The Assistant General Manager, Sriram Life Insurance Co. Ltd., V/S Somanath Sanganal S/o. Late Hanumanthappa - Consumer Court Case

Karnataka

Raichur

CC/09/72

Somanath Sanganal S/o. Late Hanumanthappa - Complainant(s)

Versus

The Assistant General Manager, Sriram Life Insurance Co. Ltd., - Opp.Party(s)

Sri. T.M. Swamy

15 Feb 2010

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. CC/09/72

Somanath Sanganal S/o. Late Hanumanthappa						...........Appellant(s)
Vs.
The Assistant General Manager, Sriram Life Insurance Co. Ltd., Sri. S.B. Reddy S/o. Not known,						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by the complainant by name Somanath Sanganal against opposite Nos. 1 & 2 U/sec. 12 of Consumer Protection Act for to direct them to pay an amount of Rs. 1,00,000/- towards LIC policy dt. 28-09-06 with interest at the rate of 18% p.a. and cost of Rs. 5,000/-. 2. The brief facts of the complainant case are that, his father by name late Hanumanthappa took LIC policy for accident Rider and FIB Rider bearing Policy No. NP050600014439 dt. 29-09-06 with assured sum of Rs. 1,00,000/- with its maturity dt. 28-09-2022 from opposite No-1 through its agent opposite No-2. His father Hunumanthappa died on 29-05-2008 in his native place Kalmangi due to heart attack. After his death, he flied claim petition before opposite No-1 being a nominee under the said policy, but opposite NO-1 repudiated his claim vide its letter dt. 16-12-08 with untenable grounds, it shows its negligence in settling his claim and thereby both opposites found guilty under deficiency in their services. 3. Opposite No-1 appeared in this case through its Advocate filed its written version. Opposite No-2 remained Ex-parte. The brief facts of the written version of opposite No-2 are that, this Forum has no jurisdiction to entertain this complaint as complainant is not a consumer and opposite No-1 is not service provider as defined under C.P. Act. During the life time of Hanumanthappa Sanganal taken policy Shri Life and commencing from 28-09-06 for assured sum of Rs. 1,00,000/- for a term of (16) years. The complainant is a nominee under the said policy. The said Hanumanthappa was suffering with Asthma, Blood Pressure and Diabetes since 2005, he died due to said diseases. He suppressed all the facts at the time of taking policy, the said Hanumanthappa took treatment with Dr. Basavaraj, RMP, Kalmangi since three years prior to his death. It is material suppression of him for to take benefit of the policy, the complainant filed claim petition that was enquired by the company and investigation reveals that late Hanumanthappa was suffering from such disease since 2005, accordingly it repudiated the claim petition of complainant, there was no deficiency in service on its part, accordingly prayed for to dismiss the complaint with exemplary cost and interest. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, his father late Hanumanthappa subscribed Shri Life Insurance Policy dt. 28-09-06 for assured sum of Rs. 1,00,000/- from opposite No-1 and he died on 29-05-08 due to heart attack and thereafter complainant being the nominee under the said policy filed claim petition before opposite No-1, but his claim petition was repudiated on untenable grounds, opposites 1 & 2 shows their negligence in settling his claim petition and thereby both opposites found guilty under deficiency in their services.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint. 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative. (2) As discussed in the body of this judgement. (3) In-view of the findings on Point No- 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-8 are marked. On the other hand affidavit-evidence of Assistant General Manager of opposite No-1 Insurance Company was filed he was noted RW-1. Documents Ex.R-1 to R-16 are marked. 7. Subscription of LIC policy by name Sri Life dt. 28-09-06 for assured sum of Rs. 1,00,000/- by Hanumanthappa at his life time from opposite No-1 Insurance Company is not in dispute. The complainant being real son of late Hanumanthappa and also a nominee under the said policy filed claim petition after the death of his father Hanumanthappa on 29-05-08, repudiation of the claim of the complainant by opposite No-1 vide its letter dt. 16-12-08 are not in dispute. Hence we have not referred related documents filed by the parties for further appreciation. 8. We have taken for appreciation of disputed points in between the parties. The first point which was under serious dispute between the parties at the time of advancing in their respective final arguments is that, according to opposite No-1 this Forum has no territorial jurisdiction to deal with the subject matter of this case, on the other hand, the learned advocate for complainant submitted that, opposite No-1 issued Insurance Policy by collecting premium amount through opposite No-2 who is the permanent resident of Raichur and thereby cause of action arose to complainant in Raichur after repudiation of his claim. 9. In pursuance of the submissions made on both sides, we have gone through the contents of written version of opposite No-1, which is before us to answer correctly to this point, opposite No-1 no where took this contention in his written version with regard to territorial jurisdiction of this Forum. First time the learned advocate for opposite No-1 took this contention at the time of final arguments on the main case. In the said circumstances, we are of the view that opposite No-1 cannot be permitted to resist this complaint, on the ground that, this Forum has no territorial jurisdiction without pleadings and taking such contentions for the first time in the final arguments cannot be for consideration as such we rejected this contention of opposite No-1. However we have gone through the entire pleadings of the parties and we are of the view that, the entire case of parties squarely false under the requirement of sec. 11(2) of the C.P. Act, as such on this ground also we have rejected the contention of the opposite No-1. 10. The main version for opposite No-1 for repudiation of the claim of complainant vide its letter dt. 16-12-08 are shown in its pleadings at Para-6 & 7 on Page No-2 as Hanumanthappa was suffering with Asthma, Blood Pressure and Diabetes since 2005. The statement of the complainant in that regard dt. 14-08-08 supports the fact that, Hanumanthappa was suffering from such diseases since 2005. He took regular treatment with Dr. Basavaraj, RMP, Kalmangi, the Hanumanthappa suppressed those material facts with regard to his prior diseases and took this LIC policy along with other LIC policies totally six in numbers, as such suppression of material facts and obtaining LIC policy is nothing but violation of the terms and conditions of the policy, accordingly it rightly repudiated the claim of the complainant. 11. The learned advocate for complainant submitted his arguments that, the sufferings of his father late Hanumanthappa and taking treatment by him with Dr. Basavaraj, RMP, Kalmangi and suppression of those facts at the time of taking policy are all created story by the opposite No1 only with an intention to avoid the payments of the assured sum. 12. The learned advocate for opposite No-1 relied on documents Ex.R-7 which is said to be an investigation report of his department and another document Ex.R-8 said to have a letter written by the complainant to opposite No-1 with regard to death of his father due to past ill health he also relied on Ex.R-9 said to be a certificate issued by the doctor who treated the father of complainant. 13. The learned advocate for opposite relied on the ruling reported in 2009 (4) KCCR SN 206 of the Honble Supreme Court New India Assurance Company Ltd., V/s. Satpal Singh Muchal. 14. The learned advocate for complainant relied on three rulings noted below. 1) I (2009) CPJ 161 (NC). 2) II (2008) CPJ 391 (KSCDRC). 3) (I) 2006 CPJ 494 (DSCDRC). 15. We have also referred the following rulings. (1) AIR 2000 SC 1014 M/s. Madhavan Insulators Limited V/s. Oriental Insurance Company. (2) 1996 (III) CPJ 8 (SC) LIC of India V/s. Smt. Channabasamma. (3) CTJ 377 (CP) NC National Insurance Company Ltd., V/s. Bipul Kunda and (4) Another ruling reported in 2009 (I) CPR 368 Chief Post Master General V/s. P. Shivashankram. 16. As per the principles of the ruling reported in AIR 2000 Supreme Court 1014 M/s. Madhavan Insulator Limited, it is the fundamental duty of the Insurance Company to prove the fact of suppression of material facts by the insured at the time of taking the insurance policy. Keeping in view of the principles laid down by their lordships in the said ruling opposite No-1 relied on Ex.R-7 investigation report. Ex.R-8 the letters said to have written by the present complainant to opposite No-1 and Ex.R-9 certificate said to have issued by Dr. Basavarj, RMP, Kalmangi. According to the certificate, deceased was suffering from Asthma, Blood Pressure and Diabetes and also chest pain. It further reveals that deceased was taking treatment since three years till to his death. Ex.R-9 is not a certificate under his letter head. It is under the letter of one Jagadeshwari Mdical & General Stores, Tavaragera. Admittedly he is RMP doctor; he is not an expert doctor either in sugar diseases or diseases related to chest. 17. As per the decisions of the Honble National Commission in a ruling reported in CTJ 377 (CP) NC and 2009 (I) CPR 368, there should be a nexus in between the previous disease and to his death, suppression of material facts means, not disclosing such material facts with an intention to get wrongful gain by knowing himself that the statement given by him are false. Keeping in view of the principles of the said rulings, we have referred a ruling of the Honble Karnataka State Commission reported in (II) 2008 CPJ 391 which was referred by the complainant in this case discloses of fact that, hyper tension cannot be treated as a disorder. In another ruling reported in (I) 2006 CPJ 494 of the Honble Delhi State Commission, history of diabetes, mellitious, hypertension and Astama are all common and controllable diseases. The principles laid down by their lordships of the Honble Supreme Court in a ruling reported in 2009 (IV) KCCR SN 206 referred by the learned advocate for opposite No-1 pertaining to a case of kidney failure which was intimated to the insurer at the time of taking policy. 18. Keeping in view of the documents referred by the parties and also the principles laid down by their lordships in the above said rulings, we are of the view, that the certificate Ex.R-9 might be a certificate created by the Insurance Company after thought. His affidavit-evidence was not filed, there was no hurdle for opposite No-1 for to file his affidavit-evidence, instead of filing an application for to summon him. Affidavit-evidence of investigator who said to have conducted investigation and filed his investigation report as per Ex.R-7 not filed. In the above said circumstances and in view of the principles of the ruling reported in AIR 2000 SC 1014, we are of the view that opposite No-1 Insurance Company has not proved suppression of material facts by late Hanumanthappa Sangal, while taking Insurance policy from the opposite No-1 and further we hold that denial of the genuine claim of the complainant who being a nominee under the said policy on the ground of material suppression is amounting to negligence and deficiency in service on its part. Accordingly we answered Point No-1 in affirmative. 19. Admittedly the sum assured of the policy bearing No. NP 050600014439 dt. 29-09-06 is of Rs. 1,00,000/-, as such the complainant is entitled to get the assured sum of Rs. 1,00,000/- being a nominee of late Hanumanthappa under the said policy from opposite No-1. 20. As regards to the deficiency in service by the opposite No-1, a lumpsum amount of Rs. 3,000/- is awarded to the complainant. 21. Another lumpsum amount of Rs. 5,000/- is awarded to the complainant towards cost of this litigation. 22. In view of the instant case opposite No-2 is an agent of opposite No-1 who got Insurance premium from late Hanumanthappa thereafter he forwarded entire records to opposite No-1, thereafter premium amount was collected by opposite No-1 from late Hanumanthappa. Under the said circumstances, we have not noticed any kind of deficiency in service on the part of opposite No-2 as he is not answerable to the complainant with regard to payment of policy amount. Accordingly this complaint is not maintainable against opposite No-2. The opposite No-1 shall pay the above said total amount of Rs. 1,05,000/- to the complainant with future interest at the rate of 9% p.a. from the date of this complaint till realization of the full amount, accordingly we answered Point No-2. POINT NO.3:- 23. In view of our findings on Point No-1 & 2, we proceed to pass the following order: ORDER The complaint against opposite No-1 is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 1,05,000/- from the Opposite No-1 only. The complainant is also entitled to recover future interest at the rate of 9% p.a. on Rs. 1,05,000/- from the date of this complaint till realization of the full amount from opposite No-1 only. One month time is granted to the opposite No-1 for to make the payment of above said amount with interest to the complainant from the date of this judgment. The complaint against opposite No-2 is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 15-02-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by the complainant by name Somanath Sanganal against opposite Nos. 1 & 2 U/sec. 12 of Consumer Protection Act for to direct them to pay an amount of Rs. 1,00,000/- towards LIC policy dt. 28-09-06 with interest at the rate of 18% p.a. and cost of Rs. 5,000/-. 2. The brief facts of the complainant case are that, his father by name late Hanumanthappa took LIC policy for accident Rider and FIB Rider bearing Policy No. NP050600014439 dt. 29-09-06 with assured sum of Rs. 1,00,000/- with its maturity dt. 28-09-2022 from opposite No-1 through its agent opposite No-2. His father Hunumanthappa died on 29-05-2008 in his native place Kalmangi due to heart attack. After his death, he flied claim petition before opposite No-1 being a nominee under the said policy, but opposite NO-1 repudiated his claim vide its letter dt. 16-12-08 with untenable grounds, it shows its negligence in settling his claim and thereby both opposites found guilty under deficiency in their services. 3. Opposite No-1 appeared in this case through its Advocate filed its written version. Opposite No-2 remained Ex-parte. The brief facts of the written version of opposite No-2 are that, this Forum has no jurisdiction to entertain this complaint as complainant is not a consumer and opposite No-1 is not service provider as defined under C.P. Act. During the life time of Hanumanthappa Sanganal taken policy Shri Life and commencing from 28-09-06 for assured sum of Rs. 1,00,000/- for a term of (16) years. The complainant is a nominee under the said policy. The said Hanumanthappa was suffering with Asthma, Blood Pressure and Diabetes since 2005, he died due to said diseases. He suppressed all the facts at the time of taking policy, the said Hanumanthappa took treatment with Dr. Basavaraj, RMP, Kalmangi since three years prior to his death. It is material suppression of him for to take benefit of the policy, the complainant filed claim petition that was enquired by the company and investigation reveals that late Hanumanthappa was suffering from such disease since 2005, accordingly it repudiated the claim petition of complainant, there was no deficiency in service on its part, accordingly prayed for to dismiss the complaint with exemplary cost and interest. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, his father late Hanumanthappa subscribed Shri Life Insurance Policy dt. 28-09-06 for assured sum of Rs. 1,00,000/- from opposite No-1 and he died on 29-05-08 due to heart attack and thereafter complainant being the nominee under the said policy filed claim petition before opposite No-1, but his claim petition was repudiated on untenable grounds, opposites 1 & 2 shows their negligence in settling his claim petition and thereby both opposites found guilty under deficiency in their services.? 2. Whether complainant is entitled for the reliefs as prayed in his complaint. 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative. (2) As discussed in the body of this judgement. (3) In-view of the findings on Point No- 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 & 2:- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-8 are marked. On the other hand affidavit-evidence of Assistant General Manager of opposite No-1 Insurance Company was filed he was noted RW-1. Documents Ex.R-1 to R-16 are marked. 7. Subscription of LIC policy by name Sri Life dt. 28-09-06 for assured sum of Rs. 1,00,000/- by Hanumanthappa at his life time from opposite No-1 Insurance Company is not in dispute. The complainant being real son of late Hanumanthappa and also a nominee under the said policy filed claim petition after the death of his father Hanumanthappa on 29-05-08, repudiation of the claim of the complainant by opposite No-1 vide its letter dt. 16-12-08 are not in dispute. Hence we have not referred related documents filed by the parties for further appreciation. 8. We have taken for appreciation of disputed points in between the parties. The first point which was under serious dispute between the parties at the time of advancing in their respective final arguments is that, according to opposite No-1 this Forum has no territorial jurisdiction to deal with the subject matter of this case, on the other hand, the learned advocate for complainant submitted that, opposite No-1 issued Insurance Policy by collecting premium amount through opposite No-2 who is the permanent resident of Raichur and thereby cause of action arose to complainant in Raichur after repudiation of his claim. 9. In pursuance of the submissions made on both sides, we have gone through the contents of written version of opposite No-1, which is before us to answer correctly to this point, opposite No-1 no where took this contention in his written version with regard to territorial jurisdiction of this Forum. First time the learned advocate for opposite No-1 took this contention at the time of final arguments on the main case. In the said circumstances, we are of the view that opposite No-1 cannot be permitted to resist this complaint, on the ground that, this Forum has no territorial jurisdiction without pleadings and taking such contentions for the first time in the final arguments cannot be for consideration as such we rejected this contention of opposite No-1. However we have gone through the entire pleadings of the parties and we are of the view that, the entire case of parties squarely false under the requirement of sec. 11(2) of the C.P. Act, as such on this ground also we have rejected the contention of the opposite No-1. 10. The main version for opposite No-1 for repudiation of the claim of complainant vide its letter dt. 16-12-08 are shown in its pleadings at Para-6 & 7 on Page No-2 as Hanumanthappa was suffering with Asthma, Blood Pressure and Diabetes since 2005. The statement of the complainant in that regard dt. 14-08-08 supports the fact that, Hanumanthappa was suffering from such diseases since 2005. He took regular treatment with Dr. Basavaraj, RMP, Kalmangi, the Hanumanthappa suppressed those material facts with regard to his prior diseases and took this LIC policy along with other LIC policies totally six in numbers, as such suppression of material facts and obtaining LIC policy is nothing but violation of the terms and conditions of the policy, accordingly it rightly repudiated the claim of the complainant. 11. The learned advocate for complainant submitted his arguments that, the sufferings of his father late Hanumanthappa and taking treatment by him with Dr. Basavaraj, RMP, Kalmangi and suppression of those facts at the time of taking policy are all created story by the opposite No1 only with an intention to avoid the payments of the assured sum. 12. The learned advocate for opposite No-1 relied on documents Ex.R-7 which is said to be an investigation report of his department and another document Ex.R-8 said to have a letter written by the complainant to opposite No-1 with regard to death of his father due to past ill health he also relied on Ex.R-9 said to be a certificate issued by the doctor who treated the father of complainant. 13. The learned advocate for opposite relied on the ruling reported in 2009 (4) KCCR SN 206 of the Honble Supreme Court New India Assurance Company Ltd., V/s. Satpal Singh Muchal. 14. The learned advocate for complainant relied on three rulings noted below. 1) I (2009) CPJ 161 (NC). 2) II (2008) CPJ 391 (KSCDRC). 3) (I) 2006 CPJ 494 (DSCDRC). 15. We have also referred the following rulings. (1) AIR 2000 SC 1014 M/s. Madhavan Insulators Limited V/s. Oriental Insurance Company. (2) 1996 (III) CPJ 8 (SC) LIC of India V/s. Smt. Channabasamma. (3) CTJ 377 (CP) NC National Insurance Company Ltd., V/s. Bipul Kunda and (4) Another ruling reported in 2009 (I) CPR 368 Chief Post Master General V/s. P. Shivashankram. 16. As per the principles of the ruling reported in AIR 2000 Supreme Court 1014 M/s. Madhavan Insulator Limited, it is the fundamental duty of the Insurance Company to prove the fact of suppression of material facts by the insured at the time of taking the insurance policy. Keeping in view of the principles laid down by their lordships in the said ruling opposite No-1 relied on Ex.R-7 investigation report. Ex.R-8 the letters said to have written by the present complainant to opposite No-1 and Ex.R-9 certificate said to have issued by Dr. Basavarj, RMP, Kalmangi. According to the certificate, deceased was suffering from Asthma, Blood Pressure and Diabetes and also chest pain. It further reveals that deceased was taking treatment since three years till to his death. Ex.R-9 is not a certificate under his letter head. It is under the letter of one Jagadeshwari Mdical & General Stores, Tavaragera. Admittedly he is RMP doctor; he is not an expert doctor either in sugar diseases or diseases related to chest. 17. As per the decisions of the Honble National Commission in a ruling reported in CTJ 377 (CP) NC and 2009 (I) CPR 368, there should be a nexus in between the previous disease and to his death, suppression of material facts means, not disclosing such material facts with an intention to get wrongful gain by knowing himself that the statement given by him are false. Keeping in view of the principles of the said rulings, we have referred a ruling of the Honble Karnataka State Commission reported in (II) 2008 CPJ 391 which was referred by the complainant in this case discloses of fact that, hyper tension cannot be treated as a disorder. In another ruling reported in (I) 2006 CPJ 494 of the Honble Delhi State Commission, history of diabetes, mellitious, hypertension and Astama are all common and controllable diseases. The principles laid down by their lordships of the Honble Supreme Court in a ruling reported in 2009 (IV) KCCR SN 206 referred by the learned advocate for opposite No-1 pertaining to a case of kidney failure which was intimated to the insurer at the time of taking policy. 18. Keeping in view of the documents referred by the parties and also the principles laid down by their lordships in the above said rulings, we are of the view, that the certificate Ex.R-9 might be a certificate created by the Insurance Company after thought. His affidavit-evidence was not filed, there was no hurdle for opposite No-1 for to file his affidavit-evidence, instead of filing an application for to summon him. Affidavit-evidence of investigator who said to have conducted investigation and filed his investigation report as per Ex.R-7 not filed. In the above said circumstances and in view of the principles of the ruling reported in AIR 2000 SC 1014, we are of the view that opposite No-1 Insurance Company has not proved suppression of material facts by late Hanumanthappa Sangal, while taking Insurance policy from the opposite No-1 and further we hold that denial of the genuine claim of the complainant who being a nominee under the said policy on the ground of material suppression is amounting to negligence and deficiency in service on its part. Accordingly we answered Point No-1 in affirmative. 19. Admittedly the sum assured of the policy bearing No. NP 050600014439 dt. 29-09-06 is of Rs. 1,00,000/-, as such the complainant is entitled to get the assured sum of Rs. 1,00,000/- being a nominee of late Hanumanthappa under the said policy from opposite No-1. 20. As regards to the deficiency in service by the opposite No-1, a lumpsum amount of Rs. 3,000/- is awarded to the complainant. 21. Another lumpsum amount of Rs. 5,000/- is awarded to the complainant towards cost of this litigation. 22. In view of the instant case opposite No-2 is an agent of opposite No-1 who got Insurance premium from late Hanumanthappa thereafter he forwarded entire records to opposite No-1, thereafter premium amount was collected by opposite No-1 from late Hanumanthappa. Under the said circumstances, we have not noticed any kind of deficiency in service on the part of opposite No-2 as he is not answerable to the complainant with regard to payment of policy amount. Accordingly this complaint is not maintainable against opposite No-2. The opposite No-1 shall pay the above said total amount of Rs. 1,05,000/- to the complainant with future interest at the rate of 9% p.a. from the date of this complaint till realization of the full amount, accordingly we answered Point No-2. POINT NO.3:- 23. In view of our findings on Point No-1 & 2, we proceed to pass the following order: ORDER The complaint against opposite No-1 is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 1,05,000/- from the Opposite No-1 only. The complainant is also entitled to recover future interest at the rate of 9% p.a. on Rs. 1,05,000/- from the date of this complaint till realization of the full amount from opposite No-1 only. One month time is granted to the opposite No-1 for to make the payment of above said amount with interest to the complainant from the date of this judgment. The complaint against opposite No-2 is dismissed. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 15-02-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.