JUDGEMENT<br /> By Sri. Pampapathi President:-<br /> <br /> This is a complaint filed by complainant Smt. Pushpa.K. against the opposites 1 & 2 U/sec. 12 of Consumer Protection Act for to direct the opposites to pay assured sum of Rs. 4,00,000/- with interest vide policy dt. 08-06-07 due to death of her husband.<br /> <br /> 2. The brief facts of the complainant’s case are that, her husband Paramesh.K subscribed Unit Link Young Star Plus Policy for assured sum of Rs. 4,00,000/- from opposite Insurance Company, he was hail & healthy, at the time of making proposal, opposites accepted the proposal and issued policy dt. 08-06-07, complainant is nominee under the said policy. K. Paramesh started suffering from Kidney ailment in the month of August-07, he got treated in Rajiv Gandhi Super Specialty Hospital, Raichur and he died on 18-12-07. Thereafter complainant being a nominee and wife of deceased K. Paramesh filed claim petition along with necessary records before opposites, but opposites repudiated her claim on untenable grounds. Therefore she filed this complaint for the reliefs as noted in it.<br /> <br /> 3. The opposite appeared in this case through Advocate, filed written version by contending that, deceased Paramesh.K. gave false information in his proposal form deliberately even though he had knowledge of his health condition, kidney disorder, other ailments and taking treatment on so many occasions before submitting his proposal form dt. 04-06-07 intentionally he suppressed the material facts and obtained policy to get wrongful gain out of it. After death of K.Paramesh Insurance Company investigated the matter and noticed the prior ailment and taking treatment by him in Rajiv Gandhi Super Specialty Hospital, Raichur, as such it is clear violation of the terms and conditions of the insurance policy and thereby it rightly repudiated the claim of complainant and prayed for to dismiss the complaint among other grounds.<br /> <br /> 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:<br /> <br /> 1. Whether the complainant proves that, her husband K. Paramesh obtained Unit Link Young Star Plus Policy from opposite Insurance Company for assured sum of Rs. 4,00,000/- for his life at his life time and thereafter he developed kidney problems and died on 18-12-07, thereafter complainant being nominee filed claim petition along with necessary records before opposites but repudiated her claim vide Letter No. 10-12-08 and thereby opposite found guilty under deficiency in their services.?<br /> <br /> 2. Whether complainant is entitled for the reliefs as prayed in her complaint.?<br /> <br /> 3. What order?<br /> <br /> 5. Our findings on the above points are as under:-<br /> <br /> (1) In the affirmative <br /> <br /> (2) As discussed in the body of this judgement and as noted in the final order.<br /> <br /> (3) In-view of the findings on Point Nos. 1 & 2, we proceed <br /> to pass the final order for the following :<br /> <br /> REASONS<br /> <br /> POINT NO.1 :-<br /> <br /> 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 the officer legal of opposites was filed he was noted as RW-1. The affidavit-evidence of Dr. Rajashekhar, Physician working in RGSS Hospital, Raichur was filed, who is noted as RW-2 and documents Ex.R-1 to Ex.R-9 are marked.<br /> <br /> 7. In the present case, we have taken note of some of the following undisputed facts between the parties are:- <br /> <br /> 1. It is undisputed fact that, present complainant is the wife of deceased K. Paramesh who obtained Unit Link Young Star Plus Policy for assured sum of Rs. 4,00,000/- from opposite Insurance Company i.e, life time vide policy earring No. 11105911 dt. 08-06-07.<br /> <br /> 2. It is further undisputed fact that, the husband of the complainant died on 18-12-07 due to his Kidney problems.<br /> <br /> 3. It is further undisputed fact that, complainant being the nominee under the policy vide her claim petition along with necessary records before opposite No-2 and opposite No-2 repudiated the said claim vide letter dt. 10-12-08.<br /> <br /> 8. In the light of these undisputed facts, we have to appreciate the affidavit-evidences of parties and their respective documentary evidences for to see as to whether complainant is entitled for the policy amount of her husband as prayed in this complaint.<br /> <br /> 9. The main contention of the opposites for repudiation the claim of the complainant is that, deceased K. Paramesh was under medication for chronic Kidney decease, he was admitted to RGSS Hospital, Raichur on 21-05-07 and discharged on 22-05-07, prior it also he took treatment on number of times for his kidney ailments, but at the of signing the proposal form dt. 04-06-07 he not disclosed it. The medical records not only suggesting the suffering from chronic kidney decease but he also suffering with Hypertension and Abdomen Tuberculosis, such deceases not disclosed by him fraudulently which are material facts to the case, he gave false statement in his proposal form with regard to his health condition fully knowing well that he was suffering from those diseases and thereby the Insurance Company has justified in repudiating the claim of complainant.<br /> <br /> 10. Admittedly the plea of Insurance Company with regard to material suppression by the insured in the proposal form dt. 04-06-07 and prior to it has required to prove it. It is on the Insurance Company complainant need not prove such facts, we have relied on the decided case in LIC of India V/s. Smt. Channabasamma reported in 1996 III CPJ 8 (SC) of the Hon’ble Supreme Court, we have also referred and followed the principles of the ruling reported in 2005 CTJ 377 CP (NC) National Insurance Company V/s. Bipul Kunda of the Hon’ble National Commission in this regard.<br /> <br /> 11. In the light of these principles of the above said rulings, we have to appreciate the evidence of RW-2 the medical officer of RGSS Hospital, Raichur by name Sharanappa Jevargi, physician in whose supervision deceased was treated and issued certificate and also we have to appreciate the documentary evidences of opposites which are marked at Ex.R-1 to Ex.R-9.<br /> <br /> 12. The learned advocate for opposite relied on following rulings in support of his submission.<br /> (1) AIR 1962 SC 814 Mithoolal Nayak V/s. LIC of India of the Hon’ble Supreme Court.<br /> (2) 2008 ACJ 456 = AIR 2008 SC 424 of the PC Chacko and another V/s. Chairman of LIC of India and others.<br /> (3) AIR 1986 Kerala 201 P. Sarojam V/s. LIC of India.<br /> (4) Revision Petition No. 3197/08 Manju Bala V/s. Branch Manager LIC of India and others and (5) recent judgment in Civil Appeal No. 2776/02.<br /> <br /> 13. The learned advocate for complainant referred ruling reported in I 2009 CPJ 161 (NC) Vanita Ben Retilal Fulbaria V/s. LIC of India, we have also referred rulings of the Supreme Court reported in 1996 III CPJ 8 SC LIC of India Smt. Channabasamma, (2) 1997 10 SCC 538 Collector of Customs of Calcutta V/s. Tin Plate of India and another ruling reported in 2005 CTJ 377 CP (NC) National Insurance Company V/s. Bipul Kunda.<br /> <br /> 14. The above said rulings are with regard to fraudulent suppression of material facts by the insured while taking insurance policy from the insurance company, their lordships of the Hon’ble Supreme Court discussed section 45 of the Insurance Act and also discussed the meaning of fraudulent suppression of material facts by the policyholder and repudiation of the claim by the insurance company in such cases. Keeping in view of the principles of the rulings referred above. Now we have to see as to whether opposite insurance company has discharged its burden in proving the fact that, the insured K. Paramesh suppressed material facts regarding his previous health condition in his proposal form dt. 04-06-07 fraudulently knowing fully well that the statement given by him in the proposal form are false or other wise it was suppressed by him with an intention to get wrongful gain out of that statement.<br /> <br /> 15. Admittedly the proposal form signed by deceased K. Paramesh dt. 04-06-07 was scrutinized by opposite insurance company with regard to his health condition by the doctor appointed by the Insurance Company before accepting the proposal form, thereafter the proposal form was accepted after its satisfaction and policy was issued, in view of such circumstances, heavy burden on the opposite to prove that deceased K. Paramesh was under constant medication for chronic kidney decease which was known to him and thereafter with fraudulent intention he suppressed it in his proposal form with an intention to derive wrongful gain out of that declaration. Opposites have relied on some of the following documents to prove it. Ex.R-3 is the discharge summary issued by RGSS Hospital, Raichur. This discharge summary shows that, K. Paramesh was admitted on 21-05-07 and he was discharged on 22-05-07, the history of patient old case of CKD- CRF, C/O breathlessness with sweating for one day. The said treatment was earlier to the date of proposal form. Ex.R-4 is another discharge summary against medical advice. This shows his admission on 14-03-07 and discharged on 14-03-07. Ex.R-4 is not related to Ex.R-3 as the date of admission and the date of discharge are on different dates. Another discharge summary which shows the date of admission on 09-07-07 and date of discharge on 19-07-07. Ex.R-5 is not much importance as it is after proposal form, Ex.R-7 is a certificate issued by the employer of K. Paramesh for availment of medical leave. According to this certificate K. Paramesh availed leave from 18-01-06 to 24-01-06 thereafter from 26-02-06 to 03-04-06 and 23-06-07 to 18-12-07 and took medical reimbursement amount of Rs. 30,883/- from his employer, if we considered all these dates as noted in Ex.R-7 the said dates are not corroborating with certificate Ex.R-6, Ex.R-9 as Ex.R-9 is having details of the treatment taken by K. Paramesh. According to this Ex.R-9 first visit was on 04-03-06 and discharged on 10-03-06, the second time admitted on 14-03-07 and discharged on the same date. Again he was brought to the hospital on 25-11-06 thereafter on 21-05-07 and on 02-07-07.<br /> <br /> 16. All these documents not serving the purpose of opposites to prove the fraudulent suppression of material facts by K. Paramesh while giving his declaration in his proposal form dt. 04-06-07 as per the principles and observations made by their lordships in the above said rulings, we have not noticed any kind of fraudulent suppression of that decease of K. Paramesh while filing his proposal form on 04-06-07. In the said proposal form he mentioned the name of his family doctor with regard to his consultation. Here opposites have not taken any kind of statements or not collected any documents from him regarding his previous illness, some of these documents are out coming from the custody of opposites. Ex.R-3 to Ex.R-5 are the discharge summary reports issued by RGSS Hospital, Raichur. Ex.R-7 & Ex.R-9 are coming from the formats of opposites. RW-2 doctor is not stated in his affidavit-evidence with regard to fraudulent suppression of material facts by the decease with regard to his previous decease. The opposites are repudiated the claim of complainant only on the basis of Ex.R-3 to Ex.R-7 and Ex.R-9. Mere taking treatment on some dates by K. Paramesh is not sufficient to say that, there was fraudulent suppression of material facts by the insured K. Paremesh with an intention to derive wrongful gain out of that proposal form. The relevant records Ex.R-3 to Ex.R-7 & Ex.R-9 might be documents regarding treatment taken by him may fulfill the first part of requirements in proving fraudulent material suppression, the second part of requirements of it is that, K. Paramesh fraudulently made such declaration by knowing fully well that, he was suffering from such deceases with intent to get wrongful gain out of that declaration in the proposal form. The second part is not established. No other circumstances established to hold that, fraudulent material suppression of fact was committed by deceased as such we are of the view that, repudiation of claim of complainant on that ground is not proved. Evidences of RW-1 and RW-2 not assisting us to appreciate the fraudulent material suppression of the fact by deceased K. Paramesh and more over RW-2 not filed answers to the interrogatories in spite of sufficient time granted to him. <br /> <br /> <br /> 17. The contention of the learned advocate for complainant is that, vakalat, written version and affidavit-evidence of RW-1 cannot be considered in this case as concerned officer is not authorized agent either on behalf of opposite No-1 or opposite No-2.<br /> <br /> 18. The learned advocate for opposites submitted that, RW-1 is an authorized officer to represent the insurance company letter of authority given by the company to him is produced and marked at Ex.R-8, complainant not objected at the time of marking it. Hence the said contention is not tenable under law and prayed for to reject it.<br /> <br /> 19. In pursuance of the submissions made on both sides, we have perused Ex.R-8 it is a letter of authority given by the opposite insurance company to RW-1 through its secretary to represent the case on behalf of company. In the said circumstances, we are of the view that, there is no merit in the contention of the complainant in this regard and we are of the view that, the facts and principles discussed by their lordships of the Hon’ble National Commission in a case Krupanidhi College of Pharmacy and another V/s. Niloofar Shokraiah Zanjani reported in II 2009 CPJ 207 (NC) are different to the facts of the present case on hand. Hence with great respect to their lordships, we have not applied the said principles to this case.<br /> <br /> 20. In view of the facts and circumstances discussed above, we came to a conclusion that, repudiation of the claim of the complainant on the said ground without proving legal requirements of material suppression as alleged against the complainant is nothing but deficiency in service on the part of the opposites, accordingly we answered Point No-1 in affirmative.<br /> <br /> 21. As regards to the claim of complainant is concerned. It is a fact that a sum assured under the policy is of Rs. 4,00,000/-. Policyholder K.Paramesh died on 18-12-07, present complainant is the wife of deceased K.Paramesh and nominee under the said policy, as such the complainant is entitled to get death benefit of Rs. 4,00,000/- from opposites 1 & 2 under the said policy. Opposite Nos. 1 & 2 are liable to pay the said amount jointly and severally to the complainant.<br /> <br /> 22. We have noticed the deficiency in service on the part of opposites in settling the claim of complainant. Hence complainant is entitled to recover a lumpsum amount of Rs. 3,000/- from opposite Nos. 1 & 2 jointly and severally under the head of deficiency in service.<br /> <br /> 23. As regards to cost of this litigation is concerned, the complainant is entitled to recover lumpsum amount of Rs. 3,000/- from opposite Nos. 1 & 2 jointly and severally.<br /> <br /> 24. 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 interest at the rate of 9% p.a. on the total sum of Rs. 4,06,000/- from opposite Nos. 1 & 2 from the date of this complaint till realization of the full amount which is just and proper. Accordingly the said rate of interest is granted and answered Point No- 2 accordingly.<br /> <br /> POINT NO.3:-<br /> <br /> 25. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:<br /> <br /> ORDER<br /> <br /> The complaint filed by the complainant is partly allowed with cost.<br /> <br /> The complainant is entitled to recover a total amount of Rs. 4,06,000/- from opposite Nos. 1 & 2 jointly and severally.<br /> <br /> The complainant is entitled to recover interest at the rate of 9% p.a. on the above total sum of Rs. 4,06,000/- from the date of the complaint till realization of the full amount.<br /> <br /> Opposite No-1& 2 is granted one month time to comply the above order from the date of this judgment and for to make the payment.<br /> <br /> Intimate the parties accordingly. <br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 26-05-10)<br /> <br /> Sd/-<br /> Sri. Pampapathi,<br /> President,<br /> District Forum-Raichur.<br /> <br /> Sd/-<br /> Sri. Gururaj, Member,<br /> District Forum-Raichur.<br /> <br /> Sd/- <br /> Smt.Pratibha Rani Hiremath, <br /> Member. <br /> District Forum-Raichur.<br />