Date of Filing:15.06.2007<br /> Date of Order:31.05.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> Dated: 31ST DAY OF MAY 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> COMPLAINT NO: 1187 OF 2007 <br /> <br /> <br /> Smt. T. Usharani,<br /> W/o Late Vijaya Kumar,<br /> Sneha Hitech Products,<br /> Pollution Control Division,<br /> No.3317. 7th Main, 4th Cross,<br /> R.P.C. Layout, Vijayanagar,<br /> Bangalore-560 040. Complainant<br /> <br /> V/S<br /> 1. The Branch Manager,<br /> Life Insurance Corporation of India,<br /> Unit-1, Branch Office,<br /> P.B. No.35, Shimoga District,<br /> Shimoga.<br /> <br /> 2. The Senior Branch Manager,<br /> Life Insurance Corporation of India,<br /> Divisional Office,<br /> Udupi District,<br /> Udupi.<br /> <br /> 3. The Senior Branch Manager,<br /> Life Insurance Corporation of India,<br /> Divisional Office,<br /> Jeevan Prakash,<br /> J.C. Road,<br /> Bangalore-560 032. Opposite Parties<br /> <br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed U/Sec.12 of the Consumer Protection Act, 1986 claiming Rs.15,00,000/- and costs.<br /> The facts of the case are that, the husband of the complainant had taken policy through agent of the opposite party on 19/1/2004 for a sum of Rs. 5,00,000/- with policy bearing No.622406344 for a period of 30 years and the complainant is the nominee to the said policy. The husband of the complainant died on 1/6/2005 at Kote Hosadurga due to heart attack. The copy of the policy is produced. The complainant had approached so many times to the opposite parties to release the policy amount, but the opposite parties authorities have not response to the complainant. The complainant issued legal notice through Advocate and the LIC of India Branch Unit-1 Shimoga given reply to the notice on 10/2/2007 that, the above policy filed forwarded to our Divisional Office Udupi for decision on 24/8/2006 and your letter also forwarded to our Divisional Office for necessary action. The complainant number times approached orally as well as through legal notice, but till today no reply has been issued by the opposite party. Hence, the complaint.<br /> 2. Notice was issued to opposite parties by RPAD. Opposite parties put in appearance and filed defense version stating that, the complainant addressed a letter dated 23/6/2005 to the corporation informing the corporation that T.A. Vijaya Kumar expired on 1/6/2005 and further requested the corporation to settle the death claim under the aforesaid policy. Immediately thereafter the corporation by letter dated 27/6/2005 called upon the complainant to submit the original policy bond, death certificate and enclosed claimant’s statement in Form No.3783 and certificate to examine the claim made in respect of the policy. The complainant after one year from the date of sending the claimants statement along with other certificates has submitted incomplete claimants statement and blank certificates along with the death certificate on 1/8/2006. The opposite party submits that, a perusal of the claimants statement and other certificates submitted by the complainant would show that the complainant has not disclosed the correct facts of the claimants statement. The opposite party further submits that since the complainant has failed to furnish correct information about the state of health and the treatment availed by the deceased in the claimants statement. A letter was addressed to the complainant calling upon her to send copy of the discharge summary or case sheet of the Hospital where T.A. Vijaya Kumar was operated in December 2003 for Grade III astrpcytioma, radio therapy. The complainant till date not furnished the said information to the cooperation. In view of the conduct of the complainant in respect of her claim the corporation after thorough investigation into the bonafides of the claim in respect of the policy has been able to obtain copy of the case summary sheet from Kidwai Memorial Institute of Oncology, Bangalore dated 19/12/2003, in respect of treatment availed by T.A. Vijaya Kumar, from the case summary sheet it is clear that the deceased was diagnosed for Astrocytoma and had undergone radiotherapy at Kidwai Memorial Institute of Oncology, Bangalore on 29/12/2003 just twelve days before submitting the proposal for the insurance policy. The deceased life assured had intentionally suppressed material facts and gave wrong answers as to the state of his health in the proposal form submitted at the time of taking the insurance policy. The life assured had obtained the policy from the corporation by fraudulently suppressing the facts regarding his health. The deceased has intentionally concealed material facts of the state of his health in the proposal form amounting to fraudulent suppression of facts. In view of all these reasons, the opposite parties prayed to dismiss the complaint.<br /> 3. Affidavit evidence of both the parties filed. Arguments heard. <br /> <br /> 4. The points for consideration are:-<br /> 1. Whether there was a deficiency in service on the <br /> part of the opposite parties? <br /> <br /> 2. Whether the repudiation of the insurance claim put up by the complainant is justified and proper?<br /> <br /> 3. Whether the complainant is entitled for insured amount from the opposite parties?<br /> <br /> <br /> <br /> REASONS<br /> 5. Complainant Smt. T. Usharani is the widow of deceased T.A. Vijayakumar. It is admitted fact that T.A. Vijayakumar S/o T.T Anjanappa had submitted a proposal for insurance on own life to the LIC. The opposite party had issued endowment assurance policy No.622406347 to Vijayakumar. The sum assured is Rs.5,00,000/-. The date of commencement of policy was from 19/1/2004. Assured Vijayakumar died on 1/6/2005 at Kote-Hosadurga. According to the complainant he died of heart attack. Death Certificate is produced. The complainant Smt. T. Usharani is the nominee U/Sec.39 of the Insurance Act 1938. All these facts are admitted. There is no dispute between the parties. After the death of Vijayakuamar, the complainant who is nominee had approached the opposite party and she had submitted claim statement and requested the opposite party for settling the claim and payment of insured amount and bonus. Claim statement was submitted on 25th January-2006 by the complainant. But unfortunately her claim has been repudiated by the opposite party. The claim was repudiated on the ground that he was not well and had taken treatment at Kidwai Institute of Oncology and also at St. John’s Hospital, Bangalore and Nimhans, Bangalore etc.,. The assured had given wrong answers as to the state of his health in the proposal form submitted at the time of taking the policy. Therefore, the opposite party submitted that, there was no deficiency in service on the part of the opposite party. Therefore, the complaint is not maintainable. The opposite party has produced records of Kidwai Institute of Oncology. By perusing the case summary sheet of Kidwai Hospital, the deceased Vijayakumar was diagnised for Astrocytoma. The date of admission was shown as 29/12/2003. On 29/12/2003 it is stated that patient not found when called as per the Kidwai Hospital records. The opposite party though had taken defence in the version that Vijayakumar had taken treatment at Narayana Hridyalaya, St. John’s Hospital and Nimhans, but the opposite party has not produced Hospital records or any documents to show that the deceased Vijayakumar had taken treatment at the above various hospitals. No records or documents are produced by the opposite party to show Vijayakumar had undergone operation in December-2003. It is the duty and obligation of the opposite party to establish and prove that Vijayakumar had taken treatment at various hospitals earlier to taking up policy. But in this case, the opposite party has not discharged its burden in proving the defence version. It is the case of the complainant that her husband died of heart attack. The legal position is that, Insurance Company is not liable to pay the amount if there was concealment of material facts, which have bearing on the death of the deceased and there is concealment of any fact which has relevance to the cause of death. If facts said to have been concealed has no relevance on the cause of death, the Insurance Company cannot withhold the payment of amount. In this case, even if it was taken that between the year 2003 deceased Vijayakumar had taken treatment at Kidwai Memorial Institute of Oncology for Astrocytoma that has no relevance to the death of the deceased in the year 2005 due to cardiac arrest or heart attack. The insurance doctor has examined the assured before issuance of policy and he has answered to the point that insured person was healthy. The doctor had certified the good health of the insured at the time of taking policy. The allegation and suppression of facts or misrepresentation by the assured the LIC has to prove this fact and the opposite party herein in this case has not discharged its burden by examine the insurance doctor to establish that the insured had given wrong answers or suppressed the facts. The main plea of opposite party was that deceased was suffering from Astrocytoma and was operated in December-2003. The burden to prove this fact was on opposite party, but the opposite party in this case has not produced any satisfactory and acceptable evidence to prove this fact. The records produced from the Kidwai Memorial Hospital are not clear. The said case summary sheet does not disclose any details or treatment or it does not mention the undergoing of operation etc., and secondly the death of assured was connected with the earlier decease has to be proved and established by the opposite party, but in this case again the opposite party has failed in its duty to prove satisfactorily that the assured Vijayakumar died due to Astrocytoma. The claim of the complainant is that her husband died of heart attack. Therefore, the repudiation of the claim by the opposite party submitted by the complainant is not justified and proper. The repudiation of the claim by the opposite party on the plea that the deceased while filling up the proposal form was guilty of fraudulent, misrepresentation and suppression of material facts with regard to his health. This defence necessarily has to be established and proved by the opposite party. But in this case, the opposite party has not established or proved that there was fraudulent suppression of material facts by the assured. It is common knowledge that while making policy, the policy forms will be filled up by the agent of the LIC and assured put his signatures on the forms filled up by the agent. Therefore, no malice or fraud or misrepresentation can be alleged against assured in this case. If there was no nexus between the death of the assured and the alleged decease he was having, in that case the repudiation of the claim by the LIC is not justified. In a recent judgment Punjab State Consumer Disputes Redressal Commission, Chandigarh reported in 1(2007) CPJ-05 it has been held as under:-<br /> LIFE INSURANCE CORPORATION OF INDA & OTHERS <br /> -Appellants<br /> Versus<br /> ASHOK MANOCHA -Respondent<br /> Consumer Protection Act, 1986 – Section 2(1)(g) – Life Insurance – Repudiation of lawful claim of complainant- Legality – Suppression of material facts regarding health alleged while repudiating claim – Insured known case of cardiomyopathy, congestive heart failure, NIDDM, etc. – Death due to head injury suffered in accident- No nexus between cause of death and alleged diseases – Withholding of material information should have something to do with cause of death – Insurer deficient in service by repudiating lawful claim of complainant – Liable to pay sum as per policy. <br /> <br /> Again in a case reported in II (1996) CPJ-92 Gujarath State Consumer Disputes Redressal Commission, where in it has been held as under:-<br /> <br /> Consumer Protection Act, 1986 – Sections 2/17 – “Complaint” – “Insurance” – “Life Insurance” – “Material facts” – Suppression of – Diabetes – Non-disclosure of – Heart attach – Death – O.P, failed to establish nexus in between the diabetes and heart attack – Claim repudiated – Whether amounts to “deficiency in service? – (Yes)<br /> <br /> Held: Dr. Shah has no doubt stated that patient suffering from diabetes has chances of getting heart attack but he could not definitely state as to for what reasons the deceased got heart attack. Thus, no connection between diabetes and heart attack is established. In other words, it is not proved that the deceased had heart attack on account of diabetes. Thus there is no nexus between the cause of his death and diabetes. Even if he was suffering from diabetes at the time when he made the proposal, diabetes is not proved to have bearing on the cause which resulted in the death of the deceased. Therefore, even if the deceased had failed to disclose that he was suffering from diabetes at the time when he made the proposal, the liability under the policy could not be denied on the ground of suppression of material facts. <br /> <br /> In another case reported in 1(1994) CPJ-495 Uttar Pradesh State Consumer Disputes Redressal Commission wherein ithas been held as under:-<br /> Consumer Protection Act, 1986 – Sections 12,17 – “Life Insurance” –“Concealment of material facts” – “Repudiation of claim” – “Complaint” – Complaint lodged on the basis of Insurance Policy taken by deceased – Deceased died in May, 88 – Claim repudiated by Opp. Party in Jan, 90 on the ground that information sought from the deceased about the nature of business incorrect – Complaint – Whether the claim can be avoided? – (No)<br /> <br /> Heald: The legal position is that Insurance Company is not liable to pay the amount if there is concealment of material facts which have bearing on the death of the deceased and there is concealment of any matter which has relevance to the cause of death. If facts said to have been concealed have no relevance on the cause of death, the Insurance Company can not withhold payment of amount. In the instant case reply to question which are alleged to be false have no relevance to the cause of the death. <br /> <br /> <br /> The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in a case reported in III (2006) CPJ-304 wherein it has been held as under:-<br /> Consumer Protection Act, 1986 – Section 2(1)(g) – Life Insurance – Suppression of material facts – Burden to prove – On insurer – No evidence to establish deceased suppressed material disease at time of taking policy – Certificate of doctor who examined deceased not produced – No documentary evidence to show deceased taken treatment for diabetes and same finally led to cardiacarrest – Deceased first observed on 27.7.1991 – Died same day – Case of sudden death due to heart attack – No suppression of facts regarding health – Repudiation unjustified – Insurer liable. <br /> <br /> <br /> In another decision of Union Territory Consumer Disputes Redressal Commission, Chandigarh in a case reported in III (2005) CPJ-114 wherein it has been held as under:-<br /> <br /> Consumer Protection Act, 1986 – Section 17 – Life Insurance – Death – Repudiation of Claim – Without any basis – Doctor certified health condition of deceased before issuance of policy was proper – Never suffered from hypertension, heart disease and paralytic attacks – Died a natural death due to bursting of vein of brain – Insurer deficient in service by repudiating lawful claim of complainant – Liable to pay sum as per policy. <br /> <br /> So, taking into consideration of all the facts and circumstances of the case and the authorities referred above and after considering the arguments advanced by both the learned advocates for the parties, I am of the opinion that, there was deficiency in service on the part of the opposite party in not allowing the claim. The rejection or repudiation of the claim put up by the complainant is not justified. The opposite parties shall be directed to accept the claim of the complainant who is the widow of the deceased and pay the sum assured. The claimant has claimed double benefit of the policy amount. The policy in question is endowment policy. The sum assured is Rs.5,00,000/-. The policy is not in respect of double benefit. The complainant without any basis has claimed double benefit. The complainant has also claimed Rs.2,00,000/- towards mental agony and Rs.2,50,000/- towards deficiency of service and Rs.50,000/- towards expenditure. All these claims put up by the complainant are without any basis. The complainant is not entitled for any amount except the sum assured and interest. As per the policy if death takes place before the maturity the amount payable is sum assured i.e., Rs.5,00,000/- + vested bonus. Therefore, it would be just fair and proper to order the opposite parties to accept the claim of the complainant and pay Rs.5,00,000/-, the sum assured + vested bonus as per the policy conditions. The complainant is also entitled interest on the amount of Rs.5,00,000/- because of the delay in payment of the amount. It would be just proper and reasonable to grant interest at 10% p.a on the sum assured from the date of filing of complaint till realization. In the result, I proceed to pass the following:-<br /> ORDER<br /> <br /> 6. The complaint is allowed. The opposite parties are directed to pay assured sum of Rs.5,00,000/- + vested bonus to the complainant. The complainant is also entitled for interest at 10% p.a on the above amount from the date of complaint till realization. The opposite parties are directed to settle the claim and pay the amount within 30 days from the date of this order. The complainant is also entitled to Rs.5,000/- towards costs of the present proceedings against the opposite parties. <br /> <br /> <br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> <br /> 8. Pronounced in the Open Forum on this 31ST DAY OF MAY 2008.<br /> <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> <br /> MEMBER MEMBER <br /> <br /> <br /> <br /> <br />