BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No. 689 OF 2012 AGAINST C.C.NO.142 OF 2011 DISTRICT CONSUMER FORUM KURNOOL
Between
1. The Manager,
HDFC Standard Life Insurance Co.Ltd.,
2nd Floor, A Wing, Trade Start Bldg.,
Junction of Kandivita and MV Road
Andhari Kurla Road Andheri(E)
Mumbai
2. The Branch Manager
HDFC Standard Life Insurance Co.Ltd.,
1st Floor, Adil Complex, H.No.51/1, FD 1,
Above Honda Showroom, Bellary Road
Kurnool-002
Appellants/opposite parties
A N D
Sri M.Shankar Reddy S/o Narayana Reddy
aged about Major, Occ: Agriculturist
R/o H.No.45-142-26E 11G/5, Venus Colony
V.R.Colony, Kurnool-003
Respondent/complainant
Counsel for the Appellants M/s S.Gopal Singh
Counsel for the Respondent M/s S.Venkatshwar Reddy
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
WEDNESDAY THE NINETH DAY OF OCTOBER
TWO THOUSAND THIRTEEN
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The opposite party is the appellant. The appeal is challenge to the order of the District Forum whereby the appellant was directed to pay assured sum of `10,00,000/- along with costs of `500/- to the respondent.
2. The factual matrix of the case is that the respondent’s wife, Maheshwari submitted proposal on 17.07.2010 for HDFC Endowment Super Insurance Policy for an amount of `10,00,000/- by paying initial deposit of `50,000/- and on submission of statement of health. The policy term was 10 years and the yearly premium was `50,000/-. She had undergone medical examination conducted by Doctor N.Venu Gopal who had sent the entire medical record to the appellant and the appellant having satisfied itself with the report of the doctor, the appellant accepted the proposal and issued the insurance policy on 29.07.2010 bearing number 13800032 adjusting the initial deposit of `50,000/- to premium.
3. The respondent submitted that on 28.10.2010 the respondent’s wife developed severe abdomen pain and she was taken to Dr.K.Ramachandra Naidu and she visited him again on 8.11.2010 and she had undergone CT scan on 9.11.2010 which revealed that she was suffering from liver cancer and she was advised constant monitoring for effective treatment and she had undergone Liver Function Test at regular intervals and she died on 01.06.2011.On 23.06.2011 the respondent lodged claim and got issued notice on 25.08.2011 to the appellant. The appellant repudiated the claim on 31.08.2011 and the respondent challenged the repudiation of his claim on the premise that his wife did not suppress any material fact while obtaining the insurance policy.
4. The appellant was proceeded exparte.
5. The respondent in support of his claim, filed his affidavit and the documents, ExA1 to A12.
6. The District Forum allowed the complaint basing on the evidence on record and observed that there was no material on record to show that the respondent’s wife suffered from cancer by the date of submission of the proposal form to the appellant-insurance company.
7. Aggrieved by the order of the District Forum, the opposite party-insurance company has filed appeal contending that the respondent’s wife obtained the insurance policy on 29.07.2010 and died on 01.06.2011 due to colon cancer which itself goes to show that she suppressed the fact that she suffered from cancer before taking the insurance policy. It is contended that the claim is hit by Section 45 of the Insurance Act and that the insured knew that the statement she made in the proposal is false.
8. The counsel for the appellant and respondent has filed written arguments.
9. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
10. The respondent’s wife paid premium of `50,000/- on 29.07.2010 and acknowledging receipt of the amount, the appellant issued letter dated 30.07.2010. The prescription issued by doctor K.Ramachandra Naidu indicates the respondent’s wife suffered abdominal pain and it is mentioned that she was not suffering from jaundice nor did she experience vomiting.
11. The respondent’s wife was diagnosed to have suffered from cancer when she had undergone tests on 9.11.2010 at Mediplus which revealed her ESR as 70 mm/hour and the CT scan of upper abdomen has shown evidence of Heterogeneously enhancing soft issue density lesions in Liver in Segment 5 & 8. The radiologist suspected metastasis and her hepatic ducts and ovaries are observed as under:
“Dilated intra hepatic biliary radicles & right & left hepatic ducts noted. Enlarged both ovaries with heterogeneous enhancement & surrounding infiltrations”.
12. The respondent’s wife died of multiple liver metastases with unknown primary and she was treated with palliative medicines. She died on 1.06.2011 at her house. The learned counsel for the appellant has contended that the insured died of colon cancer and cancer cannot be developed within a short period and she was undergoing treatment from the date of obtaining the insurance policy. Merely because the insured died within one year of her obtaining the insurance policy, it cannot be said that she suppressed her health condition. The appellant has to establish by dependable evidence that the respondent had knowledge of the fact that she was suffering from cancer and she had undergone treatment therefor.
13. The documents produced by the respondent do not show the insured suffering from liver cancer prior to the time of submitting the proposal and in such circumstances it is for the appellant to show as to how it would impute knowledge of the disease to the insured for the time prior to the date of issuing the insurance policy. It is not the case of the appellant that it got conducted claim investigation and obtained medical record to rebut the evidence on record as also to establish that the insured had knowledge of the fact that she was suffering from cancer for treatment of which disease, she had undergone treatment.
14. In Venkata Naidu Vs LIC of India IV (2011) CPJ 6 (SC) the Hon’ble Supreme Court held that the insurance company has to prove by cogent evidence that the insured did not disclose correct facts relating to his illness and in the absence of tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment, the repudiation of claim is not justified. It is also held that there should be nexus between the cause of the death and the disease concealed by the insured.
15. In the case on hand, the appellant has not come forward to show what evidence it has in its possession to prove that the insured suppressed that she was suffering from liver cancer and had undergone treatment therefor at the time of submission of proposal. In such circumstances, it is difficult to hold that the insured had knowledge of the disease and suppressed the fact that she suffered from such disease. For the reasons, this Commission is not inclined to accept the plea of the learned counsel for the appellant either to set aside the order of the District Forum or remit back the matter to the District Forum providing opportunity to the appellant to prove its case.
16. In the result, the appeal is dismissed confirming the order of the District Forum. There shall be no separate order as to costs. Time for compliance four weeks.
MEMBER
MEMBER
Dt.09.10.2013
కె.ఎం.కె.*
