DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

 Dated this the 14th day of August 2009.

 Present : Smt. H. Seena, President

: Smt. Preetha.G. Nair (Member)

: Smt. Bhanumathi.A.K. (Member)

C.C.No.80/2008

V. Surendran

S/o. Vasu

Vasu Nivas

Neithala

Erattakulam Post

Palakkad – 678 622 - Complainant

(Adv. T.R. Rajagopalan)

V/s

1. Tata AIG Life Insurance Co Ltd

Delphi – B Wing, 2^nd Floor Arcade Avenue

Hiranandani Business Park

Powai

Mumbai – 400 076

(Adv .C. Madhavankutty )

2. P. Vijaya Menon

S/o. K. Krishnan Nair

Perumbullisssery

Cherpu

Thrissur – 680 561. - Opposite Parties

(Adv.P. Anil )

O R D E R

By Smt. Seena.H, President

Complainant availed a mediclaim policy from the Ist opposite party through 2^nd opposite party who is the agent of the Ist opposite party. The period of the policy was from 01/11/2006 to 31/10/2007. The case of the complainant is that he was admitted in Palana Hospital, Palakad on 14/08/2007 due to hypertension. Later he was referred to K G Hospital, Coimbatore. The doctors at K G Hospital adviced brain surgery and the said surgery was done. Complainant preferred a claim form along with the requisite documents to the opposite parties on 08/10/2007. Ist opposite party sent a reply repudiating the claim on 17/01/2008 stating that the complainant was suffering from hypertension, dyslipidemia and had history of dispynea and was advised for angiogram prior to the date of applicaiton and that was not disclosed in the application dated 01/11/2006. According to the complainant, he was not suffering from any of such diseases except hypertension which was

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brought under control. Hypertention is not a disease which affect patients health permanently and is not a justification for repudiation. Complainant caused a lawyer notice dated 27/02/2008 against the Ist opposite party. Ist opposite party sent no reply. Complainant claim a total amount of Rs.4,00,000/- including the hospital expenses. Complainant claims no relief against the 2^nd opposite party.

Contentions setforth by the Ist opposite party is as follows:

Ist opposite party admits the policy and the happening of the incident within the period of the policy. According to Ist opposite party, the complainant concealed material facts regarding his health in the proposal form. Further complainant has answered in negative for the question that whether he is in the habit of drinking and smoking. Discharge summary issued by the K G Hospital also reveals the fact that the complainant was a chronic alcoholic and smoker for the past 20 years. Complainant has fraudulently suppressed this fact in the proposal form. Again the medical certificate dated 01/12/2007 also clearly shows that complainant was suffering from hypertention for the past 2 years. The same can be ascertained from the discharge summary prepared by Palana Institute of Medical Science dated 14/08/2007. The discharge summary clearly shows that complainant suffered from accelerated hypertention with mild renal failure and was treated at local hospital. It also reveals the fact that the complainant was experiencing dyspnea on excretion class II since 9 months. Thus non disclosure of past medical history will lead to rescinding of the policy. Hence there is no deficiency in service on the part of opposite party.

The evidence adduced consists of the affidavit of the complainant and Exhibit A1 to A3 marked on the side of the complainant. Ist opposite party filed affidavit . Exhibit B1 to B9 marked on the side of Ist opposite party. 2^nd opposite party has not filed any affidavit.

Now the issues are:

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

2. If so, what is the reliefs and cost?

Issue No.1

There is no dispute as to issuance of the policy and that the incident took place within

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the period of the policy. The only reason stated in the repudiation letter is that the complainant has concealed past medical history regarding hypertension, dyslipidemia, dyspnea on excretion class II and was adviced for angiogram. Opposite party is relying on Ext.B9 series for substantiating this contentions. We are not in a position to accept the said conention in the absence of convincing evidence. Mere narration of the diseases under the head history in the discharge summary is not at all a convincing evidence. Further there is no whisper regarding the fact that the complainant was a chronic alcoholic and is in the habit of smoking for the past 20 years in the repudiation letter. Moreover opposite party has not established that these are material facts leading to the diseases for which claim is prefered. Opposite party has produced Exhibit B7 which is the certificate issued by the concerned doctor of K G Hospital, Coimbatore where in it is stated that the complainant was suffering from hypertention for the last 2 years. Opposite party has not taken any steps to examine the signatory of the said certificate. No affidavit of the concerned doctor also filed. Hence we are not in a position to rely on the said document. In lIC of India V Babri Nageswaramma and Other II(2005) CPJ 9 (NC), it was held that doctors certificate without affidavit in support is no basis for repudiating the claim.

It is settled law that in case the insured suppresses any material fact that adversely affects the policy, the onus to prove material concealment lies on the insurer. Here Opposite party failed to establish the same with cogent and convincing evidence.

In the aforesaid facts and circumstances, we are of the view that the act of opposite party in repudiating the genuine claim of the complainant amounts to deficiency in service on their part.

Issue No.2

As deficiency in service on the part of the Ist Opposite party is established complainant is entitled for the claim amount together with compensation. Complainant has claimed an amount of Rs.4 lakhs under different heads. Supporting documents are not produced before the Forum. As per the policy 2,50,000/- is seen as the face amount. Complainant has not claimed any relief against the 2^nd opposite party.

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Hence complaint allowed. Ist opposite party is directed to pay an amount of Rs.2,00,000/- being the claim amount together wth Rs.5,000/- as compensation for the deficiency in service on the part of the Ist opposite party and Rs.1000/- as cost of the proceedings. Order shall be complied within one month from the date of receipt of order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realization.

Pronounced in the open court on this the 14^th day of August, 2009

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

APPENDIX

Witness examined on the side of Complainant

Nil

Witness examined on the side of Opposite party

Nil

Exhibits marked on the side of the complainant

1. Ext. A1 series – Copy of hospitalization Claim of TATA AIG Life dated 9^th October 2007

2. Ext .A2 – Copy of letter from TATA AIG LIFE dated 17^th January 2008 to Surendran.V

3. Ext. A3 series - Copy of acknowledgement card

Exhibits marked on the side of the Opposite Party

1. Ext. B1series – Copy of TATA AIG Health First Application Form

2. Ext. B2 – Copy of Policy Information Page of TAT AIG Life Insurance company Ltd

3. Ext. B3 - Copy of letter dated 29/09/07

4. Ext. B4 – Copy of Hospitalization Claim dated 09.10.07

5. Ext. B5 - Copy of Discharge summary of K G Hospital

6. Ext. B6 series – Copy of Hospitalization Claim Form

7. Ext. B7 series – Copy of the letter dated 14/08/07 along with discharge summary

8. Ext. B8 series- Copy of questionnaire for interviewing of TATA AIG Life insurance Company ltd

9. Ext. B9 series– Copy of letter No.CO07001644/Mumbai/M/C330822301 dtd 17^th Jan 2008 of TATA AIG

Forums Exhibits

Nil

Costs

Rs.1000/- (Rupees One thousand only)

Forwarded/By Order

Senior Superintendent