The Branch Manager, Bajaj Allianz Life Insurance Co. Ltd., Bellary V/S Smt. Yenkamma W/o. Late Yallappa Kengal - Consumer Court Case

Karnataka

Raichur

CC/09/86

Smt. Yenkamma W/o. Late Yallappa Kengal - Complainant(s)

Versus

The Branch Manager, Bajaj Allianz Life Insurance Co. Ltd., Bellary - Opp.Party(s)

Sri. T.M. Swamy

24 Feb 2010

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. CC/09/86

Smt. Yenkamma W/o. Late Yallappa Kengal						...........Appellant(s)
Vs.
The Branch Manager, Bajaj Allianz Life Insurance Co. Ltd., Bellary The Branch Manager, Bajaj Allianz Life Insurance Co. Ltd., Sindhanoor						...........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 one Smt. Yenkamma W/o. late Yellappa Kengal against the Opposites No-1 the Branch Manager, Bajaj Allianz, Insurance Company Ltd., Bellary, and the opposite No-2 the Branch Manager, Bajaj Allianz Life Insurance Company Ltd., Sindhanoor for to direct the opposite to pay an assured sum of Rs. 4,08,000/- with accured and death benefits of deceased, to pay a compensation amount of Rs. 50,000/- towards mental harassment with cost of Rs. 5,000/- and interest. 2. The brief facts of the complainant case are that, late Yellappa Kengal is the husband of the complainant, subscribed Bajaj Allianz New Family Gain policy with opposite bearing No. 80802265 on 02-01-08 for an assured sum of Rs. 4,08,000/-. The wife Smt. Yenkamma i.e, the complainant made as a nominee under the said policy. Yellappa Kengal died due to ill health i.e, Cerebro Vascular Accident on 16-11-08, even after taking the best treatment from the doctors at Sindhanor and VIMS Hospital, Bellary. The complainant filed claim petition along with necessary documents before opposites but opposite repudiated the claim of complainant through letter dt. 02-04-09 on the ground that mis representation of age, income and suppression of pre existing diseases of the policyholder at the time of taking policy. Further it is the case of the complainant that, the life assured has not at all mis represented and suppressed by any facts which were within his knowledge either to the opposite or their agent therefore the repudiation of the claim by the opposite is illegal and without any base of records which amounts to deficiency in service and unfair trade practice on the part of the opposites. This complaint is filed for the reliefs as prayed in it. 3. The opposites Insurance Company Ltd., appeared in this case through their Advocate, filed written version by admitting the policy called to as Bajaj Allianz new family gain for an assured taken by late Yellappa Kengal husband of complainant for assured sum of Rs. 4,08,000/- by paying premium of Rs. 12,000/- and the same was commencing from 02-01-08 and to be matured on 02-01-2023. It is contended by opposites that, the said late Yellappa Kengal was negligent in taking the treatment from a recognized doctor, but he has availed all his treatment from quacks/ bare foot doctors and then when the matter has become serious he was shifted to Bellary, by the time he was shifted to Bellary VIMS the things had gone out of control and died. The late Yellappa Kengal who is the husband of the complainant obtained policy by suppressing material real facts regarding his age, income and suppression of pre existing disease. He was very well new that he was suffering from an incurable ailment which would lead to his death as such with a vile intention and by suppressing the real facts he had himself insured, further more no policy would have been issued to him if he had gone through an agent as such he took the via media route of becoming a member of RMP wherein they would automatically cover him under us, as such the policy rightly repudiated by it, there was no negligence and unfair trade practice on its part, there is no cause of action to file the present complaint as the policy is ill gotten hence prayed for to dismiss the complaint among other grounds with cost. 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, her husband late Yellappa Kengal obtained Bajaj Allianz New Family Gain Policy bearing No. 80802265 for assured sum of Rs. 4,08,000/- from opposites company who died on 16-1-08 thereafter she filed a claim petition before opposite with necessary records being the nominee under the said policy, but opposite repudiated her claim on untenable ground it shows its negligence and thereby opposite Insurance company found guilty under deficiency in their services.? 2. Whether complainant is entitled for the reliefs as prayed in her 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 and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 6. To prove the facts involved in this point, affidavit-evidence of the complainant was filed, she was noted as PW-1. The documents Ex.P-1 to Ex.P-9 are marked. On the other hand the affidavit-evidence of Branch Manager by name Vishwanath Reddy B. S/o. Lingareddy B. of opposite No-2 Company was filed, he was noted as RW.1. One Medical Literature is filed on behalf of opposite except that no documents filed. 7. In the instant case, some of the undisputed facts between the parties are:- 1. Subscription of Bajaj Allianz New Family Gain Policy from opposite by late Yellappa Kengal at his life time bearing No. 80802265 dt. 02-01-08 for assured sum of Rs. 4,08,000/- in the event of his death is not in dispute. 2. It is undisputed fact that present complainant Smt. Yenkamma is the nominee under the said policy. 3. It is undisputed fact that policyholder late Yenkappa Kengal died on 16-11-08. 4. Further it is undisputed fact that this complainant filed claim petition with necessary records before opposites company for to make the payment of the assured sum under the policy. 5. It is further undisputed fact that the opposites company repudiated all the liabilities under the said policy on the ground that policyholder late Yenkappa Kengal with held correct information regarding his age, income and pre existing disease vide repudiation letter Ex.P-9. 8. In the light of undisputed facts between the parties, it is not necessary for us to appreciate documents Ex.P-1, copy of policy, Ex.P-5 death certificate of late Yellappa Kengal, Ex.P-6 Cash receipt issued by VIMS Hospital, Bellary, Ex.P-7 Certificate of Hospital treatment, Ex.P-8 Medical Attendant Certificate of the hospital regarding the treatment. 9. Now the only point for our consideration and determination is as to whether late Yellappa Kengal husband of complainant obtained Bajaj Allianz New Family Gain Policy referred above by suppressing the material facts regarding age, income, occupation and pre existing disease and thereby opposite has rightly repudiated the claim of complainant under the said policy. 10. In view of the ground raised by the opposite insurance company regarding age of the late Yellappa Kengal husband of the complainant we have referred the Ex.P-4 i.e, Transfer Certificate issued by Head Master Government Higher Primary School, Nehru Nagara Camp, Siruguppa. On perusal of said Ex.P-4 it is very clear that the date of birth mentioned under the policy at Page No-2 and the age under the transfer certificate i.e, Ex.P-4 are one and the same. Under such circumstances, we do not find any reasons to believe that, the policyholder late Yellappa has suppressed/ mis represented about his date of birth while taking the policy as contended by the opposites in their repudiation letter under Ex.P-9. The opposites in their written version further contended that, late Yellappa was working as a daily labour and had income only to the tune of Rs. 20,000/- p.a. but in order to prove their contention the opposites have not filed any documents to show that his income is only Rs. 20,000/- p.a. Under such circumstances the version of the opposites cannot be believed. Apart from this the opposites have also taken other contention regarding suppression of pre existing disease but here in this case, the cause of death is as per Ex.P-8 and Ex.P-7 is Cerebro Vascular Accident the same was also admitted by the opposites. But in order to prove the reasons for death and same has been caused due to pre existing disease the opposites have relied upon the literature submitted by their counsel which is taken out from the internet. The said literature reveals that the Cerebro Vascular Accident is also called as stroke and same will be caused suddenly due to rapidly developing loss of brain functions due to disturbance in the blood supplied to the brain caused by a blocked or burst blood vessel. As per the literature submitted by the opposites the cause for the Cerebro Vascular Accident is because of more than 40 diseases which are clearly mentioned in Page No-3 of the said Medical Literature. No doubt there is a detail reasons and causes for the said diseases with the husband of the complainant was suffering and died but in order to prove the said diseases by the late Yellappa Kengal no documents/medical reports were produced by the opposites in order to show that he was suffering from any one of the diseases he was having at the time of his death. The report issued by the VIMS Hospital was also not given any report in this regard regarding pre existing of any diseases which are mentioned under the literature. The opposites have also not produced any documents or medical reports from Sindhanoor doctors those who have treated the disease Yellapa Kengal and from which the deceased was suffering during his life time or before his death for the reason as stated by the opposites. Mere say of the opposites in this regard cannot be believed. It is the duty of the opposites to prove their defence but they have utterly failed to prove all the allegations against the complainant. Hence their defence has been rejected by this Forum as not proved. 11. In this regard we have referred the ruling cited in AIR 2001 SC at page 549 Head Note B wherein the Honble Supreme Court held that repudiation of claim by insurer merely on grounds that matter of repudiation of policy should not be dealt with in mechanical and routine manner but should be on one of extreme care and caution. 12. Further we have referred the principles of the ruling reported in 1996(3) CPJ 8 (SC) LIC of India V/s. Smt. Channabasamma. As per the law laid down by the Honble Supreme Court in the said ruling, the burden of proving that insured had made false representation and suppression of material facts undoubtedly is on Insurance Company. 13. Further their lordships observed as concealment of some facts will not amount to the concealment of material facts and if there is fraudulent suppression of material facts in the proposal, the policy would be vitiated, otherwise not. 14. In the ruling reported in AIR 2000 Supreme Court 1040 M/s. Modern Insulator Ltd., V/s. Oriental Insurance Co. Ltd., the Honble Supreme Court held as fundamental principles of insurance law that utmost on good faith, it cannot be obsolved by the contracting parties and good faith for bids either party from non discharging of the facts with the party known. The insurer has the duty to disclose and similarly it is the duty of insurance company and its agent to disclose of the material facts in their knowledge, since the obligations of good faith applies to both equally. 15. Now it is very much clear from the principles of law laid down by the Supreme Court about the fundamental principles of insurance law which depends on the good faith of both parties, in case of suppression of material facts, it is the duty of insurance company to prove it. Hence it is law that the burden of proving the suppression of material facts regarding age, income, occupation and pre existing disease by giving wrong answers in filing proposal form by the late Yellapa Kengal i.e, husband of the complainant is on the insurer. But insurance company has not proved any one of their allegations against the complainant. 16. Under the above circumstances, we are of the view that, repudiating the genuine claim of the complainant by opposites is nothing but negligence in its service, accordingly opposites insurance company found guilty under deficiency in its service towards the complainant and thereby we answered Point No-1 in affirmative. POINT NO.2:- 17. Admittedly the assured sum of the policy subscribed by late Yellappa Kengal is of Rs. 4,08,000/- complainant being the nominee under the said policy, she is entitled to get an amount of Rs. 4,08,000/- from opposite Insurance Company under the policy. 18. The complainant prayed for to award compensation amount of Rs. 50,000/- towards mental agony and prayed for to grant an amount of Rs. 5,000/- as the cost of this litigation. We have taken note of the entire facts and circumstances of this case and we are of the view that the complainant is entitled to get an amount of Rs. 3,000/- under the head of the deficiency in service and she is entitled to get an amount of Rs. 2,000/- towards cost of this litigation, as such she is entitled to recover a total amount of Rs 4,13,000/-. 19. As regards to the rate of interest claimed, we are of the view that it is a proper and fit case to grant interest at the rate of 9% p.a. on the total sum of Rs. 4,13,000/- and the complainant is entitled for to recover of the said rate of interest from the date of this complaint till realization of the full amount, accordingly we answered Point No.2. POINT NO.3:- 20. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 4,13,000/- from the opposite 1 & 2. The complainant also entitled to recover future interest at the rate of interest 9% p.a. on the above total sum from the date of the judgment till realization of the full amount. The opposites 1 & 2 are hereby directed to comply this order within six weeks from the date receipt copy of this order. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 16-09-09) 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 one Smt. Yenkamma W/o. late Yellappa Kengal against the Opposites No-1 the Branch Manager, Bajaj Allianz, Insurance Company Ltd., Bellary, and the opposite No-2 the Branch Manager, Bajaj Allianz Life Insurance Company Ltd., Sindhanoor for to direct the opposite to pay an assured sum of Rs. 4,08,000/- with accured and death benefits of deceased, to pay a compensation amount of Rs. 50,000/- towards mental harassment with cost of Rs. 5,000/- and interest. 2. The brief facts of the complainant case are that, late Yellappa Kengal is the husband of the complainant, subscribed Bajaj Allianz New Family Gain policy with opposite bearing No. 80802265 on 02-01-08 for an assured sum of Rs. 4,08,000/-. The wife Smt. Yenkamma i.e, the complainant made as a nominee under the said policy. Yellappa Kengal died due to ill health i.e, Cerebro Vascular Accident on 16-11-08, even after taking the best treatment from the doctors at Sindhanor and VIMS Hospital, Bellary. The complainant filed claim petition along with necessary documents before opposites but opposite repudiated the claim of complainant through letter dt. 02-04-09 on the ground that mis representation of age, income and suppression of pre existing diseases of the policyholder at the time of taking policy. Further it is the case of the complainant that, the life assured has not at all mis represented and suppressed by any facts which were within his knowledge either to the opposite or their agent therefore the repudiation of the claim by the opposite is illegal and without any base of records which amounts to deficiency in service and unfair trade practice on the part of the opposites. This complaint is filed for the reliefs as prayed in it. 3. The opposites Insurance Company Ltd., appeared in this case through their Advocate, filed written version by admitting the policy called to as Bajaj Allianz new family gain for an assured taken by late Yellappa Kengal husband of complainant for assured sum of Rs. 4,08,000/- by paying premium of Rs. 12,000/- and the same was commencing from 02-01-08 and to be matured on 02-01-2023. It is contended by opposites that, the said late Yellappa Kengal was negligent in taking the treatment from a recognized doctor, but he has availed all his treatment from quacks/ bare foot doctors and then when the matter has become serious he was shifted to Bellary, by the time he was shifted to Bellary VIMS the things had gone out of control and died. The late Yellappa Kengal who is the husband of the complainant obtained policy by suppressing material real facts regarding his age, income and suppression of pre existing disease. He was very well new that he was suffering from an incurable ailment which would lead to his death as such with a vile intention and by suppressing the real facts he had himself insured, further more no policy would have been issued to him if he had gone through an agent as such he took the via media route of becoming a member of RMP wherein they would automatically cover him under us, as such the policy rightly repudiated by it, there was no negligence and unfair trade practice on its part, there is no cause of action to file the present complaint as the policy is ill gotten hence prayed for to dismiss the complaint among other grounds with cost. 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, her husband late Yellappa Kengal obtained Bajaj Allianz New Family Gain Policy bearing No. 80802265 for assured sum of Rs. 4,08,000/- from opposites company who died on 16-1-08 thereafter she filed a claim petition before opposite with necessary records being the nominee under the said policy, but opposite repudiated her claim on untenable ground it shows its negligence and thereby opposite Insurance company found guilty under deficiency in their services.? 2. Whether complainant is entitled for the reliefs as prayed in her 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 and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 6. To prove the facts involved in this point, affidavit-evidence of the complainant was filed, she was noted as PW-1. The documents Ex.P-1 to Ex.P-9 are marked. On the other hand the affidavit-evidence of Branch Manager by name Vishwanath Reddy B. S/o. Lingareddy B. of opposite No-2 Company was filed, he was noted as RW.1. One Medical Literature is filed on behalf of opposite except that no documents filed. 7. In the instant case, some of the undisputed facts between the parties are:- 1. Subscription of Bajaj Allianz New Family Gain Policy from opposite by late Yellappa Kengal at his life time bearing No. 80802265 dt. 02-01-08 for assured sum of Rs. 4,08,000/- in the event of his death is not in dispute. 2. It is undisputed fact that present complainant Smt. Yenkamma is the nominee under the said policy. 3. It is undisputed fact that policyholder late Yenkappa Kengal died on 16-11-08. 4. Further it is undisputed fact that this complainant filed claim petition with necessary records before opposites company for to make the payment of the assured sum under the policy. 5. It is further undisputed fact that the opposites company repudiated all the liabilities under the said policy on the ground that policyholder late Yenkappa Kengal with held correct information regarding his age, income and pre existing disease vide repudiation letter Ex.P-9. 8. In the light of undisputed facts between the parties, it is not necessary for us to appreciate documents Ex.P-1, copy of policy, Ex.P-5 death certificate of late Yellappa Kengal, Ex.P-6 Cash receipt issued by VIMS Hospital, Bellary, Ex.P-7 Certificate of Hospital treatment, Ex.P-8 Medical Attendant Certificate of the hospital regarding the treatment. 9. Now the only point for our consideration and determination is as to whether late Yellappa Kengal husband of complainant obtained Bajaj Allianz New Family Gain Policy referred above by suppressing the material facts regarding age, income, occupation and pre existing disease and thereby opposite has rightly repudiated the claim of complainant under the said policy. 10. In view of the ground raised by the opposite insurance company regarding age of the late Yellappa Kengal husband of the complainant we have referred the Ex.P-4 i.e, Transfer Certificate issued by Head Master Government Higher Primary School, Nehru Nagara Camp, Siruguppa. On perusal of said Ex.P-4 it is very clear that the date of birth mentioned under the policy at Page No-2 and the age under the transfer certificate i.e, Ex.P-4 are one and the same. Under such circumstances, we do not find any reasons to believe that, the policyholder late Yellappa has suppressed/ mis represented about his date of birth while taking the policy as contended by the opposites in their repudiation letter under Ex.P-9. The opposites in their written version further contended that, late Yellappa was working as a daily labour and had income only to the tune of Rs. 20,000/- p.a. but in order to prove their contention the opposites have not filed any documents to show that his income is only Rs. 20,000/- p.a. Under such circumstances the version of the opposites cannot be believed. Apart from this the opposites have also taken other contention regarding suppression of pre existing disease but here in this case, the cause of death is as per Ex.P-8 and Ex.P-7 is Cerebro Vascular Accident the same was also admitted by the opposites. But in order to prove the reasons for death and same has been caused due to pre existing disease the opposites have relied upon the literature submitted by their counsel which is taken out from the internet. The said literature reveals that the Cerebro Vascular Accident is also called as stroke and same will be caused suddenly due to rapidly developing loss of brain functions due to disturbance in the blood supplied to the brain caused by a blocked or burst blood vessel. As per the literature submitted by the opposites the cause for the Cerebro Vascular Accident is because of more than 40 diseases which are clearly mentioned in Page No-3 of the said Medical Literature. No doubt there is a detail reasons and causes for the said diseases with the husband of the complainant was suffering and died but in order to prove the said diseases by the late Yellappa Kengal no documents/medical reports were produced by the opposites in order to show that he was suffering from any one of the diseases he was having at the time of his death. The report issued by the VIMS Hospital was also not given any report in this regard regarding pre existing of any diseases which are mentioned under the literature. The opposites have also not produced any documents or medical reports from Sindhanoor doctors those who have treated the disease Yellapa Kengal and from which the deceased was suffering during his life time or before his death for the reason as stated by the opposites. Mere say of the opposites in this regard cannot be believed. It is the duty of the opposites to prove their defence but they have utterly failed to prove all the allegations against the complainant. Hence their defence has been rejected by this Forum as not proved. 11. In this regard we have referred the ruling cited in AIR 2001 SC at page 549 Head Note B wherein the Honble Supreme Court held that repudiation of claim by insurer merely on grounds that matter of repudiation of policy should not be dealt with in mechanical and routine manner but should be on one of extreme care and caution. 12. Further we have referred the principles of the ruling reported in 1996(3) CPJ 8 (SC) LIC of India V/s. Smt. Channabasamma. As per the law laid down by the Honble Supreme Court in the said ruling, the burden of proving that insured had made false representation and suppression of material facts undoubtedly is on Insurance Company. 13. Further their lordships observed as concealment of some facts will not amount to the concealment of material facts and if there is fraudulent suppression of material facts in the proposal, the policy would be vitiated, otherwise not. 14. In the ruling reported in AIR 2000 Supreme Court 1040 M/s. Modern Insulator Ltd., V/s. Oriental Insurance Co. Ltd., the Honble Supreme Court held as fundamental principles of insurance law that utmost on good faith, it cannot be obsolved by the contracting parties and good faith for bids either party from non discharging of the facts with the party known. The insurer has the duty to disclose and similarly it is the duty of insurance company and its agent to disclose of the material facts in their knowledge, since the obligations of good faith applies to both equally. 15. Now it is very much clear from the principles of law laid down by the Supreme Court about the fundamental principles of insurance law which depends on the good faith of both parties, in case of suppression of material facts, it is the duty of insurance company to prove it. Hence it is law that the burden of proving the suppression of material facts regarding age, income, occupation and pre existing disease by giving wrong answers in filing proposal form by the late Yellapa Kengal i.e, husband of the complainant is on the insurer. But insurance company has not proved any one of their allegations against the complainant. 16. Under the above circumstances, we are of the view that, repudiating the genuine claim of the complainant by opposites is nothing but negligence in its service, accordingly opposites insurance company found guilty under deficiency in its service towards the complainant and thereby we answered Point No-1 in affirmative. POINT NO.2:- 17. Admittedly the assured sum of the policy subscribed by late Yellappa Kengal is of Rs. 4,08,000/- complainant being the nominee under the said policy, she is entitled to get an amount of Rs. 4,08,000/- from opposite Insurance Company under the policy. 18. The complainant prayed for to award compensation amount of Rs. 50,000/- towards mental agony and prayed for to grant an amount of Rs. 5,000/- as the cost of this litigation. We have taken note of the entire facts and circumstances of this case and we are of the view that the complainant is entitled to get an amount of Rs. 3,000/- under the head of the deficiency in service and she is entitled to get an amount of Rs. 2,000/- towards cost of this litigation, as such she is entitled to recover a total amount of Rs 4,13,000/-. 19. As regards to the rate of interest claimed, we are of the view that it is a proper and fit case to grant interest at the rate of 9% p.a. on the total sum of Rs. 4,13,000/- and the complainant is entitled for to recover of the said rate of interest from the date of this complaint till realization of the full amount, accordingly we answered Point No.2. POINT NO.3:- 20. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 4,13,000/- from the opposite 1 & 2. The complainant also entitled to recover future interest at the rate of interest 9% p.a. on the above total sum from the date of the judgment till realization of the full amount. The opposites 1 & 2 are hereby directed to comply this order within six weeks from the date receipt copy of this order. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 16-09-09) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.