained signatures of the insured by fraudulent representation cannot be accepted. 

15.    The questions Nos. 30 to 32 are extracted below for better appreciation.

              30.         Are you currently taking any medication or drugs, other than minor conditions (e.g. colds and flue).  Either prescribed or not prescribed by a doctor or have you suffered from any illness, disorder, disability or injury during the past 5 years which has required any form of medical or specialized examination (including chest-X-rays gynecological investigations, pap smear, or blood tests), consultation, hospitalization or surgery?

                                                                                        ………NO.

              32.  Do you suffer from any medical ailments e.g. diabetes, high blood pressure, cancer, respiratory disease ( including asthma), kidney or liver Disease, Stroke, any blood disorder, Heart Problems, Hepatitis or Tuberculosis, Psychiatric Disorder, Depression, HIV, AIDS or a related infection?

                                                                                                .NO     

16.    The insured was suffering from the hypothyroidism since 2006 as seen from Ex.A-7 and is on treatment. The complainant taking treatment since 2006 for hypothyroidism leads us to draw an inference that it is not a minor as contended by the learned counsel for the complainant though hypothyroidism may not lead to death.  It can therefore be inferred that the complainant and insured suppressed the ailment of hypothyroidism while obtaining the policy.

17.    As the complainant suppressed material fact of suffering hypothyroidism in our considered opinion is just in repudiating the claim.  We therefore answer this point against the complainant. 

18.    POINT No.2:-   In view of the above findings the complainant is not entitled to any amount as damages as claimed by him.  We therefore answer this point against the complainant.

19.    POINT No.3:-  In view of the above findings, in the result the complaint is dismissed without costs. 

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 26^th day of August, 2014.

MEMBER                                MEMBER                                          PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:-

                                                                                                PRESIDENT