BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

COMPLAINT NO.133/2016

DATE OF FILING:16/08/2016
 

ORDER DATED: 17^th day of October, 2017

   P r e  s e n t: 

01) Smt. Sharada. K.                                                  President…

     B.A.LL.B. (Spl) 

02) Smt. Sumangala.C.Hadli.                            Lady Member…

                            B.A (Music)

                V/s.

JUDGEMENT DELIVERED BY SMT.SHARADA.K.PRESIDENT

The complainant has filed this Complaint u/s 12 of Consumer Protection Act, 1986 against the Opposite Parties (herein after referred in short as OPs) for seeking direction to OPs to pay Rs.9,00,000/- as they have already paid Rs.91,457.16 ps. with accrued interest thereupon till realization, Rs.1,00,000/- towards damages, Rs.5,000/- towards cost and other reliefs deemed fit under the circumstances of the case.

2.    The brief fact of the case are as follows:

The complainant is mother of one Sri.Abdulbasheer R/o Ameengad, Tq & Dist: Bagalkot and said Abdulbasheer was expired on 22.08.2015. During his life time, he had opted for one Insurance Policy from Ops and the said policy bearing No.19393897. The complainant is the nominee of the said policy. The premium amount of Rs.1,01,000/-. After receiving the policy bond, the Ops have sent the booklet about the Terms and Conditions of the policy, but orally instructed the policy holder that the Insurer after paying 10 years premium he will get lump sum of Rs.20,00,000/- only. After expire of policy holder and this was informed to the Ops and also the complainant had sent a request letter to send the death claim forms so as to enable her to fill the forms and send to the Ops for getting the death benefits of the above policy. That the OP after receiving the intimation letter of death of said Abdulbasheer. The Ops had sent an amount of Rs.91,457=16 on 02.01.2016 to the nominee of the said policy.

3.      As per terms and conditions of the policy in clause No.3.2 it is vividly written as on the death of “the life assured during the term of the policy the death benefit will be payable to the nominee, if on death of the life assured provided policies are not in discontinued policy fund. In the even of the death, the nominee will get sum assured death benefit whichever is highest”. So, as per the terms and conditions of the Policy, the nominee is entitled to get Rs.10,00,000/-. Since the complainant is an illiterate and assuming that she had got some Govt. amount in the form cheque, which she has received from the Ops had horridly presented the cheque in the bank an amount of Rs.91,457-16. But, by accepting this meager amount, the complainant did not relinquish her claim as she is legally entitled to. After that complainant visited OP No.1 Office several times and requested them to release the remaining amount of death benefit of the above said policy, but in term they have sent a repudiation letter of the said policy and they washed their hands by paying the amount to the complainant. Thereafter, complainant sent a legal notice through counsel dated: 17.02.2016. But the OP has replied to the said legal notice dated: 25.02.2016 in that he was denied all the contents of the legal notice and written that they have already replied to the claim request letter dated: 28.12.2015 that the said policy is repudiated. Hence, complainant suffered more and it is prayed the Hon’ble Forum be direct the OPs to pay Rs.9,00,000/- as they have already paid Rs.91,457.16 ps. with accrued interest thereupon till realization, Rs.1,00,000/- towards damages, Rs.5,000/- towards cost. Hence, complainant has filed this Complaint.  

4.      After receipt of notice, OPs appeared through their counsel and filed Written Versions.

WRITTEN VERSION OF OPs:-

  This Complaint being frivolous and vexatious is liable to be dismissed u/s 26 of C.P. Act, 1986 as the complainant has failed to make out a case of “Deficiency in service” as alleged or otherwise within the meaning of the C.P. Act, 1986 and hence the present Complaint is not maintainable. Ops submitted that the contract of insurance is based on utmost good faith. It is stated that the person seeking insurance knows all the facts related to complainant, which materially affect the risk for which insurance cover is required. The Life Assured is under an obligation to make a full and honest disclosure of all material facts to the insurer at the time of Proposal. The deceased Life Assured seeking insurance is expected to maintain a higher and rigorous standard of good faith. The Ops cannot have any information or knowledge of its own about the Life Assured of the policy. It is stated that the Company had received a request for death claim dated: 08.10.2015 informing that the Life Assured had passed away on 22.08.2015 (within one month  seven days of police issuance) due to Accute Gastroentritis whereas after careful evaluation of the records obtained by the independent investigation agency, it was revealed that the Life Assured had suppressed the material fact that he was suffering from Cancer Oesophagus and was on Chemotherapy for the same i.e. prior to the date of application for the subject policy. This OP has filed many decisions in support of the above contentions. That reference is most respectfully made here to Regulation 2 (1) (d) of the IRDA (Protection of Policyholder’s Interests) Regulations, 2002 which provides that “Proposal Form” means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake the risk, and in the event of acceptance of risk, to determine the rates, terms and conditions of a cover to be granted. Further, as per the provisions of Regulation 11 (1) and Regulations 11 (3) of the IRDA (Protection of Policyholders Interests) Regulations, 2002, the Life Assured was under a bounden obligation, to disclose all material information to the OP-Company at the time of proposal.

5.      OP also submitted that this Forum is not find-out whether there is a nexus between the accidental death and disease suppressed by the insured that has nothing to do with the grant of compensation. It is categorically established that there has been no deficiency in service by the Ops, whereas the prayer mentioned in the Complaint is irrelevant, without any source or grounds of providing eligibility. The deceased Life Assured has concealed and suppressed the material and relevant facts of the case. The complainant has with malafide and dishonest intention not only concealed the material facts from the Forum, but also twisted and distorted the same to suit his own convenience and to mislead this Forum. Ops also submitted that the complainant has acted in bad faith with respect to the subject of this Complaint and has approached the Forum with unclean hands. It is the duty of the Life Assured to disclose true and correct information about his health in the proposal form. The complainant is not entitled for any sum assured, interest, costs, compensation or any other benefits under the Policy and claim is rightly repudiated by the OP on the basis of settled proposition of law and the decision of the Company to repudiate the claim of the complainant in supported by fact, evidence as well as by law. In the light of our above reasons, this Complaint is dismissed with costs in the interest of justice and equity.   

6.      The complainant tendered affidavit evidence and filed documents in support of his case. OPs filed affidavit evidence and filed documents in support of his case. Both parties have filed Written Arguments. After considering the material placed on record, the following points that arise for our consideration are:-

1. Whether the Ops have rendered deficiency in service to the complainant?

2. Whether the complainant is entitled for the relief prayed for in the complaint?

3. What order?

          After considering the arguments advanced by the learned counsel for both parties and the material evidence placed on record, our findings for the above points are as follows;

1. Affirmative,
2. Partly in the affirmative.
3. As per final order;

-: R E A S O N S :-

7.  POINT NO.1:- On perusing the pleading of the parties along with the documents placed before us, it discloses that, it is an undisputed fact that deceased Abdulbasheer had taken one insurance policy during his time, he had opted one insurance policy from above Ops in Ameengad Branch bearing Policy No.19393897 name of Plan IPRU Wealth Builder II, Sum Assured of Rs.1,01,000/- and its premium amount of Rs.1,01,000/- complainant is mother one Sri.Abdulbasheer, nominee of the said policy Abdulbasheer expired on 22.08.2015. The complainant was informed to OP and also complainant had sent a request letter to send the death claim. The Ops have sent an amount of Rs.91,457=16 on 02.01.2016 to the nominee of the said policy and Ops sent the reply notice that sum assured amount of Rs.10,00,000/- was repudiated on the basis of medical prescriptions.

8.      That the Ops stated deceased Abdulbasheer suffering from cancer oesophagus and was on chemotheraphy for the same i.e. prior to date of application for the subject policy and there was willful and deliberate suppression of such material fact by the Life Assured at the time of proposing for the subject policy. Copies of the medical records are already annexed with reply. The deceased Life Assured did not disclose these facts in his proposal on 16.07.2015 with a risk commencement and OP submit that the life assured deliberately visited the company by concealing material information and furnishing false information while filling up the proposal form with respect to details of his prior medical conditions. That the Ops-Counsel further stated that violated the policy conditions. Therefore, the claim was repudiated on grounds of suppression of material facts based on treatment details and the medical documents.

9.      However, we have perused the entire records of both the parties and also heard the counsels for the parties in length, in view of above documents this Forum observed the following points:-

This Forum observed that hospitalization of deceased on 21.07.2015 to 24.07.2015 summary sheet observed that no evidence was led before the Forum below the Ops had produced the zerox copy of summary sheet and consultation record of S.Nijalingappa Medical College and Hanagal, Sri. Kumareshwar Hospital, Navanagar, Bagalkot which was not proved. Nor was the evidence for the treatment doctor led since it was strictly proved as alleged by him going through the just perused of the documents also has not come to the conclusion specific material on record of showing that the deceased was suffering from Ca. oesophagus and Acute Gastroenteritis and alleged in written version the substantial there is no other documents produced, document of zerox copies are not sufficient come to conclusion and duty of Ops are not only to prove the deceased was suffering from cancer that deceased was personally knowing that he was suffering from the cancer and he was failed to mention in proposal form about the element held by him.

10.    The mentioned said medical records oesophagus and was on treatment since 8 months, but no other documents have been produced in accordance with the previous treatment taken-up by the deceased.

That the OP-Counsel proved the citation of:-

1. Life Insurance Corporation of India V/s Smt. Asha Goel & Another (2001) ACJ 806,
2. United India Insurance Company Ltd. V/s M.K.J. Corporation (1996 (6) SCC 428),
3. P.C. Chacko and Anr. V/s Chairman, Life Insurance Corporation of India and Ors. AIR 2008 SC 424,
4. Satwant Kaur Sandhu V/s New India Assurance Company Ltd. (2009) 8 SCC 316,
5. TATA AIG Lie Insurance Company Ltd., V/s Orissa State Cooperative Bank and another (2012) CPJ 310 (NC),
6. Dineshbhai Chandrana V/s LIC and Anr. First Appeal No.242/2006, Decided on 27.07.2016,

These citations are not applicable in this case, observations is different from one case to another.

11.    That the deceased was taking policy on 16.07.2015at the time of submitting the Proposal Form, he was hale and healthy person and he was not suffering from any disease, but deceased admitted on 21.08.2015 to 24.08.2015 in S.Nijalingappa Medical College and Hanagal, Sri. Kumareshwar Hospital, Navanagar, Bagalkot. Except this copy of zerox documents, Ops did not produce any other record of treatment and OP did not produce any other evidence of treated Doctor.

12.    As held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi III (2014) CPJ 221 (NC) Bajaj Allianz Life Insurance Company Ltd., & others V/s Rajkumar the Lordship observed that Authorized doctor of Insurance Company examined insured, Assured fitness and after complete satisfaction policy was issued, it cannot be presumed that insured/deceased was aware of Multiple Myeloma/blood cancer and he concealed previous illness repudiation not justified.

2009 (3) CPR 53 (L.I.C. of India and Others V/s Kailash Chandra Kar) That Hon’ble court observed that

“Consumer Protection Act, is a beneficial legislation and it cannot allow Insurance Company to escape liability on technical grounds to deprive the consumer of benefits to which he was entitled to.”

That the complainant counsel produced the citations:-

1.   LIC of India V/s Kamala Devi Appeal No.2793/2006.
2. LIC of India V/s Krishna Devi and others, Rev. Petition No.1960/2011. Decided on 18.11.2016-2017 CJ.
3. 2014 C.J. 73 (NC) New India Assurance Company Ltd. V/s Kuldeep Kumar Nayyar.
4. 2015 CJ 327 (NC) Ajmeri Khatun V/s National Insurance Company Ltd. and others.
5. 2014 CJ 888 (NC) Sanjayakumar Gupta V/s KebalKrishna Balma & others.
6. 2014 CJ 458 (NC) ICICI Lombard General Insurance Company V/s Gafur Alamgeer Sayyad.
7. 2016 CJ 976 (NC) LIC of India V/s Vijaya Kunwar.
8. 2015 CJ 554 (NC) SBI Life Insurance Company V/s Kamaljeet Kaur
9. 2014 CJ 550 Oriental Insurance Company V/s Baby Simran Kaur

10)  LIC of IndiaV/s Pankaj Pandey 2015 CJ 334 (NC) decided on 23.09.2015

11)  Ravikumar V/s LIC of India Judgment published in Kannada Prabha dated: 06.07.2017.

Therefore, this is none other than deficiency in service rendered by the OP No.1 and 2. We answer to Point No.1 in affirmative.

13.  POINT NO.2:  Once the deficiency in service is proved, the next point is how much compensation complainant is entitled for? That the OP No1 and 2 jointly and severally have to pay remaining Assured of the said Insurance Policy is Rs.9,00,000/- only because of OP has already paid Rs.91,457.16 paise with interest at the rate of 9% p.a. from the date of death of the policy holder i.e. 22.08.2015 to till realization, towards mental agony Rs.5,000/- and cost of Complaint Rs.2,000/-. Hence, we answer Point No.2 in partly affirmative.   

14.   POINT NO.3: In view of affirmative findings to Point No.1, and partly affirmative findings to Point No.2, we proceed to pass the following:

:: ORDER ::

1. The complaint is allowed in part.
2. The OP No.1 and 2 are jointly and severally have to pay a sum of Rs.9,00,000/- (Rupees nine lakh) towards the remaining balance of Sum Assured of the said policy with interest at 9% per annum from the date of death of the Policy holder, i.e. 22.08.2015 to till realization.
3.  Further, OP No.1 and 2 are jointly and severally have to pay Rs.5,000/- (Rupees five thousand) towards mental agony and Rs.2,000/- (Rupees two thousand) towards cost of litigation.
4. OP No.1 and 2 are jointly and severally comply the order of this Forum within a period of sixty days from the date of receipt of the Order, failing which the above said amount of Rs.9,00,000/- shall carry interest at the rate of 12% per annum from the date of order, to till realization.

    6) Send a copy of this Order to both parties free of cost.  

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 17^th day of October, 2017)