JUDGEMENT By Sri. Gururaj Member:- This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Sri. Amaresh.H. against Respondent No-1 S.B.I. Life Insurance Corporation Ltd., Group Claims Department Solapur, New Mumbai (Navi Mumbai) and Respondent No-2 The Branch Manager State Bank of Hyderabad ADB Manvi Branch, Manvi. The brief facts of the complaint are as under:- Complainant is the son of Basavaraj H. who was holder of SBI Life Insurance under Swadhan Group Insurance Scheme for account holder of State Bank Group from Respondent No-1 & 2 for an amount of Rs. 1,00,000/- vide Master Policy No. 86000054504 which commenced from 01-02-2008. The date of maturity of said policy is 01-02-2007 and installment/premium of the said policy is at Rs. 3,642/-. The father of the complainant was regular in making the payment of premium during his lifetime. The complainant is the nominee for the said policy. It is the case of the complainant that the father of the complainant that had a Bank Account with Respondent No-2 vide account No. 52185082431 and on the advise of Respondent No-2 he took the said policy in the month of February 2007. After taking the said policy the father of the complainant was died on 27-08-08 due to Cardio Respiratory Failure secondary to Renal Failure with Hyper Tension. Immediately after the death of his father the complainant he being a nominee applied before the Respondent No-2 by furnishing all the relevant documents such as claim form, death certificate etc., and requested to issue the policy amount and other benefits. The Respondent No-2 in-turn sent all the relevant papers and claim forms to the Respondent No-1 for settlement of the complainant claim but the Respondent No-1 instead of settling the claim repudiated the policy and in this regard sent a letter dt. 29-11-08 contending that the cause of death of policyholder is directly attributed to the pre-existing medical condition of the deceased at the time of enrolment under the scheme and the policy does not cover death due to pre-existing illness. Further it is the case of the complainant that the repudiation of the policy by the Respondents is illegal one and against the terms of the policy. Which caused deprivation, losses, and inconveniences to the complainant and thereby he suffered a lot mentally and physically. Once the Respondent has accepted and received the policy amount and installment/premium cannot repudiate the claim on the un-called allegations. This act of the Respondent is to get rid of liability of payment of policy amount and to deprive the complainant who is nominee. So it is clearly a deficiency of service on the part of the Respondent. Hence for all these reasons the complainant has sought for direction to the Respondents for payment of policy amount of Rs. 1,00,000/- along with interest and a compensation of Rs. 30,000/- towards mental shock, agony damages and cost of the litigation etc. 2. The Respondents 1 & 2 appeared through counsel and filed their written version as under:- The Respondent No-1 in his written version contending that the life insurance contract is a contract of UTMOST GOOD FAITH: wherein the proponent is duty bond to disclose everything concerning his health, habits and other related matters which is within his knowledge at the time of making the proposal, failing which the insurer has every right to repudiate the claim. The deceased life assured committed a breach of the principal of Utmost Good Faith by suppression of the fact that the deceased life assured was diagnosed for acute GE with ARF prior to the date of enrolment into the Group Scheme. Hence the complaint is not maintainable and deserves to be dismissed. Any contract of insurance preclude by breach of the principals of Utmost Good Faith is a nullity and void ab-initio, there cannot be any enforcement of any right under the such contract. The complaint is totally misconceived and frivolous. Hence same is to be dismissed in limine. Further it is the case of the Respondent No-1 that as per the section 45 of the Act 1938 the insurers has to prove the suppression of material fact only when a policy is called in-question after two years from the date on which it is affected. In the present case the policy resulted into the death claim within one year and six months only and in the present case the repudiation action has been taken within two years. Hence there is no need for the Respondent No-1 to prove the ingredients of section 45 in the sense that this Respondent No-1 need not prove the suppression of the material facts. However the Respondent NO-1 has placed enough documentary evidence on record to prove the suppression of material facts by the complainant. Thus no violation of section 45 of the Insurance Act, Under these circumstances the repudiation action is just proper and legal as per the terms and conditions of the policy and is well within the scope of section 45. Further it is the case of the Respondent No-1 that the complainant canceled that he was hospitalized from 16-04-06 to 06-05-06 and diagnosed for acute GE with ARF. The investigation has been conducted in this regard by this Respondent. The Hospital discharge summary report of the Rajiv Gandhi Super specialty Hospital Raichur is clearly discloses that the complainant underwent Haemo dialysis and further it is the case of Renal Failure with hyper tension which is directly related with his pre-existing illness. The complainant has signed the papers pertaining to the policy on 13-01-07 but he did not discloses the diseases he was already suffering from ARF which is a kidney failure. He has also suppressed the certificate dt. 06-11-08 given by Sri. Venkatesh Clinic and pathological report dt. 15-04-06 given by M.K. Bhandari Hospital Raichur about his pre-existing illness. The complainant failed in his duties towards full disclosure of the facts. Thus committed the breach of the doctrine of Utmost Good Faith he has suppressed the material facts. Under these circumstances the insurance company is entitled to seize all claims under this Master Policy. Hence there is no deficiency on the part of the present Respondent. The Respondent No-1 rightly repudiated the claim of the complainant. Hence the payment of policy amount interest and compensation does not arise. Hence for all these the Respondent NO-1 has sought for dismissal of the complaint with cost. 3. The Respondent No-2 in his written version contended that the policy in question is that exclusively prerogative of the Respondent No-1 the Respondent No-2 has acted as facilitator only and therefore the Respondent No-2 is not liable to answer the claim. The Respondent No-2 has forwarded the claim of the complainant promptly to the Respondent No-2 thus there is deficiency on the part of the Respondent No-2. Hence sought for the dismissal of the complaint. 4. During the course of enquiry the complainant has filed sworn-affidavit by way of examination-in-chief. In rebuttal the Respondents have filed sworn affidavit of V. Srinivas S/o. Late V.M. Somayajulu, the authorized representative of Respondent No-1 Company as RW-1 and sworn affidavit of one D. Srimannarayana Reddy S/o. Rangareddy Manager State Bank of Hyderabad, Manvi ADB as RW-2. The complainant has got marked (4) documents at Ex.P-1 to P-4. In-rebuttal the Respondent No-1 has got marked (10) documents at Ex.R-1 to R-10. Respondent No-2 has not filed any documents. Hence no documents were marked on behalf of Respondent No-2. 5. Heard the arguments of both sides and perused the written arguments of Respondent No-1. Perused the records. The following points arise for our consideration and determination: 1. Whether the complainant proves deficiency in service by the Respondents as alleged.? 2. Whether the complainant is entitled for the reliefs sought for? 6. Our finding on the above points are as under:- 1. In the Affirmative. 2. As per final order for the following. REASONS POINT NO.1:- 7. There is no dispute that late Basavarajappa H. had taken policy under SBI Life Swadhana Group Insurance Scheme for sum assured amount of Rs. 1,00,000/- vide Master Policy No. 86000054504 which is commencing from 01-02-07 on a premium of Rs. 3,642/- p.a. The said policy was commencing from 01-02-07 and maturity period is 01-02-2017. It is also not in dispute that the said Basavarajapp.H. was died on 27-08-08 due to cardio respiratory failure secondary to renal failure with hyper tension and the complainant has been named as a nominee to the policy in-question and accordingly the complainant has submitted the claim within the stipulated period as per the policy terms and conditions. 8. The complainant has produced (4) documents namely: Ex.P-1 is the certificate of Insurance dt. 17-03-07 issued by Respondent No-1. Ex.P-2 is the summary of futures of the Group Insurance Scheme issued by Respondent No-1. Ex.P-3 is the Death Certificate of Late Basavarajappa issued by Rajiv Gandhi Super specialty Hospital, Raichur. Ex.P-4 Letter dt. 29-11-08 issued by Respondent No-2 Bank. 9. The Respondent has filed in all (10) documents namely: Ex.R-1 is the Copy of the Master Policy. Ex.R-2 is the copy of the proposal cum declaration cum membership form. Ex.R-3 is the certificate of insurance. Ex.R-4 is the copy of the investigation report. Ex.R-5 is the discharge summary issued by RG.S. Hospital,. Raichur. Ex.R-6 is the copy of progress sheet issued by RGS Hospital, Raichur. Ex.R-7 is the Copy of death summary. Ex.R-8 is copy of certificate given by Venkatesh Clinic. Ex.R-9 is copy of Pathalogy report dt. 15-04-06. Ex.R-10 is the copy of claim repudiation letter 10. In view of the undisputed fact in between the parties as noted in Para-6 of the judgment, the burden of proving the material suppression with regard to pre-existing disease at the time of taking the policy is on insurance company and not on the complainant. In the said circumstances, we have to appreciate as to whether this Respondent Insurance company has discharged its burden in proving pre-existing disease. Ex.R-4 is the investigation report on which the insurance company mainly relied on, in the similar way Insurance company reled on Ex.R-5 discharge summary of RGS Hospital Raichur. Ex.R-6 copy of progress sheet issued by the said hospital and Ex.R-7 copy of the death summary and Ex.R-8 copy of the certificate given by the Venkatesh Clinic, and Ex.R-9 copy of pathology report dt. 15-04-06. It is undisputed fact that the complainant died on 27-08-08 while the policy was in force. Wh regard to suppression of material facts, he Respondent insurance company filed affidavit-evidence of RW-1 and above said documentary evidences Ex.R-1 to Ex.R-10. Admittedly Respondent Insurance company not filed the affidavit-evidence of investigation officer said to have given his investigation report as per Ex.R-4. Thereafter also it not filed affidavit-evidences of any other doctors said to have prepared and issued Ex.R-5 to Ex.R-9. In the absence of such material evidence as stated above, we are not in a position to accept those documents to conclude that the disease had suppressed the pre-existing disease and obtained insurance policy. No doubt there might be an exclusion clause but it is the responsibility of the insurance company to prove those facts before this Forum by adducing acceptable evidences. In the instant case the Respondent insurance company not filed such affidavit-evidences of any one of the person to substantiate its contention. Apart from the said fact we have followed the principles of ruling reported in (II) 2008 CPJ 146 (NC) their lordships of the Honble National Commission and observed as in the malafide manner to repudiate of all the claim, then no claim is payable under the medical claim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him of which he is genuinely unaware. 11. In the light of principles of the said ruling and non adducing material evidences before us we cannot hold that the stand of insurance company is acceptable, accordingly we rejected the stand of Respondent insurance company and came to a conclusion that the repudiation of the claim of present complainant who is the nominee under the said policy of deceased of Insurance Company is amounting to deficiency in its service, accordingly we answered Point NO-1 in the Affirmative. POINT NO.2:- 12. Admittedly the assured sum under the policy is Rs. 1,00,000/- as such the complainant is entitled for to recover the said amount from Respondent No-1. The complainant is entitled to recover an amount of Rs. 3,000/- from the Respondent No-1 Insurance Company under the head of deficiency in its service. The complainant is entitled for to recover interest at the rate of 9% p.a. from the date of this complaint till realization of the full amount. The Respondent No-2 is the Branch Manager of State Bank of Hyderabad who introduced the policy of Respondent No-1 Insurance Company for the benefit of its customer. Respondent No-1 is required to answer to the present complainant, as such complaint against Respondent No.1 Bank is dismissed, accordingly we answered Point No-2. POINT NO.3:- 13. In view of our findings on Point No-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed against Respondent No-1 only. The complainant is entitled to recover a total sum of Rs. 1,03,000/- from Respondent No-1 only. The complainant is also entitled to recover future interest at the rate of 9% p.a. on the said amount from the date of complaint till realization of the full amount from Respondent No-1. Complaint against Respondent NO-2 is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 28-08-09) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur
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