BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.1518/2014

DATED ON THIS THE 3^rd March 2017

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri DEVAKUMAR.M.C,

Member

1.     The complainants filed the complaint under section 12 of the C.P.Act, 1986, against the opposite party, alleging deficiency in service and unfair trade practice and seeking a direction to quash the repudiation of the policy and to pay Rs.15.00 lakhs sum assured, damages of Rs.3.00 lakhs for mental agony, with 18% interest from 19.08.2013 till realization with cost and other reliefs.
2.     The life insured had taken a life insurance policy for a sum assured of Rs.15.00 lakhs, from opposite party.  He died on 29.06.2013 leaving behind the complainants and his mother.  All the policy and related documents in respect of the properties, were in the custody of the elder brother of the deceased life insured.  The elder brother and his mother got realized the few of the insurance policies benefits, without knowledge of the complainants.  Thereby, the complainants have filed a suit for partition before the Hon’ble IIIrd Additional Civil Judge(Sr. Div.) at Mysore, including the opposite party as 4^th defendant in O.S.No.772/2013, which is pending for disposal.  Wherein the opposite party stated that the policy have been repudiated for suppression of pre-existing diseases prior to obtaining the policy.  Aggrieved by the same, the complainant filed this complaint seeking reliefs.
3.     The opposite party admitted the issue of insurance policy, on the basis of information furnished in the proposal form and declaration.  The date of commencement of the policy was 05.10.2011 for a sum assured of Rs.15,00,000/-.  The deceased elder brother by name J.Ramesh has been appointed as nominee in respect of the policy.  The opposite party realised that, the life assured suppressed the material facts relating to his pre-existing diseases in the proposal form.  As such, repudiated the claims made.
4.     Further, the complainants have filed a partition suit vide No.772/2013 before the Hon’ble IIIrd Additional Civil Judge (Sr.Div.) at Mysore, challenging the rights and interest of the nominee and deceased’s mother, same is still pending for adjudication.  Hence, submits there is no deficiency in service and unfair trade practice by them and prays for dismissal of the complaint.
5.     Both parties lead their evidence by filing affidavit and relied on several documents.  Both side filed written arguments.  Complainant counsel addressed oral arguments.  Perusing the material on record, matter posted for orders.
6.     The points arose for our consideration are:-

1. Whether the complaint is maintainable?
2. Whether the complainants establishes the deficiency in service and unfair trade practice on the part of opposite party, in not settling the insurance policy claims in respect of the policy taken by the life assured and thereby they are entitled for the reliefs sought?
3.  What order?

7.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the negative.

Point No.2 :- Does not call for discussions.

Point No.3 :-As per final order for the following

:: R E A S O N S ::

8.   Point No.1:- The complainant Nos.1 and 2 are the children of complainant No.3 and the deceased life assured by name Sri J.Mahadeva.  The husband of complainant No.3 had taken a life insurance policy for a sum assured of Rs.15.00 lakhs from opposite party, on 05.10.2011, who died on 29.06.2013.  The elder brother of deceased, by name J.Ramesh was appointed as nominee.  All the relevant documents were in the custody of J.Ramesh.  The mother of the deceased life assured and his brother colluding with each other to defraud the legitimate rights of the complainants over the properties and the life insurance policies got released money in their favour, relating to few of the policies.  On realising the same complainants have filed a suit bearing O.S.No.772/2013, before the Hon’ble IIIrd Additional Civil Judge (Sr.Div.) at Mysore, challenging the rights and interest of J.Ramesh and mother of life assured and the same is pending for adjudication.  In the said suit the opposite party herein has been arrayed as 4^th defendant.  The opposite party filed its written statement in the said suit, stating the claims in respect of the said policy has been repudiated for concealment of pre-existing diseases.  Aggrieved by the same, the complainant sought for the reliefs.
9.   The opposite party contended that the life assured died on 29.06.2013, i.e. 1 year 8 months 24 days after taking the policy.  The opposite party on investigation found that, the life assured was suffering from kidney disease and liver disease and was a chronic alcoholic, much prior to the date of insurance policy, and the same was not disclosed in the proposal form.  The discharge summary of the C.S.I. Holdsworth Hospital, Mysuru, dated 11.01.2010, disclosed that the life assured was suffering with diseases.  The medical treatment record of Vikram Hospital at Mysuru also disclosed that the deceased was an alcoholic since past 10 years.  The insurance contract being a contract of utmost good faith, both the parties to the contract are bound to disclose all the material facts within their knowledge at the time of entering into the contract.  As such, the opposite party contended it has rightly repudiated claim and there is no liability on their part and hence prays for dismissal of the complaint.
10.   The documents placed on record established that the deceased obtained a life insurance policy for a sum assured of Rs.15.00 lakhs from opposite party.  The elder brother was the nominee for the policy.  The insured died within short period.  The opposite party repudiated the claims after investigation and realising the suppression of existing diseases and on concealment of material facts.  It is also established that a partition suit is also filed wherein the policy is also one of the property, in which opposite party has been arrayed as a defendant, which is pending for adjudication.  The documents placed clearly established that the deceased was suffering from kidney and liver disease prior to taking the policy and the same has not been disclosed in the proposal form.  In view of the above, the complaint filed by the complainant is not maintainable for suppression of material facts by the insured while taking the insurance policy.    Accordingly, point No.1 is answered in the negative.
11.   Point No.2:- From the above, this point does not call for discussions.
12. Point No.3:-With the above observations, we proceed to pass the following

:: O R D E R ::

1. The complaint is hereby dismissed as not maintainable.  However, the complainant is at liberty to pursue the suit before the Civil Court, seeking reliefs.
2. Give the copies of this order to the parties, as per Rules.

 (Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 3^rd March 2017)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER