BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 43 / 2002 WEDNESDAY THE 28th DAY OF APRIL 2010. 1. G. Balakrishnan (died), 2. Thenmozhi W/o. Late G. Balakrishnan. 3. Srinivasan, S/o. Late G. Balakrishnan, 4. Sridhar, S/o. Late Balakrishnan, All are residing at No.5, Easwaran Koil Street, Arcot, Arcot DMC. … Complainants. - Vs – The Oriental Insurance Co. Ltd., Rep. by Senior Branch Manager, The Oriental Insurance Company Limited, 17-A Krishnagiri Road (SKS Complex, 1st floor), Ranipet 632 401. … Opposite party. . . . . . This petition coming on for final hearing before us on 12.4.2010, in the presence of Thiru. M. Balasubramanian, Advocate for the complainant and Thiru. T.M. Vijayagavelu, Advocate for the opposite party and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. I. The brief facts of the case of the complainant is as follows: The complainants taken Insurance Policy bearing No.413502/201/MC/185/2002 for Rs.50,000/- and for three of his family members of Rs.25,000/- each for a period 1.11.01 to 31.10.02 and was regular in paying the premium and taken one another policy for self bearing NO.413502/2403/18279/99/NB for a sum of Rs.5,00,000/- for period from 22.5.1998 to 21.5.2010 and paid a premium of Rs.1500/-. The complainants have gone to Vellore Schell Eye Hospital for his eye check up and later it was diagnosed as proriterative Diabetic Retinopathy and he was given treatment and he paid a sum of Rs.11,427/- from 14.12.01 to 19.1.02. They made several representations and submitted the original bills and discharge summary, etc along with a letter to the opposite party. 1st complainant admitted in Scudder Memorial Hospital, Ranipet for Diabetic Ulder RT foot with Osteomyclitis, Hypertension CRF and the 1st complainant admitted on 21.3.02 and was discharged on 27.3.02. The 1st complainant paid a sum of Rs.6762.75 from 18.3.02 to 30.3.02 and the 1st complainant made several representations and submitted the original bills and discharge summary etc. along with a letter to the opposite party. The 1st complainant was again admitted in Sankara Nethralaya for his eye treatment and was admitted on 20.5.02 and was discharged on 22.5.02 and paid Rs.26,327/- from 6.5.02 to 27.5.02 and the 1st complainant made several representations and submitted the original bills, discharge summary etc. along with a letter to the opposite party. The 1st complainant received a communication from the opposite party on 14.6.02 stating that his policy No.413502 / 201/ 2129/185/2002 in “closed” and on 18.6.02 stating that the claim is closed as “ No Claim” and also one another communication dated 18.6.02 stating that the competent authority, as such decided to cancel the policy and would request the 1st complainant to return the enclosed Voucher duly stamped and signed to enable the opposite party to refund the proportionate premium’ and also one another communication on 11.6.02 stating that the complainant’s Janatha Personal Accident Policy, bearing No. 418502/2403/18279/99 for a sum of Rs.5,00,000/- for a period from 22.5.98 to 21.5.10 was cancelled on 11.6.02 and asked to collect Rs.990/- being the proprata premium refundable for the unexpired period. The opposite party disallowed the legitimate claim of the 1st complainant and the complainant was made to run from pillar to post for his legitimate claim. The complainant arriving at the quantum of damages in fairness of things estimates for Rs.1,00,000/- from the opposite party along with the amount of Rs.44,516/- already spent for medical expenses. The 1st complainant died intestate on 9.9.03 leaving behind complainants 2 to 4 as his legal heirs to succeed to all his assets and liabilities. Therefore the opposite party is to be directed to pay Rs.44516/- for the medical expenses already spent by the 1st complainant and to pay Rs.1,00,000/- for deficiency of service, mental agony and torture sustained and to pay the cost of Rs.1000/- towards the proceedings. 2. The averments in the counter filed by the opposite party are as follows: The opposite party does not admit any of the allegations made in the complaint save those that are specifically admitted herein. It is a fact that the complainant has taken insurance policies as alleged by him. The complainant has been a known Diabetic patient with all the diseases arise on account of it and taking treatment. The complainant suppressing the disease gave the proposal for Medical Insurance Policy and obtained the same. The Policies have been obtained fraudulently by giving false statements with regard to his disease and the treatment he was having. Hence the opposite party is not liable to reimburse the Medical expenses allegedly incurred by the complainant as claimed in the complaint. Even the medical certificates produced by him for his alleged treatment shows about his main disease with which he was suffering for a long number of years even prior to the proposals and which is the cause for the other ailments. In these circumstances had to deny the claim of the complainant and to allege that there was deficiency of service resulting in mental agony and torture to the complainant and hence the opposite party has to pay the claim amount and damages are all without basis and untenable. Hence dismiss the complaint with costs. 3. Additional Counter filed by the opposite party is as follows: The opposite party reiterates that the complaint filed by the deceased complainant is not maintainable, particularly on the ground of suppression of his previous diseases namely, diabetics and other related diseases. The deceased complainant fraudulently obtained Insurance Policy knowing fully well about his deceases only with a view to obtain money from the Insurance Company, deceitfully. Apart from the other relevant factors already made in the Counter filed, the present Legal Representatives of the deceased who are impleaded in the complaint have no Locus standi to persue the complaint by now the deceased Balakrishnan. 4. Now the points for consideration are: (a) Whether there is any deficiency in service, on the part of the opposite party? (b) Whether the complainants are entitled to the reliefs asked for?. 5. Ex.A1 to Ex.A10 were marked on the side of the complainants and Ex.B1 to Ex.B4 were marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite party have been filed. No oral evidence let in by either side. 6. POINT NO. (a): It is admitted case of the parties that the 1st complainant had taken Medi claim Insurance Policy bearing No.413502/201/MC/185/2002 for Rs.50,000/- and for three of his family members of Rs.25,000/- each for a period from 1.11.01 to 31.10.02 and taken another Janatha Personal Accident Policy for self bearing No.413502/2403/18279/99/NB for a sum of Rs.5,00,000/- for period from 22.5.1998 to 21.5.2010, from the opposite party. Whileso, the 1st complainant took treatment in Schell Eye Hospital, Vellore from 14.12.01 to 19.1.02 for Proriterative Diabetic Retinopathy and he paid a sum of Rs.11427/- The 1st complainant again took treatment in Scudder Memorial Hospital, Ranipet from 18.3.02 to 30.3.02 for Diabetic Ulder RT foot with Osteomyclitis, Hypertension CRF and he had paid a sum of RS.6762.7. The 1st complainant again took treatment for his eye in Sankara Nethralaya from 6.5.02 to 27.5.02 and he paid a sum of Rs.26,327/-. The 1st complainant submitted the letters Ex.A3 to Ex.A5 along with original medical bills for medi claim to the opposite party. But the opposite party had repudiated or closed the above three Medi claim under the letters Ex.A7 to Ex.A9 and Janatha Personal Accident Policy was also cancelled under Ex.A6. 7. The complainant contended that the opposite party disallowed the legitimate claim of the 1st complainant on tilncy grounds. The opposite party was under obligation to pay the assured Medi-claim amount. Having failed to pay the assured medi-claim, the opposite party had caused deficiency in service and direct the opposite party to pay the assured medi-claim and the damages mentioned in the complaint for deficiency of service and mental agony. In this connection the learned counsel for the complainants relied upon the following Judgments of State Consumer Disputes Redressal Commission, Kerala and Lucknow. I. 2000 (2) CPR Page 253 The Senior Divisional Manager, L.I.C. of India ..Vs.. K.C.Vijayan Wherein the State Consumer Disputes Redressal Commission, Kerala held that “Under treatment – Suppressed material facts – Repudiation made after about 28 months – opposite party not succeeded in proving with definiteness that deceased suffering from abdominal tuberculosis prior 20.12.1991 – District Forum rightly granted aforesaid relief – No interference called for. “ II 2001 (3) CPR 388 Life Insurance Corporation of India, ..Vs.. Smt. Krishna Devi Wherein the State Consumer Disputes Redressal Commission, Lucknow held that ”Consumer Protection Act, 1986 – Sections 2 and 14 – Claim under life insurance policy - Claim repudiated on ground that about three years before proposal of policy, deceased was suffering from tuberculosis – Onus was on LIC to prove that prior to filling up of proposal, deceased was suffering from tuberculosis – Cause of death was pneumonia fever – Doctor’s certificate produced by LIC showed that deceased was treated for pneumonia for last three days – Certificate would not prove that deceased was in know of this disease on the date of filling of proposal – Appellant failed to prove that deceased suffered from tuberculosis when policy was taken - District Forum was justified in allowing claim under the policy” 8. The opposite parties contented that the complainant has been a known Diabetic patient with all the diseases arise on account of it and taking treatment. The Medical Certificates Ex.A3 and Ex.A4 produced by the 1st complainant for his alleged treatment shows about his main disease with which he was suffering for a long number of years even prior to the proposals and which is cause for the other ailments. But the 1st complainant did not disclose there facts before the opposite party at the time of presenting the Proposal Forms for insurance policy. As per Section 45 of Insurance Act, the previty of contract between the parties purely on the pre- of ubirimafide on atmost good faith. Since any declaration made by the assured found false the contract becomes null and void under section 45 of Insurance Act. So, there is no deficiency in service on the part of the opposite party. Therefore the opposite party is not liable to pay the amount claimed by the complainants in the complaint. In this connection the learned counsel for the opposite party is relying upon the following Judgements of Hon’ble Supreme Court. I. AIR 2008 SUPREME COURT 424 P.J. Chacko and Anr. ..Vs.. Chairman, Life Insurance Corporation of India & Ors. Wherein the Hon’ble Supreme Court is held that ” The well settled law in the field of insurance is that contracts of insurance including the contracts of life assurance are contracts uberrima fides and every fact of materiality must be disclosed otherwise there is good ground for rescission. And this duty to disclose continues up to the conclusion of the contract and covers any material alteration in the character of the risk which may take place between proposal and acceptance. “ (A) Insurance Act (4 of 1938) S.45 – Insurance Policy – Repudiation – Deliberate wrong answer given by Insured having a great bearing on contract of insurance - Policy may be repudiated. Contract Act (9 of 1872) S.126. II 2009 (IV) CPJ 8 (SC) SATWANT KAUR SANDHU ..Vs.. NEW INDIA ASSURANCE COMPANY LTD. Wherein the Hon’ble Supreme Court is held that “Section 45 – Insurance Regulatory and Development Authority (Protection of Policy Holder’s Interests) Regulations, 2002 – Regulation 2(1)(d) – Insurance – Mediclaim Policy – Suppression of material facts – Policy holder suffering from chronic diabetes and renal failure not disclosed – Claim repudiated by insurer – Section 45, Insurance Act, applicable in life insurance policy, has no application in case related to mediclaim policy – Contract of insurance, contract of uberrimae fidei – Insured under obligation to make true and full disclosure of information, within his knowledge – Insured on regular haemodialysis, fully aware of state of health – Statement made in proposed form as to state of health palpably untrue to his knowledge - Suppression of material facts proved – Repudiation of claim justified. “ It is further contended that the decision cited by the learned counsel for the complainant is not applicable to the facts of this case. 9. The 1st complainant has made proposal for mediclaim insurance policy Ex.B1 & Ex.B2 before the opposite party on 1.11.01. It is seen from the Ex.B2, dated 1.11.01 that the assured 1st complainant made a declaration that he was in good health and free from physical and mental disease or infirmity or medical complaints. From the perusal of Ex.A3 medical records of Schell Eye Hospital, Vellore, page-9 a certificate dated 15.1.02 issued by the above Hospital, it is seen that the 1st complainant Mr.Balakrishnan took treatment for underwent right eye Pan Retinal Photocoagulation for right eye high risk proliferative Diabetic Retinopathy from 14.12.2001 to 11.1.2002. The 1st complainant himself stated in his claim letter Ex.A3 that he affected Eye Proliferative Diabetic Retinopathy for the treatment of Eye disease. Further, on perusal of 2nd claim letter Ex.A4, along with the Discharge Summary dt.30.3.2002 of SCUDDER MEMORIAL HOSPITAL, Ranipet, it is seen that Mr. Balakrishnan was admitted with history of Ulcer over the right foot for the past 15 days which he developed following an injury. History of right big toe amputation done in Vellore one year ago. He is a know hypertension and Diabetics on regular treatment. From the perusal of 3rd claim letter Ex.A5 along with the bills and medical records of Sankara Nethralaya & Diabetics Supplies Centre, Chennai, it is seen that the 1st complainant had affected Eye vitreous Hemorrhage Comlvied Retinal Detachment and took treatment for diabetics also in the above Hospital from 6.5.02 to 27.5.02 10. The opposite party send a letter Ex.A7 dated 14.6.02 to the 1st complainant stating that Retinopathy is due to advanced case of diabetic, and as such, the same will be the pre-existing disease, hence, as per the policy condition NO.4.1. the claim is closed. Other two letters Ex.A8 and Ex.A9 dated 18.6.02 send by the opposite party to the 1st complainant stating that due to ulcer over the right foot following an injury, and as the same in due to advance stage of Diabetic, which is pre-existing disease to the subject policy, the claim is not full merit for settlement, hence the claim is closed. Therefore, from the perusal of Ex.A3 to Ex.A5 and Ex.B7 to Ex.B9, it is clear that at the time of submitting the Proposal Form for medi claim insurance, the 1st complainant know fully well about his health condition of Diabetic, but he did not disclose the above facts in the Ex.B2. 11. Considering the effect of Sec.45 of the Insurance Act, the Insurance Policy is a contract falling in the category of utmost good faith on the part of the assured, and if the assured has not made full disclosure correctly or in other words, if the declaration so made found to be false to the knowledge of the declarant, then the insurance company is entitled to repudiate the claim. Further, in Ex.B4 Accident Insurance Policy Conditions No.4 says that “ The company shall not be liable to make any payment under the Policy in respect of any claim if such claim be in any manner fraudulent or supported by any fraudulent statement or device. Whether by the insured or by any person on behalf of the insured” Condition No.5 says that “ The Company may at any time by notice in writing cancel this Policy provided that the Company shall in that case return to the insured the ten last paid premium less a pro-rata part there off or the portion of the current insurance period when shall have expired.” The Hon’ble Supreme Court has observed in above two cases cited by the learned counsel for the opposite party that under section 45 of Insurance Act deliberate wrong answer given or statement made in proposal form as to state of health condition and true to his knowledge he suppressed of material facts the Insurance Company can repudiate the claim. 12. In this case, at the time of presenting the Ex.B1 & Ex.B2 proposal for medi-claim insurance policy before the opposite party, the assured 1st complainant has stated falsely that he was in good health and free from physical and mental disease or infirmity or medical complaints. Under Section 45 of the Insurance Act, insured the complainants under obligation to make true and full disclosure of information, within his knowledge. But he made false statement before the opposite party on 1.11.2001 regarding his health condition. Based on the suppression of material facts the opposite parties of the Insurance Company cancelled the claim under policy condition No.4. Therefore, there is no deficiency in service on the part of the opposite party. The authorities cited by the learned counsel for the complainant is not applicable to this case. But the authorities cited by the learned counsel for the opposite party is squarely applicable to the facts and circumstances of this case. 13. Hence, taking all the above facts into consideration from the contention in the complaint and the counter, as well as proof affidavit of the both the parties, and from the documents Ex.A1 to A10 and Ex.B1 to Ex.B4, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite party herein. Hence we answer this point (a) as against the complainant herein. 14. POINT NO : (b):- In view of our findings on point (a), since, we have come to the conclusion that the complainants herein have not clearly proved the deficiency in service on the part of the opposite party herein. We have also come to the conclusion that the complainants is not at all entitled to any relief asked for by them, in this complaint. Hence we answer this point (b) also as against the complainant s herein. 15. In the result this complaint is dismissed. No costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 28th day of April 2010. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1 - -- - Policy No.413502/201/MC/1851/2002 Ex.A2- -- - Policy No. 413502/2403/18279/99/NB. Ex.A3- -- - X-copy of the bills by CMC Schall eye Hospital, Vellore. Ex.A4- -- - X-copy of the bills by Scudder Memorial Hospital, Ranipet. Ex.A5 -- - X-copy of the bills by Shankara Netalaya Hospitals Mrs. Diabetic Centre, Madras. Ex.A6- 11.6.02 - Communication from opposite party. Ex.A7- 14.6.02 - Communication from the opposite party. Ex.A8- 18.6.02 - Communication from the opposite party. Ex.A9- 18.6.02 - Communication from the opposite party. Ex.A10- 27.6.02 - Office copy of the lawyer’s notice. Opposite party’s Exhibits: Ex.B1- -- - Proposal Form. Ex.B2- -- - Form of the Insured Personnel details. Ex.B3- -- - The Individual Medi claim Form. Ex.B4- -- - Revised Janata Personal Accident Insurance Policy. MEMBER-I MEMBER-II PRESIDENT. | 
