EFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL

Present: Sri.Y.Reddappa Reddy, M.A., L.L.M., President,

And

Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Tuesday the 5^th day of May, 2015

C.C.No.120/2013

Between:

E.Bhagyamma,

W/o Late E.Maheswara,

D.No.7-47, Main Road

Merugu Doddi Village and Post,

Kurnool District.                                                            …Complainant

                                                                   -Vs-

1. Sri Ram Life Insurance Company Limited,

    Represented by its Assistant General Manager,

    Plot No.31 and 32 Fifth 5^th Floor, Ramky Selenium,

    Besides Andhra Bank, Training Centre,

    Financial Dist Gacchi Bouli,

    Hyderabad-500 032.

2. Sri Ram Life Insurance Company Limited,

    Represented by its Branch Manager,

    C/o M/s Sriram Chit Fund Private Limited,

    D.No.1-730, UTY Complex,

    Yemmiganur-518 360.                                                 …OPPOSITE PARTies

This complaint is coming on this day for orders in the presence of SriS.Siva Rama Krishan Prasad, Advocate for complainant and Sri.S.V.Krishna Reddy, Advocate for opposite parties 1 and 2 and upon perusing the material papers on record, the Forum made the following.                                          

   ORDER

(As per Smt. S.Nazeerunnisa, Lady Member)

  C.C. No.120/2013

1.       This complaint is filed under section 12 of Consumer Protection Act, 1986 praying:-

1. To direct the opposite parties to pay sum assured i.e., Rs.4,00,000/- with accrued bonus and other benefits arisen out of the policy bearing No.NP 081100097589 (Shri Raksha)

2. To direct the opposite parties to pay sum assured i.e., Rs.2,00,000/- with accrued bonus and other benefits arisen out of the policy bearing No.LN080900089707 (Shri Plus).

3. To award the sum of Rs.50,000/- towards compensation causing mental agony to the complainant by the opposite party No.2.

4. To costs of the complainant.

5. To such other relief or reliefs as the Honourable Forum deems fit and proper in the circumstances of the case.

2.    The case of the complaint in brief runs as follows:- The  complainant is the wife of Late.E.Maheswara Goud. E.Mageswara Goud insured his life with opposite party No.1 through opposite party No.2 and obtained two policies under “SHRI RAKSHA” and “SHRI PLUS”, policy bearing No.081100097589 on 13.09.2011 for the sum assured amount of Rs.4,00,000/- with annual premium of Rs.50,195/- with its date of commencement 07.11.2011 and second policy bearing No.LN080900089707 on 23.06.2009  for a sum assured amount of Rs.2,00,000/- with annual premium of Rs.20,000/-  with its date of commencement 20.07.2024. The insured died on 25.05.2013. The complainant, being nominee submitted claim form along with relevant documents to opposite parties.  But the opposite parties repudiated the claim on 30.10.2013 on the ground that the deceased E.Maheswara Goud suppressed material facts with regard to his ill health.  As he was treated for Carcenomacolon with liver metastasis at Indo-American Cancer Institute, Hyderabad.  The claim is not early claim it was made by the complainant in October 2013. Under Section 45 of Insurance Act, “POLICY NOT TOBE CALLED IN QUESTION ON GROUND OF MISS STATEMENT AFTER TWO YEARS”.  In-respect of policy bearing No.NP081100097589, the opposite parties has collected Rs.600/- under the head “HEALTH EXTRA” from the deceased under F.I.B., term 22 and proposal was refer to the panel doctor of the opposite parties and insured was subjected to medical tests, under these circumstances, question of suppression of health condition of the deceased does not arise and repudiation of the policy is arbitrary.   There is deficiency of service on the part of opposite parties and caused mental agony to the complainant.  Hence the complaint.

3.       The opposite party No.1 filed written version and the same is adopted by opposite party No.2.  Opposite party No.1 filed written version stating that the complaint is not maintainable either in law or on facts.  It is admitted that the deceased/insured E.Maheswara Goud during his life time had taken two policies “SHRI RAKSHA” AND “SHRI RAM PLUS” Policy bearing Nos.NP081100097589, sum assured amount of Rs.4,00,000/- and LN080900089707 sum assured amount of Rs.2,00,000/- and the complainant is the nominee under the policy.  Basing on the information provided by the deceased in the proposal form, this opposite party has accepted the risk on his life and issued policy on good faith.  The insured died on 25.05.2013 and the complainant made a claim to the opposite parties.  The opposite parties appointed a investigator, after due enquiry it was found that the deceased was suffering from Carcenomacolon with liver metastasis since, 2009, the discharge summary issued by Indo-American Cancer Institute Research Canter, Hyderabad and the cause of death of deceased/insured was due to pre-existing disease.  But the deceased/insured did not disclose about his health condition and violated the terms and condition of the policy, the contract has become void.  Therefore the opposite parties are not liable to pay amount toward s the death benefits under the policy claim.  There is no deficiency of service on the part of opposite parties and the complaint is liable to be dismissed.

4.       On behalf of the complainant Ex.A1 to Ex.A5 are marked and sworn affidavit of the complainant is filed.  On behalf of the opposite parties Ex.B1 to Ex.B3 are marked and sworn affidavit of opposite parties are filed.

5.       Both sides filed Written Argument.

6.       Now the points that arise for consideration are:

1. Whether there is deficiency of service on the part of opposite parties?

2. Whether the complainant is entitled for the reliefs as prayed for?

3. To what relief?

7.      POINTS i and ii:- Admittedly the opposite parties issued two policies under the name “SHRI RAKSHA” and “SHRI PLUS” policies bearing Nos.081100097589 on 13.09.2011 for the sum assured of Rs.4,00,000/- with its date of commencement is 07.11.2011 with annual premium of Rs.50,195/- and second policy bearing No.LN080900089707 on 23.06.2009 for an assured amount of Rs.2,00,000/- with its date of commencement is 20.07.2024 with its annual premium of Rs.20,000/-.  The complainant is the nominee under the both policies.  Ex.A1 is the photo copy of SHRI PLUS policy and Ex.A2 is the photo copy of investment port folio under the policy bearing No.LN080900089707 along with proposal form.  The insured died on 25.05.2013, the complainant being the nominee made a claim along with relevant documents under both policies to the opposite parties. Ex.A3 is the photo copy of Certificate of Identity and Burial of deceased.  Ex.A4 is the photo copy of claim form submitted by the complainant to opposite parties.  The opposite parties repudiated the claim on 30.10.2013 under Ex.A5, on the ground that the insured/deceased suppressed the material fact in regard to his health condition but the insured was hale and healthy his death was suddenly happen.  It is the case of opposite parties that As the insured/deceased was suffering from Carcenomacolon with liver metastasis since, 2009 and he had taken treatment at Indo-American cancer Institute and Research Centre, Hyderabad for period of 21.01.2009 to 25.01.2009.  The photo copy of Discharge summary and treatment record is marked as Ex.B1.  The insured deliberately not disclose the above said fact in proposal form.  Therefore the opposite parties rightly repudiated the claim of the complainant.  The photo copy of repudiation letter is marked as Ex.A5=Ex.B3 dated 30.10.2013.  The learned counsel appearing for the opposite parties contended that life insurance policies are contracts governed by the principle of “UBERRIMA FIDE”.  It is the duty of the proposer to disclose about his health condition, pre-diseases habits of the life proposed to insurance company.  But the insured concealed the pre-existing disease and obtained policies.  The panel doctor was examined the deceased/life assured and the said medical test was done for general examination.  The opposite parties collected additional premium under the Health Extra for ailment of very severe anemia.  It is further argued that under the general checkup the cancer could not be diagnosed.  The deceased/insured suppressed the material fact that he was suffering from cancer before taking the policy.  The insured violated the terms and conditions of the policy, thus the complainant is not entitled for any benefits under the above policy.

8.       The learned counsel for appearing for the complainant argued that he deceased was an agriculturist.  Though the opposite parties collected a sum of Rs.600/- towards “HEALTH EXTRA” from the deceased under F.I.B., term 22.  The opposite parties are estopped to repudiate the claim under the principle of Ubberrimafide.  (The proposal form is filled up by the agent of the opposite parties.  The agent did not explain the terms and conditions and the opposite parties not supplied the same to the deceased/insured.) The deceased never suffered from any disease as alleged by the opposite parties. 

          The opposite parties neither adduce the evidence of their panel doctor not filed an affidavit of doctor, who treated the deceased before taking the policy.  The burden of proof heavily lies on the opposite parties to prove the alleged pre-existing disease to support his version he cited a decisions reported in III (2014) CPR (NC) 401 SBI life Insurance Corporation of India Limited -Vs- Harvinder Kaur and another and II (2012) CPR (NC) 398 National Insurance Company Limited -Vs- Sardar Kulbir Singh where in the Honourable National Commission held that the onus of proving ground for  repudiation of Insurance claim lies heavily on Insurance Company since  Insurance Company failed to produce primary evidence to establish ground for repudiation of claim.  The photo copy of discharge Card produced by petitioner to establish that the deceased concealed fact that he was suffering from Pulmonary Hypertension while obtaining the policy is not accepted.  In the instant case also the opposite party filed the photo copy of Discharge Summary of deceased issued by Indo American Cancer Institute Centre, Hyderabad that he was suffering from Cancer before taking the policy.  The opposite parties did not choose to either examine the doctor who issued discharge summary or to file affidavit of the doctor, who treated the insured.  The opposite parties did not take steps to call for original records.  Basing on the Xerox copies of Discharge Summary and without filing any affidavit of a doctor of affidavit, who treated the deceased/insured or of agent who filled up the proposal form, we could not hold that the deceased/insured suffered from any pre-existing disease (Cancer) as alleged by the opposite parties.  The onus to prove is on the opposite parties to establish that he was suffering from cancer and he had been taken treatment for the alleged disease before obtaining the policies from the opposite parties.  The opposite parties failed to establish that the insured/deceased was suffering from cancer and had taken treatment prior to taking the policy.  We consider all the material placed on record and in the light of above decisions we hold the opinion that there is deficiency of service on the part of the opposite parties for not settling the claim of the complainant and caused mental agony to the complainant.

9.      POINTS iii:  The complainant prayed that to direct the opposite parties to pay an assured amount Rs.4,00,000/- under the policy bearing No.NP081100097589 and to pay an assured amount of Rs.2,00,000/- under the policy bearing No.LN080900089707 and further direct to pay Rs.50,000/- towards compensation for mental agony. Basing on the facts and evidence placed on record we hold a view that the complainant is entitled for assured amount of Rs.4,00,000/- and for an assured amount of Rs.2,00,000/- under the above two policies with interest at 9% per annum from the date of complaint i.e., on 12.12.2013  till the date of payment and the complainant further entitled for compensation of Rs.5,000/-towards mental agony.    

10.     In the result, the complaint is partly allowed directing the opposite parties jointly and severally liable to pay an assured amount Rs.4,00,000/- under the policy bearing No.NP081100097589 and to pay an assured amount of Rs.2,00,000/- under the policy bearing No.LN080900089707 with interest 9% per annum from the date of complaint i.e., on 12.12.2013  till the date of payment, the opposite parties are further directed to pay Rs.5,000/- towards mental agony and Rs.1,000/-as costs of the case.  Time for compliance is one month from the date of receipt of this order.

          Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 5^th day of May, 2015.

        Sd/-                                                                              Sd/-

LADY MEMBER                                                                             PRESIDENT

APPENDIX OF EVIDENCE 

   Witnesses Examined

For the complainant: Nil                                     For the opposite parties: Nil

List of exhibits marked for the complainant:-

Ex.A1           Photo copy of Policy schedule SHRI PLUS

Ex.A2          Photo copy of Policy, the investment risk in investment port folio is borne by the policy holder along with proposal for insurance.

Ex.A3          Photo copy of Certificate of Identity and Burial or Cremation, Yemmiganur.

Ex.A4          Photo copy of Claimant’s statement (Claim Form-A).

Ex.A5           Photo copy of Repudiation Letter dated 30.10.2013

List of exhibits marked for the opposite parties:-

Ex.B1          Photo copy of Discharge Summary issued by Indo-American Cancer Institute and Research Centre, Hyderabad.

Ex.B2                   Photo copy of Proposal for Insurance.

Ex.B3                    Photo copy of Repudiation Letter dated 30.10.2013

        Sd/-                                                                               Sd/-

LADY MEMBER                                                                              PRESIDENT

// Certified free copy communicated under Rule 4 (10) of the A.P.S.C.D.R.C. Rules, 1987//

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