FA.No.1094/2008 against CD.No.162/2005 District Forum-II, VISAKHAPATNAM .

Between:

1. M/s.Bajaj Allianz General Insurance Company Ltd.,

    rep. by its Branch Manager,

    2^nd floor, D.No.47-10-21/12, 2^nd floor,

    Isna Flaza, Dwaraka Nagar,

    Visakhapatnam-16.

2. M/s.Bajaj Allianz General Insurance Company Ltd.,

    Rep. by its Managing Director,

    GE Plaza, Air Port Road,

    Yerwada, Pune-6.                                                             Appellants/

Opp.parties.

And

Smt. Pappu Atchiyamma, W/o.Nooka Raju,

Hindu, aged about 33 years,

R/o.Ompolu Village, Munagapaka Mandal

Anakapalli, Visakhapatnam District.                                              Respondent/

                                                                                                            Complainant.

Counsel for the Appellants             - M/s.V.Gourisankara Rao

Counsel for the Respondent            - :

QUORUM-THE HON’BLE MR.JUSTICE D.APPA RAO, PRESIDENT,

SMT.M.SHREESHA, MEMBER.

AND

SRI G.BHOOPATHI REDDY, MEMBER.

THURSDAY, THE FOURTH DAY OF SEPTEMBER,

TWO THOUSAND EIGHT.

Oral Order (Per Hon’ble Smt.M.Shreesha, Hon’ble Member)

-------

            Aggrieved by the order in C.D.No.162/2005 on the file of District Forum-II,

Visakhapatnam, opposite parties preferred this appeal.

            The brief facts as set out in the complaint are that the complainant’s father, Gude Narayana, during his life time has taken a policy bearing No.OG-04-1804-9901-00000008 Imd Code 10003367 dated 12-5-2003 from first opposite party and the policy is for death risk only valid from 12-5-2003 to 11-5-2004 for an amount of Rs.3,00,000/-. The complainant was the nominee under the said policy.  The complainant submitted that her father died on 14-82003 at K.G.H.Hospital, Visakhapatnam. The M.R.O. of Munagapaka Village issued legal heir certificate on 28-2-2004. The complainant submitted that her father has furnished his age as 45 years at the time of taking the policy and his date of birth was shown as 7-6-1958.  The complainant submitted the claim form along with relevant papers to first opposite party to settle the death claim of her father.  On 22-7-2004, first opposite party addressed a letter to the complainant refusing the claim stating that as per records made available to them and the investigation report, the insured was drawing old age pension which clearly proves that he is aged above 60 years and having income less than Rs.11,000/-.  The complainant submitted that the opposite party issued policy after taking necessary information and satisfying the conditions of the policy.  The complainant submitted that her father is a Mason worker and his date of birth is 7-6-1958 and his monthly income was Rs.10,000/-She submitted that the opposite parties have refused to settle the claim of the complainant with a view to avoid payment and the Investigation Officer, Sri A.Ramalingeswara Rao made false enquiry and filed report before the opposite parties.  She submitted that the post mortem clearly shows that the deceased is 48 years and not 60 years and that the opposite parties made false allegations to avoid payment of the claim amount.  Hence the complaint for a direction to the opposite parties to pay Rs.3,00,000/-, the death claim amount, from the date of submission of claim form till the date of realization, to pay Rs.1,00,000/- towards damages for causing mental agony, Rs.1,00,000/- towards compensation for committing breach of agreement and costs.

            Opposite parties 1 and 2 filed counter stating that the insured was aged 60 years at the time of accident and ailing from paralysis stroke almost 4 years back, when he was keeping good health and he used to work as Mason and not at the time of his death.  The deceased was holder of white ration card given to poor persons and was an elderly person and used to put thumb impression to draw old age pension and staying with his daughter after suffering paralysis stroke and drawing ration as well as pension from Timmarajupeta Village which is 3-4 Kms. away from Ompolu Village.  The accident  occurred at night of 6-8-2003 and the insured was injured and treated as out patient on 7-8-2003 at K.G.hospital, Viakhapatnam.  They submitted that it is surprising to note that when the injuries were said to be fatal as per Government hospital, Tuni and he was not admitted in K.G.hospital on the same day and was taken to K.G.Hospital, Visakhapatnam on the next day and that too he was treated as out patient.  They submitted that the accident occurred on  6-8-2003 and the intimation of death was given by the complainant only on 16-12-2003 nearly after four months after occurrence of the death and the conditions of policy are clear that any accident has to be informed within 7 days of occurrence and therefore they have repudiated the claim of the complainant for the various reasons that the deceased was old aged pensioner and has mentioned his occupation as Mason drawing an amount of Rs.10,000/- for the purpose of policy and misrepresented the material facts.

            Based on the evidence adduced i.e. Exs.A1 to A5 and B1 to B6 and the pleadings put forward, the District Forum allowed the complaint directing opposite parties 1 and 2 to pay the sum insured i.e. Rs.3,00,000/- together with compensation of Rs.5,000/- and costs of Rs.1,000/- to the complainant.

            Aggrieved by the said order, opposite parties preferred this appeal.

            The learned counsel for the appellants submitted that Ex.B3, investigation report dated 6-8-2003 of the investigator, Sri A.Ramalingeswara Rao revealed that the insured, Gude Narayana Rao, was 60 years at the time of accident and was drawing old age pension and holder of white ration card and was suffering from paralysis for the last four years and used to work as mason during his good health but not at the time of his death.  He also submitted that the insured in his proposal form stated that his monthly income was Rs.10,000/- by way of masonry work  but he was drawing old age pension by mentioning his annual income as Rs.11,0000/- i.e. below poverty line and was staying at his daughter’s house at Timmarajupeta Village which is about 3-4 Kms from Ompolu village.  He further submitted that the accident occurred at the night of 6-8-2003 and was treated as an out patient on 7-8-2003 at K.G.Hospital for the injuries and the insured died on 14-8-2003 but the death intimation was given only on 16-12-2003 in violation of the conditions of the policy, according to which the accident intimation shall be given within 7 days of occurrence.  The learned counsel for the appellants submitted that the District Forum erred in relying on F.I.R., Post mortem certificate and legal heir certificate to determine the age and residence of the insured but he was drawing old age pension from Timmarajupeta Village as per Ex.B4, Abstract of Old Age pension, Rolls Register of Timmarajupeta, which clinchingly establish that the insured was a senior citizen, poor person below poverty line and prayed to allow the appeal.

            We have gone through the material on record.  It is not in dispute that the insured was given insurance policy bearing No.OG-04-1804-9901-00000008 Imd Code 10003367 dated 12-5-2003 and the complainant is the nominee under the said policy.  It is the case of the appellants that the insured was 60 years at the time of accident and was drawing old age pension and holding white ration card and was suffering from paralysis for the last four years and used to work as mason during his good health but not at the time of his death.  We observe that it is for the insurance company or their agents to take proof of age before issuance of policy and verify at the time of issuing the policy each and every fact and the vide discrepancy between 48 years and 60 years can be easily seen with the  naked eye.  Post mortem and inquest reports filed by the complainant (Ex.A3)  are conclusive evidence that his age was 48 years and we observe that the complainant has established that the insured was indeed 48 years at the time of issuance of the policy.

The learned counsel for the appellants submitted that the insured in his proposal form stated he was a Mason and that his monthly income was Rs.10,000/- suppressing the fact that  he was drawing old age pension by mentioning his annual income as Rs.11,0000/- i.e. he was below poverty line.  He was also suffering from paralysis and  staying at his daughter’s house at Timmarajupeta Village which is about 3-4 Kms from Ompolu village.   We note that the notice was issued by the complainant from Ompolu village only .  The contention of the  opposite party that the insured suppressed paralysis and took the policy is also unsustainable since there is no documentary evidence of hospital treatment filed by the opposite parties and moreover the insured died in an accident and there is also no nexus between the alleged suppression and the cause of death.  The other contention of the appellants that the accident was not informed within 7 days and is a violation of the terms of the policy is also unsustainable in the light of the judgement of the National Commission in 2000 NCJ (NC) 406 wherein it was held by the National Commission that “merely because the claim is not made within the stipulated period, it is not void”. 

 We find no substance in any of the contentions of the appellants since a Mason, was given an insurance policy for Rs.3,00,000/- without verifying his income and age.  We have also perused the proposal form which has several blanks and signed in Telugu by the insured but filled by agent in English.  For the reasons aforementioned and as the policy was issued without verifying the age and income, the proposal was accepted and now after the death of the insured, by an accident,  the policy is repudiated on the ground that the insured suppressed his age and income and his health condition is unsustainable.  Therefore, we see no reason to interfere with the well considered order of the District Forum.

In the result the appeal fails and is accordingly dismissed.  Time for compliance six weeks.

PRESIDENT.   LADY MEMBER.   MALE MEMBER.

JM                                                                     Dated 4^th September, 2008.