BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri.T. Sundara Ramaiah , B.Com B.L., President
And
Sri. M. Krishna Reddy , M.Sc., M.Phil., Male Member
Tuesday the 10th day of August, 2010
C.C. No.170/08
Between:
Md. Musthaq Ahmed, S/o Md. Ghouse,
46-142-22, Sri Venkataramana colony, Kurnool-518 003. …Complainant
-Vs-
1. The Branch Manager, Life Insurance Corporation of India Limited,
H.No.40/36/3 River view colony, Kurnool District.
2. The Divisional Manager, Life Insurance Corporation of India Limited,
P.B.No.10, College Road, H.No.1/55, CUDDAPAH-516 004.
3. Corporation bank, Rep by its Branch Manager,
H.No.40/386,Park road, Kurnool-518 001. .. OPPOSTIE PARTIES
This complaint is coming on this day for orders in the presence of Sri.P.Siva Sudharshan, Advocate, for complainant, and Sri.L.Hari Hara Natha Reddy, Advocate for OP.No.1 and 2, and Sri.T.Siva Kumar, Advocate for OP.No.3 and upon perusing the material papers on record the Forum made the following.
ORDER
(As per Sri. T.Sundara Ramaiah, President)
C.C. No.170/08
1. This complaint is filed under section 11 & 12 of C. P. Act, 1986 praying to direct the Ops
(a) to pay the policy amount(policy No. 652280343) of Rs.1,00,000/- to the complainant or OP.No.3 with interest at 24% p.a from the date of death of the deceased i.e, 24-09-2006 till the date of realization along with benefits.
(b) to grant a sum of Rs.20,000/- towards mental agony .
( c) to grant a sum of Rs.2,000/- towards cost of the complaint .
(d) and grant any other relief as the Hon’ble Forum may deems fit and proper under the circumstances of the case.
- The case of the complainant in brief is as follows:- The complainant’s wife Late. S. Rafiya bee insured her life under policy No. 652280343 for Rs.1,00,000/- in the year 1999. The said policy was issued by Ops 1 and 2. The policy holder paid the premiums regularly. The policy holder died on 24-09-2006 due to ill health and her death is natural one. The complainant is the nominee under the policy. After the death of Rafiya bee the complainant submitted claim form to Ops 1 and 2 through OP.No.3. The Ops not paid the amount dues under the policy. The complainant also got issued legal notice to the Ops. The Ops received the said notice but no reply was given .Hence the complaint.
3. OP No.2 filed written version and the same is adopted by OP.No.1. It is stated in the written version of OP.No.2 that the complaint is not maintainable. The assured committed default in payment of the half yearly premiums from 28-03-2005. Later the assured submitted the personal statement regarding her health by paying premium due. The policy was revived on 20-05-2006 on the strength of a personal statement regarding health of the deceased on 20-05-2006. Revival is a fresh contract. Basing on her declaration good health the policy was revived on 20-05-2006. At the time of the revival she informed that she never underwent any operation or suffered from any illness or she was advised to go any treatment or taken X-ray etc., As the assured died 4 months 4 days after the date of revival of the policy the claim was treated as an early claim and investigation was conducted. During the course of investigation it was revealed that the assured was not in good health prior to the date of revival of the policy and she was suffering from Breast Cancer and the cause of death is due to CARCINOMA in breast. The assured took treatment under the care of Dr. V.Ram Mohan Reddy at Indo American Cancer Institute, Hyderabad. At the time of the revival of the policy the assured suppressed material information regarding her health condition. The revival of the policy was taken suppressing her ill health. The Ops 1 and 2 are ready and willing to pay the secured of paid up value of Rs.62,100/- to OP.No.3 who is a assignee. The complainant is not entitled for any relief and the complaint is liable to be dismissed.
OP.No.3 filed written version stating that the policy holder assigned the policy to OP.No.3. As assignee of the policy OP.No.3 is entitled for the amount.
4. On behalf of the complainant Ex. A1 to A4 are marked and the sworn affidavit of the complainant is filed. On behalf of the opposite parties Ex.B1 to B13 are marked and sworn affidavit of Ops 1 and 2 is filed.
5. The complainant and Ops 1 and 2 filed written arguments. Heard the counsel for OP.No.3.
6. The points that arise for consideration are
(i) whether there is deficiency of service on the part of OPs?
(ii) whether the complainant is entitled to any relief ?
- To what relief?
7. Points No.1 & 2 :- Admittedly Rafiya bee who is the wife of the complainant took the insurance policy bearing No. 652280343 for Rs.1,00,000/- in the year 1999 from Ops 1 and 2. Ex.A1=B1 is the copy of the policy obtained by Rafiya bee the wife of the complainant. Admittedly the complainant is the nominee under the said policy. The policy commenced on 28-09-1999. Half yearly premium of Rs.3063/- was payable under the policy. Admittedly the policy holder Rifiya bee died on 24-09-2006. Ex.A2 and B2 are the death certificates of Smt. Rifaya bee. There is no dispute about the death of Rifaya bee on 24-09-2006. Admittedly after the death of Rifaya bee the complainant submitted the claim form to Ops 1 and 2. As the Ops did not settle the claim ,the complainant filed the present complaint. It is the case of the Ops 1 and 2 that the policy holder committed default in payment of half yearly premiums from 28-03-2005 and allowed the policy to lapse and it was revived on 20-05-2006 on the basis of the information furnished by the policy holder. In the affidavit evidence for OP.No.1 it is clearly stated that the assured allowed the policy to lapse due to non payment of half yearly premium from 28-03-2005 and that the policy was revived on 20-05-2006 as per the personal statement submitted by the assured regarding her health. It is further case of the Ops that the assured was suffering from Breast Cancer by the date of revival of the policy and that she suppressed the said fact. The complainant no where in his sworn affidavit denied that the policy of his wife lapsed due to non payment of the half yearly premium. The Ops filed Ex.B11 personal statement submitted by the assured. It is duly signed by the assured on 20-05-2006. In Ex.B11 the assured answered the questions as stated below
(2) (a) Have you ever suffered from any illness/disease
requiring treatment for a week or more ? ……. No
(b) Did you ever have any operation, accident or injury? No
( c) Did you ever undergo E.C.G , X-ray , Screening Blood
Urine or Stool Examination? No
(3) ……..
(4) Are you in sound health at present Yes
8. It is not mentioned in Ex.B11 that the insured was ill or that she was suffering form cancer at the time of the revival of the policy. The complainant simply stated in the complaint that his wife died due ill health. He did not say that she died due to cancer. In the reply given by the complainant to the interrogatories served on him by the Ops, he admitted that his wife died due to cancer. The complainant deliberately did not state the said fact in the complaint. One who seeks Justice must come to the court with clean hands. The complainant did not give any explanation for his failure to mention in the complaint the cause of the death his wife. No doubt the burden is on insurance company to prove that there was fraudulently suppression of material fact at the time of revival of the policy . Ops 1 and 2 relied on Ex.B5 to Ex.B10 to show that the insured applied leave frequently and in her leave application she stated that she was suffering from cancer. The complainant in his reply to the interrogatories has admitted that his wife availed leave submitting the leave letters dated 14-06-2004, 17-06-2004 and 07-07-2004, 20-08-2004 and 30-06-2005. The said leave letters are marked as Ex.B6 to Ex.B10. Ex.B5 is duly attested by Principal, Government Junior Girls College, Kurnool. In Ex.B5 leave letter dated 08-06-2004 it is mentioned that she was undergoing treatment for CARCINOMA and that she was going to Madras for certain test. In Ex.B10 leave letter dated 30-06-2005 also it is stated that she was going undergoing Radiation treatment at Indo American Cancer Institute, Hyderabad and that the Doctor advised her to take rest for one more week. There is no necessity for the assured to give false information regarding to her health condition. The OPs also relied on Ex.B12 discharge summary summoned from Indo American Cancer Institute, Hyderabad to show that the insured was suffering from cancer. It is mentioned in Ex.B12 that the insured took treatment in the cancer institute for breast cancer. Admittedly the doctor who gave treatment to the insured was not examined by the OP parties. The Ops filed a petition to summon the doctor and to examine him. The Ops could not examine said doctor as he left for United States. There is material to show that the insured frequently applied medical leave prior to 20-05-2006. There is also record to show the insured took treatment of breast cancer in Indo American Cancer Institute, Hyderabad. As already stated it is admitted by the complainant in his reply for interrogatories that his wife died due to cancer. From the evidence available on record it is very clear that the wife of the complainant was suffering from Breast cancer by the date of the revival of the policy. Had she disclosed the said fact, the insurance company would have been put at caution and put the insured to a rigorous medical examination .The insured at the time of the revival of the policy suppressed the fact that she was suffering from breast cancer. Had she revealed the said fact the insurance company would have avoided to revive the policy on 20-05-2006.
9. The contract of insurance is based on at most good faith. The insured is duty bound to disclose all material facts to the insurance company .Any failure on the part of the insured with the intention to defraud would vitiate the policy. The insured died on 24-09-2006 shortly after the renewal of the policy on 20-05-2006. At the time of the revival of the policy she mentioned in Ex.B11 that she was in good health though she was suffering from Breast cancer and taking treatment. The insured fraudulently suppressed the material fact at the time of the revival of the policy. As the revival was taken with a malafide intention the Ops 1 and 2 cannot be held liable to pay any amount to the complainant except paid up value of Rs.62,100/- . Admittedly the said amount of Rs.62,100/- was already paid to OP.No.3. It is submitted by the learned counsel appearing for the complainant that basing on the recitals in Ex.B6 to B10 leave letters it cannot be said that the insured was suffering from breast cancer. In this regard the learned counsel appearing for the complainant cited a decision in II (2004) CPJ 582 where in the Uttaranchal State Commission held that mere taking medical leave by the employees is no ground to presume that the insured was suffering from appendicitis. In the present case on hand besides the leave applications of the insured , there is also medical evidence to show that the insured took treatment for cancer in Indo American Cancer Hospital by the date of revival of the policy. As the insured suppressed the material fact and got the revival of the policy, the complainant is not entitled to any relief. The Ops 1 and 2 rightly repudiated the claim of the complainant . There is no deficiency of service on the part of the Ops 1 and 2.
8. Point No.:3 In the result the complaint is dismissed. In the circumstances of the case without costs.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 10th day of August, 2010.
Sd/- Sd/-
MALE MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1 Photo copy of policy No.652280343 dt :28-09-1999
Ex.A2. Office copy of Legal Notice dt.09-04-2008 along with speed post receipt.
Ex.A3. Death certificate dt.06-10-2006.
Ex.A4. Status report of policy NO.652280343.
List of exhibits marked for the opposite parties:
Ex.B1. Original policy bond No.652280343 of Smt.Syed Rafia.
Ex.B2. Death certificate of Smt Syed Rafia.
Ex.B3. Claim statement.
Ex.B4. Certified by employer of deceased life assured.
Ex.B5. Attested copy of Leave letter of the deceased
dt.08-06-2004.
Ex.B6. Attested copy of Leave letter of the deceased
dt.14-06-2004
Ex.B7. Attested copy of Leave letter of the deceased
dt.17-06-2004.
Ex.B8. Attested copy of Leave letter of the deceased
dt.07-07-2004.
Ex.B9. Attested copy of Leave letter of the deceased
dt.20-08-2004.
Ex.B10. Attested copy of Leave letter of the deceased
dt.30-06-2005.
Ex.B11. Personal statement submitted by the deceased life assured.
Ex.B12. Photo copy of admission record of deceased of life assured in Indo American Cancer Institute and Research Centre, Hyderabad
Ex.B13. Copy of speaking order dt.31-03-2008 of OP addressed to the complainant.
Sd/- Sd/-
MALE MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on :
