BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BAGALKOT.

C.C.No.58/2018

Date of filing: 04/05/2018

Date of disposal: 26/03/2019

P R E S E N T :-

- V/S -

JUDGEMENT

By Smt. Sharada. K. President.

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Party (in short the “OP”) directed to make payment of sum assured amount of Rs.15,50,000/- with accrued interest there upon with bonus till realization and compensation of Rs.50,000/- towards mental agony, damages and Rs.25,000/- towards the court cost of this litigation and any other reliefs.

2.      The facts of the case in brief are that;

          It is case of the complainant that, the complainant is working in the Govt. office and her husband late Basavaraj A. Allagi was also working as an Assistant Director, Sports Department under Govt. Organization and further the husband of the complainant while he was service had opted number of Life Insurance Policies are as under;

1. 636003686 of Rs.10,00,000/-
2. 636453276 of Rs.5,00,000/-
3. 635217841 of Rs.50,000/-

with OP Corporation total for a sum of Rs.15,50,000/- covering the risk of his life for the welfare and benefit of his family members and further on dtd: 17.11.2010, the husband of the complainant i.e. Basavaraj Allagi has expired and for all the above policies the present complainant is made the nominee as she is legally wedded wife of late Basavaraj Allagi.

 After the death of her husband, the complainant had intimated to the OP Corporation and submitted the death claim forms duly filled in and signed to the OP’s office on dtd: 17.12.2010, but OP after receiving the death claim forms of the complainant, the OP had repudiated on the ground that, the deceased life assured was suffering from “Papillary Carcinoma Thyroid” and he had undergone operation in 2005 and further the deceased life assured has suppressed the facts at the time of taking the above said policies and also, while opting the said policies, the deceased husband of the complainant had answered as per the questionery box and further the proposal forms have been filled by the authorized agents of OP’s Corporation and while doing so, the Medical Officer of OP will thoroughly examine the proposer, after declaring him that, he is medically fit, then only the proposal forms have been accepted by the OP’s Corporation and after receiving the premium amount, the policies will be issued to the policy holder.  

It is further contended that, the contention of the OP in repudiating the claim as the policy holder had undergone the operation in the year 2005 is not correct and it is only an assumption on the Doctors of the KLE which is not in records and further the cause of the death of the policy holder is given as Acute Respiratory Failure Secondary to Bilateral Pneumonia Secondary to Papillary Carcinoma of Thyroid this has happened only opting the said policy long back and the repudiation of said policies by the OP is not by any proof and further in this case, the OP Corporation is acting upon their own whims and fancies and coolly repudiating the claim that, the premiums of the polices are being regularly paid by the policy holder, but in the event of death of the policy holder the ultimate sufferer is the nominee of the policy holder.

It is further contended that, the complainant was being assured by the OP that, still her claim will be looked into and the possible releasing of death claim will be intimated to the complainant. Believing in the words, the complainant was moving to both offices till today, but the claim amount has been not released by the OP till today, finally the cause of action arose to file this complaint on 16.05.2016 from the date of repudiation by the OP vide letter dtd: 02.11.2017.
But, the OP had repudiated the claim of the complainant on the false and untenable reasons and further the OP has committed deficiency of service as per the provisions of the C.P. Act 1986.  Hence, the complainant has constrained to file this complaint. 

3.      The Complainant has also filed I.A. u/s 24 (A) of C.P. Act praying to condone the delay in filing this Complaint, for the reasons stated in the accompanying affidavit that, after the death of her husband i.e. Basavaraj Allagi, the complainant submitted the death claim forms duly filled in and signed to the OP’s office on 17.11.2010 within time. But, OP office replied me to the said claim in the year 2017 and stating that, your claim is rejected. Hence, the complainant has filing this case today and there is no delay caused in filing this case, if that is so, there is no delay at all. Even otherwise, the delay of filing this complaint, because the OP rejected complainant application in the year 2017 was unintentional and the same deserves to be condoned.

 4.     After issue of notice to the Opponent. The OP has appeared through his Counsel and resisted the claim of the complainant and denied all allegations made out in the complaint and it is true that, the deceased life assured Basavaraj Allagi had obtained 3 policies are as under;

and further the claim under the last policy No.635217841 is admitted for Bid Value as per policy conditions after obtaining valid discharge from nominee for Rs.33,304/- and in other two policies the claim has been repudiated as the deceased life assured has made deliberate Mis-statements and withheld material information from the OP corporation at the time of effecting the assurance and further the life assured Basavaraj died on 17.11.2010 within 3 years after obtaining and commencement of these 2 policies and the claim is classified as an ‘Early Claim’. Hence, as per the prevailing practice of the Corporation, the claim investigation was conducted and in the claim investigation it is revealed that, the deceased life assured Basavaraj had undergone operation for Papillary C.A. of Thyroid in the year of 2005 as per claim forms B and B1 submitted by the complainant and the summary sheet of KLE for the period from 12.11.2010 to 17.11.2010, which goes beyond date of commencement and further the life assured while filing the proposal Forms he has given false information regarding his health as  follows; 

          It is further case of the Op that, the deceased life assured has suppressed material information which was relevant to contract of insurance and further as per Section 45 of Insurance Act, Insurance contract is a contract of utmost Good faith based on the information submitted by the proposer in the proposal form and also the information given to the medical examiner about his health while conducting the medical examination in case of medical policies at the time of taking the proposal, the underwriting of the proposal is done by the insurer. Any mis statement made in the proposal by the proposer fraudulently while taking the insurance, the insurer shall make the contract void or repudiate the claim, if it comes to the knowledge of the insurer that, the proposer has made mis statements about his health in the proposal and further it is evident that, even then, the DLA had knowledge about his operation of thyroid he had made deliberate mis-statement in his proposal form and withheld material information from the OP Corporation. Therefore, there is justification on the part of the OP to repudiate the claim of the complainant and there is no any deficiency of service on the part of the OP.  Hence, the OP has prayed for dismissed the complaint with compensatory costs. 

5.      In support of the claim in the complaint, the complainant has filed his affidavit and produced 8 documents, which are as under;

6.      On the other hand OP.No.2 has filed his affidavit on behalf of this case and produced 12 documents which are as under;

7.      Now, the following points that would arise for our consideration in deciding the case are;

1. Whether Complainant made-out a sufficient cause for condonation of delay?

2. Whether the complainant has prove that there is deficiency in service on the part of the OP?

3. Whether the complainant is entitled to the relief as is sought for?

4. What order?

8.      Our finding on the above points are as follows;

1. Point No.1 & 2 Affirmative.
2. Point No.3 Partly in the Affirmative.

          2.      Point No.4 As per final Order.

R E A S O N S

9.      POINT NO.1:  The case of the complainant is that, the deceased husband of the complainant Basavaraj Allagi had opted 03 Life Insurance Policies in the OP’s Corporation and further he was died on 17.11.2010 and all the LIC policies, the complainant become the nominee. Of course, the Complainant not specifically mentioned the date of approaching the Opponent demanding to pay the LIC death claim amount of her deceased husband. Nevertheless, it is not in dispute that, the Complainant had submitted the death claim forms duly filled in and signed to the OP’s office on 17.11.2010 and calling upon him to make payment of LIC policies amount of her deceased husband. It is also admitted that, the OP has repudiated the death claim amount of her deceased husband i.e. Basavaraj Allagi on dtd: 16.05.2016.   

Now the Complaint has filed I.A. U/s 24-A (2) of C.P. Act 1986 for condonation of delay before this Forum on 13.04.2018 and further complainant contended that, after the death of her husband i.e. Basavaraj Allagi, the complainant submitted the death claim forms to the OP on dtd: 17.11.2010 within time. But, OP has rejected complainant application in the year 2017. Hence, the complainant has filing this case today and there is no delay caused in filing this case, if that is so, there was unintentional and the same deserves to be condoned. No dought, it is true that, the deceased husband of the complainant has opted the 03 LIC policies to the OP Corporation and several times requested the OP to make good and paid the LIC assured amount and even the complainant has issued the death claim forms to the OP in respect of same but, the OP did not heed the request and not paid the LIC policies assured amount to the complainant.

 Looking, to the facts and circumstances to the case, the complainant has relied a following decisions are as under;

1. 2017 (2) KCCR 1457  Para-B: Substantial justice V/s. Technicalities. Later should not be fitted against the farmer in case of immovable property.
2. 2010 (2) KCCR 1114 Limitation: Substantial provision of law does not prescribe any limitation on the power of Court.
3. 1987 AIR Supreme Court 1353 Principles of condoning the delay.
4. 2014 (4) SCC 163. Limitation: Condonation of delay sufficient cause the grounds for condonation of delay.
5. 2018 CJ 164 NC Limitation.

The above said relied decisions are aptly applicable to this complaint. Hence, with above observation, we are of the consider view that, delay has been condoned for adjudicate the matter though the complainant has legitimate right over the LIC policies assured amount to the OP Corporation and further the delay has been calculated from the date of her deceased husband which is incorrect. Actually, the limitation starts to run from the date of denial/repudiation or from the date of demand, if this principle is applied absolutely there is no delay and it is within limitation in filing this Complaint. Therefore, this Complaint has filed on 04.05.2018 in pursuance of repudiation of the OP Corporation, we are of the considered view that, the Complaint is filed within limitation. Hence, we answer the Point No.1 in the affirmative.

10.    POINT NO.2:  In order to avoid repetition of the facts and reasons and also same line, we take up the complaint for passing order as fallows;

            The learned Counsel for the complainant contended that, unfortunately, Basavaraj Allagi died on 17.11.2010, the deceased Basavaraj was working as an Assistant Director Sports Department under Govt. Organizations and further the deceased life assured was taken Life Insurance policies bearing numbers 1) 636003686 for Rs.10,00,000/- on dtd: 04.10.2010,  2) 636453276 for Rs.5,00,000/- on dtd:23.12.2009 and 3) 635217841 for Rs.50,000/- on dtd: 31.03.2008 and complainant as a nominee for these policies that, the complainant is the wife and legal heir of the deceased Basavaraj A. Allagi. Thereafter, the death of said Basavaraj, the complainant has submitted the death claim forms duly filled in and signed to the OP’s office on 17.12.2010, but OP has repudiated the claim of the complainant on the basis of medical prescription and stating that, the deceased life assured was suffering from Papillary Carcinoma Thyroid and he had undergone operation in the year 2005 and further the deceased life assured has suppressed the material facts towards taking in to the above said policies to the OP Corporation and further stated that, as the time of seeking Insurance policies, the life assured answered in Negative to the questions sought with regard to health history and fast ailments.

          However, we have gone through the entire records of both the parties and also heard the Counsels for the both parties in view of above said documents; this Forum observed the following points are as under;

          The Hospitalization of deceased on 12.11.2010 summary sheet observed that, no evidence was held before the Fora below that, the OP had produced the Xerox copy of summary sheet and consultation record of KLE’s Dr.Prabhakar Kore Hospital and Medical Research Centre, Belgaum, which was not proved, nor was evidence for the treatment doctors had signee, it was strictly proved as alleged by him. So, going through the just perusal of the documents also has not come to the conclusion that, specific material on record of now showing that, the deceased was suffering from Papillary CA of Thyroid as alleged in written version. In order to prove the said contention, the OP has not substantiated his case and there is no other document produced by the OP, the document of Xerox copies are not sufficient to prove his case. Hence, we come to conclusion that, the duty of OP is  not only to prove the deceased was knowing that he was suffering from Papillary CA Thyroid that, the deceased was personally knowing that, he was suffering from the said Papillary CA Thyroid and he was failed to mention in proposal from the ailment held by him.   

          The mentioned above said medical records and was no treatment since long period, but no other documents have been produced in accordance with the previous treatment taken up by the deceased husband of the complainant.

In this case, the burden is upon the OP to prove that, the insured had suppressed the material facts in the proposal form. For that proposition, we would like to refer a reported decision of the Hon’ble Supreme Court of India in III (2012) CPJ 5 (SC) LIC of India V/s. Asha Goel and another’s) had held in para 12 that, burden of proof is on the insurer to establish that, insured has suppressed the material fact prudently it was known her at the time of survival. It is further held that, an insurer is able to prove the same there is no question of repudiating of the claim such grounds and  another decision reported in IV (2011) CPJ 6 (SC) P. Venkal Naidu V/s. LIC of India, the Hon’ble Supreme Court has held that, insurance company has to be produced tangible to cogent evidence to prove that, deceased with held information about illness hospitalization and treatment of insured. For that proposition, the counsel of the complainant has produced some citations are as under;

1. (2015) CJ 327 (NC) Ajmeri Khatun V/s. National Insurance Company Ltd. & others.
2. (2017) CJ 531 (NC) Aviva Life Insurance Co. Ltd., and others V/s. Rekhaben Ramjibhai Parmar.
3. (2017) CJ 630 (NC) Life Insurance Corporation of India V/s. Sarojini and another.
4. (2016) CJ 976 (NC) Life Insurance Corporation of India V/s. Vijay Kunwar.
5. (2014) CJ 550 (NC) Oriental Insurance Co. Ltd., V/s. Baby Simran Kaur.
6. (2014) CJ 554 (NC) Gurdeep Singh Khurana and others V/s. K.S.T. Infrastructure Ltd.,
7. Downloaded NCDRC copy dtd: 12.10.2018 regarding Insurance claim cannot be denied on the ground of common lifestyle diseases.
8. Kannada Prabha Grahak Coloumn.
9. (2018) CJ 990 (NC) Life Insurance Corporation of India V/s. Saraswathi Kuncha.

The above said relied decisions are aptly applicable to the instant case. Therefore, this is none other than deficiency in service rendered by the OP. Hence, we answer to Point No.2 in the Affirmative.

11.   POINT NO.3:  Once the deficiency in service is proved, the next point is how much compensation complainant is entitled for?  Looking to the fact and circumstance of the case, we are of the view that, the OP has to pay assured amount of Rs.10,00,000/- towards policy No.636003686 and Rs.5,00,000/- towards policy No.636453276 to the complainant. Hence, due to non-payment of respective LIC assured amount by the OP is caused mental agony and harassment to the complainant. In our considered view that, it is just and proper to award a compensation of Rs.2,000/- for inconvenience and mental agony and we also award litigation expenses of Rs.1,000/- to the complainant. Accordingly, we answer to Point No.3 in partly Affirmative.

12.   POINT NO.4. In view of our findings on the above points, in the result, we proceed to pass the following;

O R D E R

The complaint is here by partly allowed with costs.

          The OP is hereby directed to pay the LIC assured amount of Rs.10,00,000/- towards policy No.636003686 and Rs.5,00,000/- towards policy No.636453276 to the complainant till realization.

The OP is hereby directed to pay compensation of Rs.2,000/- towards mental agony and Rs.1,000/- towards cost of the litigation to the complainant within 10 weeks from the date of this order, failing to which, the complainant is entitled to recover interest @ 6 % p.a. on total assured amount of LIC policies i.e. Rs.15,00,000/- from the date of this order till realization.

Send the copies of this order to the parties free of cost.

          (Order dictated, corrected and then pronounced in the open Forum on: 26^th day of March 2019).