O R D E R

SRI.D. KRISHNAPPA, PRESIDENT:

          The grievance of the complainant against the Ops in brief is, that he is the father of a child called Ishani Sharma who was born on 02/04/2006 in Shanbag Nursing Home, Rajajinagar, Bangalore.   He immediately got that child insured with the Ops on 12/05/2006 for Rs.4.00 lakhs and paid the premium amount on 09/05/2006.   That the child after it was born was hale and healthy up to period of 3 months which was certified by the doctor who was treating it.   That he also got done vaccination to the child and doctor treating her, certified about the health in the child health immunity card, which was maintained in Shanbag Nursing Home.   In the last week of June, the child started suffering from cough and cold.   The doctor who was treating the child initially gave antibiotics.  As there was no improvement, the child was shifted to Manipal Hospital on 01/07/2006.   Then the doctors at Manipal hospital were able to find out after obtaining test reports on 10/07/2006 that the child had infected with lung disease and till then nobody had any knowledge about health conditions of the child and stated that the child died on 28/07/2006.  Then he made a claim to Op No.2 to pay the insurance amount Rs.4.00 lakhs but the Op through his letter dated 02/11/2006 repudiated his claim and thus the complainant attributing deficiency in the service, referring to issue of legal notice has prayed for a direction to Ops to pay insurance amount Rs.4.00 lakhs and also to award damages of Rs.2.00 lakhs and costs.

2. Ops have appeared through their advocate and filed version contending that the complaint is frivolous and injust.   It is further stated that complainant while applying for insurance policy given health declaration on behalf of the child declaring as if the child was hale and healthy in all aspects.   Further stating that child was not suffering from any kind of disease and thus had given false declaration about health condition, despite that the complainant was aware of ill health of the child.   The child was diagnosed for ‘bronco-pneumonia’ on April 23^rd 2006 and was under treatment since then and same has been confirmed by Dr. Promod G. Shanbhag of Shanbhag Nursing Home of Bangalore.   Thus the Ops reiterating that the child which who insured was having bronco-pneumonia, even as on 24/03/2006 and she was under treatment, but the complainant the father by suppressing all these facts given false declaration of the health of the child and obtained a policy which has resulted in suppression of material facts and thus because of the pre-existing disease they have repudiated the claim and thereby have prayed for dismissal of the complaint.

3. In the course of enquiry into this complaint, the complainant and one Harish Nambiar authorized signatory of the Ops have filed their affidavit evidence reproducing what they have stated in their respective complaint and version.   The complainant along with the complaint has produced copy of the policy, copy of the child health record of Shanbhag Nursing Home, copies of Manipal Hospital, where the deceased child was under treatment, discharge summary, then a copy of the report of Manipal Hospital, death certificate of the child, besides copies of certain correspondences that went on between the complainant and Ops.  Ops have produced copy of application form and a copy of medical certificate issued by Dr. Promod G. Shanbhag.   We have heard the counsel for both parties and perused the records.

4. On the above contentions, following points for determination arise.

1. Whether the complainant proves that the Ops have caused deficiency in their service in repudiating his claim for payment of insurance amount on account of death of his daughter?
2. To what relief the complainant is entitled to?

5. Our findings are as under:

Point No.1 : In the negative

Point No.2 : See the final order

REASONS

6. Answer on point No.1: Before we take up the matter for consideration on merits, it is necessary to narrate in brief the checkered history of this complaint.   Complaint had been disposed of during the tenure of my learned predecessor, on merits allowing the complaint. Against which Ops preferred appeal in appeal No.1260/09 which was dismissed.   Against which, the Ops preferred Revision Petition before the Hon’ble National Commission in Revision Petition No.851/2010 which came to be allowed by setting aside the order of the lower foras with a direction to dispose of this complaint afresh by giving an opportunity to the Op to produce Dr. Promod G. Shanbhag for cross examination, and to produce records of the treatment of the child in the said nursing home or at any medical centre from April 2006 onwards subjected to the right of the complainant to lead any evidence in rebuttal.   Accordingly, on receipt of the record from the Hon’ble National Commission both parties are secured.   Ops have not produced any additional documents but examined Dr.Pramod G.Shanbhag who has been subjected to the cross examination by the counsel for the complainant.   The complainant has not availed any opportunity to lead rebutal evidence.  With this, complaint is taken up for disposal on merits.

7.   As it is clear from the facts narrated above, we find no disputes between the parties with regard to the facts regarding date of birth of the child, insurance policy obtained on the life of the child, date of death etc.,     Thus we shall confine ourselves to find out whether repudiation of the claim of the complainant for paying insured amount is justified and the Ops have proved that the deceased child had pre-existing disease.    The child was born on 02/04/2006 in Shanbhag Nursing Home, Rajaji Nagar, Bangalore, the Doctor of that hospital has been examined as a witness on behalf of Ops.   The complainant obtained a policy with assured amount of Rs.4.00 lakhs on the life of the deceased child with effect from 12/05/2006.   The child died on 28/07/2006.   The opponents in support of their contention that the child had pre-existing disease and that the complainant, father of the child while filling the application for issue of policy suppressed the material facts, has examined the doctor of Shanbhag Nursing Home as their witness and have also produced a copy of application form given by this complainant for issue of policy.   Admittedly, in the health declaration chart of the application, several questions are raised regarding several diseases and ailments, the complainant ticked all of them as ‘nil’.   By declaring as if the child was not at all suffering from any ailments prior to the filling up of this application and even as on the date of application.   Application for issue of policy was given on 09/05/2006.   Thus, the declaration given by the complainant discloses that his child did not have any health complication when he applied for issue of policy.

8.  One Dr. Promod G.Shanbhag who was the doctor of Shanbhag Nursing Home in his affidavit evidence has stated that he is a doctor and child specialist have been practicing since 36 years and stated that Ishani Sharma daughter of this complainant was born in his Nursing Home on 02/04/2006 and that child was diagnosed by him as having bronchopneumonia on 23/04/2006 put the child on treatment after examining her with tests, x-ray report.   Witness has stated to had issued the certificate to that effect on 31/10/2006.   It is further stated by him that he treated the child for that ailment as outpatient, as the child was not responding to the treatment he referred it to neonatologist at K.R. Hospital and later on to the pediatric pulmonologist at Manipal hospital and he came to know that child was suffering from incurable disease which required lung transplantation and he also came to know the child died on 28/07/2006.   The Ops have produced a Photostat copy of the certificate issued by this doctor.  The counsel for the complainant has subjected this witness to the cross examination and the complainant and counsel have not denied that the child was born in the Nursing Home of the witness he had treated that child and he was administering immunization drugs as per chart produced by the complainant.   The witness has denied the suggestions made in the cross examination that the child was hale and healthy when he examined on 13/06/2006.   The witness also denied that he had not treated the child for bronchopneumonia on 23/04/2006 but admitted to have no documents in his custody to show that he had treated the child for that disease on 23/04/2006 and stated that he has sold the nursing home two years back and therefore, he do not have any documents to that effect but stated all other documents were handed over to the attendants of the child.     Thus, the evidence of this witness that the child was born in their nursing home they did certain tests including x-ray and the child was suffering from lung disease, that he was administering antibiotics and when he could not control the disease referred the child to a pediatric pulmonologist of Manipal Hospital, Bangalore as remained un-contradicted.    The complainant has not disputed these facts, on the contrary has admitted the birth of the child in this witness nursing home and this witness was administering immunization drugs to the child for quite some time. The complainant himself has produced the immunization card maintained by this witness in his nursing home from the date of birth till 13/06/2006.   But the suggestion of the counsel for the complainant that witness did not notice any decease in the child, therefore has not mentioned anything about the disease in this immunization chart is denied by the witness by contending that, immunization chart is only meant for recording the child growth and periodical immunization done and it is not meant for recording the disease of the child.   Even this immunization card do not contain any column for recording ill health of the child and it looks this chart is only meant for administering vaccination and growth and development statistics.    Therefore, the contention of the complainant, that child was hale and healthy till 13/06/2006 and Dr. Promod G. Shanbhag has not recorded any disease and that evidence of the witness cannot be believed cannot be accepted.

9. The complainant himself has produced Manipal hospital records which throw some light on the issue that has scrapped up for decision.   The child was referred to by Dr. Promod G.Shanbhag to Manipal Hospital, was admitted to that hospital on 28/06/2006 and discharged on 10/07/2006 and the child for the second time was admitted in the same hospital on 19/07/2006 and died on 28/07/2006.   In the history sheet maintained in the Manipal Hospital, on the date of admission they had received a complaint of cough since two weeks and recorded the history of illness, it reads “that child was apparently alright till two weeks, when mother noticed that child has cough which was on and off, used to get aggravated with activity and the child was treated with antibiotics and bronchodilators for persistent pneumonia, but cough did not subside.    Hence, she was brought to Manipal Hospital for further treatment”.   Here this history found to had been given by the attendants of the child, goes in corroboration with the evidence of Dr.Pramod G.Shanbhag.  Witness Dr.Promod G.Shanbhag who had treated the child for pneumonia stated to had given antibiotics but when illness did not subside, he referred the child to Manipal Hospital.   Further to this history of Manipal Hospital regarding the period from which the child was ailing, we have another report of Manipal Hospital produced by the complainant himself which is paged as 19 and also as 28.   This is part of the case records of Manipal Hospital.   In this history, Manipal Hospital recorded as ‘Interstitial lung disease (pulmonary alveolar proteinosis).   Baby Ishani 2½ months old female child born apparently normal until two weeks of age had cough, intermittent in nature (rest is vomiting as not relevant).   It is further stated that baby was treated with multiple antibiotics for persistent pneumonia and shifted to Manipal Hospital for further management.   Here it is again reiterated that the child was apparently normal until two weeks of age had on persistent pneumonia was given multiple antibiotics and then shifted to their hospital.   This record of Manipal Hospital supports the evidence of Dr. Shanbhag who after finding lung disease of the child deposed to had started antibiotics but the child did not improve was shifted to this Manipal Hospital.   After receiving the child, Manipal Hospital subjected the child to several tests including x-ray which suggests interstitial lung disease.   The complainant has not disputed this recording of the Manipal Hospital doctors   when the child was admitted to and was under treatment.   These records are produced by the complainant himself along with the complaint.   Thus all these unrebutted facts borne out from the hospital records that too produced by the complainant himself establish that the child after two weeks after birth developed lung disease and was treated initially by Dr. Pramod G. Shanbhag but when the decease did not subside he referred the child to Manipal hospital.   The evidence of this witness in this regard stands to the reason and therefore cannot be disbelieved as to the period from which the child developed lung disease.   Thus the child which was born on 02/04/2006 was alright for a period of two weeks thereafter, it started suffering from the lung disease.   The policy on the life of the child came to be issued w.e.f 12/05/2006 and the application for the issue of policy was filed by the complainant on 09/05/2006.    Therefore, as on that date i.e. 09/05/2006, the complainant could not have given the declaration of the health of the child as absolutely normal.  Complainant that the father who was following thorough and produced hospital records cannot be said to had no knowledge of the disease of his daughter, we therefore hold that the complainant despite knowledge of ill health of the child suppressing the material facts given false declaration of the health of the child and obtained policy.   It is further found that the complainant paying premium took the policy for an assured amount of Rs.4.00 lakhs with effect from 12/05/2006 and child died on 28/07/2006 within about 2½ months after the issue of the policy.   On considering all these aspects, in their totality one can easily arrive to the conclusion, that the   complainant obtained a policy by suppressing the pre-existing disease and therefore, Ops have rightly repudiated the claim which do not amounts to deficiency.   With the result, we answer point No.1 in the negative and pass the following order.

O R  D  E  R

          Complaint is dismissed.   Parties to bear their own cost.

          Dictated to the Stenographer.  Got it transcribed and corrected.   Pronounced in the Open forum on this the 15^th December 2010.

MEMBER                          MEMBER                               PRESIDENT