BEFORE THE DISTRICT CONSUMER’S FORUM: KURNOOL

Present: Sri.Y.Reddappa Reddy, M.A., L.L.M., President,

And

Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Monday the 6^th day of April, 2015

C.C.No.97/2013

Between:

NDVRV Nightingale,

W/o K.Jayaram Prasad,

D.No.1/16, C/o K.Balaswamy,

Gunthanala Village-518 593,

Nandyal Mandal,

Kurnool District.                                                            …Complainant

-Vs-

1.       Reliance Insurance Company Limited,

Represented by its Branch Manager,

          D.No.25-692/2&3, Rao’s College Building,

          TTD Kalyanamandapam Road,

Nandyal-518 501.

2.       Reliance Insurance Company Limited,

          By Authorized Signatory,

9^th and 10^th Floor, Building No.2,

          R-Tech Park, Nirion Compound,

Next to Hub Mall,

          Behind I.Flex Bidg,

Goregaon (East), Mumbai-400 063.                      …OPPOSITE PARTies

This complaint is coming on this day for orders in the presence of Sri.S.Siva Rama Krishna Prasad, Advocate for complainant and Sri.M.Murali Mohan, Advocate for opposite parties 1 and 2 and upon perusing the material papers on record, the Forum made the following.                                                                                                                                    

            ORDER

(As per Smt. S.Nazeerunnisa, Lady Member,)

 C.C. No.97/2013

1.       This complaint is filed under section 12 of Consumer Protection Act, 1986 praying:-

1. To direct the opposite parties to pay sum assured i.e., Rs.2,00,000/- with accrued bonus and interest other benefits arisen out of the policy bearing No.119684682.

2. To award the sum of Rs.25,000/- towards compensation causing mental agony to the complainant by the opposite party No.2.

3. To pay costs of this complainant.

4. To such other relief or reliefs as the Honourable Forum deems fit and proper circumstance of the case.

2.    The facts of the complainant in brief run as follows:-  The complainant is the wife of Lat.K.Jayaram Prasad. On 07.01.2012 K.Jayaram Prased insured his life with the opposite parties under the policy bearing No.19684682 for assured sum of Rs.2,00,000/- with annual  premium amount of Rs.18,305.76Ps.  The complainant is the nominee under the policy. On 20.03.2013 the insured died due to sudden cardiac problem.  The complainant who is the nominee under the policy submitted the claim form to the opposite parties. On 04.06.2013, the opposite party No.2 repudiated the claim of the complainant on the ground, that the deceased was answer negatively for question No.28 and 29 in the proposal form and suppressed the material facts regarding his health condition, that the deceased was hospitalized and treated for liver disease.  The allegations of opposite parties are baseless.  The Entire proposal from was filled up by the Agent of the opposite party and the policy also issued after due satisfaction of opposite parties.  The deceased/ insured was not suffered with any kind of ailment.  There is a deficiency of service on the part of opposite parties and caused mental agony by repudiated the claim of the complainant.  Hence this complaint.

3.       Opposite party No.2 adopted the written version of opposite party No.1.  Opposite party No.1 filed written version stating that the complaint is not maintainable either in law or on facts of case.  It is admitted that the opposite parties issued Reliance Cash Flow Plan policy bearing No.19684682 by a proposal dated 31.12.2011 for an installment premium of INR. 18,306/-.  For an assured a sum of Rs.2,00,000/-. The policy came in to effect from 07.01.2012 and the complainant is the nominee under the policy (the policy terms is 16 years). It is also admitted that the complainant submitted claim form to opposite parties and the opposite parties repudiated the claim on 04.06.2013 for non-disclosure of material facts.  It is submitted that after enquiry and statutory investigation, it was found that the deceased was already hospitalized and treated for Chronic Liver disease at Asian Institute  of Gastroenterology Private Limited, Hyderabad on 11.07.2011, to 14.07.2011, prior to taking the policy and this fact was deliberately  concealed in the proposal form.  The Life Assured was again admittedly at Asian Institution of Gastroenterology, Hyderabad for HTN complication on 18.03.2013, thereafter on 20.03.2013, the life Assured Succumbed to death due to acute severe Pancreatitis.  The opposite parties rightly repudiated the claim of the complainant as per the terms and conditions of policy.  There is no deficiency of service on the part of opposite parties.  Hence the complaint is liable to be dismissed.

4.       On behalf of the complainant filed Ex.A1 to Ex.A3 are marked and sworn affidavit of complainant is filed.  On behalf of the opposite parties filed Ex.B1 to Ex.B6 are marked and sworn affidavit of opposite party No.1 is filed.

5.       Both sides filed written arguments.

6.       Now the points that arise for consideration are:

1. Whether there is deficiency of service on the part of opposite parties? 

2. Whether the complainant is entitled for the reliefs as prayed for?

3. To what relief?

7.      POINTS i and ii:- Admittedly the insured Kanala Jayaram Prasad took the policy from the opposite party No.2 through opposite party No.1 under Ex.B1 policy copy along with proposal form policy bearing No.19684682 for an assured amount of Rs.2,00,000/- on the annual premium of Rs.18,306/- with its date of commencement 07.01.2012 for a term of 16years.  The Deceased insured died on 20.03.2013.  Ex.A1 is the death certificate issued by Registrar of Births and deaths, Nandyal, dated 03.04.2013.  Admittedly the complainant submitted claim form to opposite parties.  Ex.A2 is copy of Death Claim along with Requisition letter by the complainant to the opposite parties for the settlement of claim.  The said claim was repudiated by the opposite parties under Ex.A3=Ex.B6 dated 04.06.2013, on the ground that the insured suppressed the material facts regarding his health at the time of taking policy.

8.       The complainant in her sworn affidavit stated that the allegations made against the insured are baseless.  After all formalities were completed, the opposite parties insured policy in favour of insured on 20.03.2013.  The insured suddenly developed some discomfort in the chest and immediately he shifted to Primary Health Centre, Tanguter for treatment, but unfortunately the insured died by that time.  The medical officer also gave declaration to that effect.  The deceased never suffered from any disease as alleged by the opposite parties.

          The opposite party No.1 in his sworn affidavit stated that the opposite parties appointed investigator to enquire about the cause of death.  After due enquiry it was found that on 11.07.2011 the insured   deceased was admitted and treated at Asian Institute of Gastroenterology Private Limited, Hyderabad for chronic liver disease and also treated for HTN Hypernectremia  and had knowingly and deliberately concealed the pre-existing disease in the proposal form.  Again on 18.03.2013 the Life Assured was admitted at Asian Institute of Gastroenterology for HTN problem and on 20.03.2013 the Life Assured Succumbed to death due to acute severe pancreatitis.  Ex.B2 and Ex.B5 are the copy of medical Record of the complainant issued by the Asian Institute Gastroenterology, dated 16.07.2011 and 18.03.2013.  Ex.B3 is the copy of investigation report dated 20.05.2013 and Ex.B4 is the copy of affidavit of investigator.  Ex.B6 is the repudiation letter dated 04.06.2013.  As per the terms and conditions of policy, the suppression of facts will result in disentitlement.

9.       The learned counsel appearing for the opposite parties contended that the pre-existing disease, which the Life Assured was suffered is a material fact in determined the grant of the policy, if the insured had been truly disclosed, the fact, the opposite parties would not have been granted the policy.  The Life Assured violated the terms and conditions of policy, so the policy shall became void and also claims to any benefits shall cease and all monies that have been paid by the policy holder shall belong to the Insurance Company.

          The learned counsel appearing for the complainant argued that the deceased never treated for any liver disease and never taken drugs to attract the question no 28 and 29 of the proposal form.  All the Ex.B2 to Ex.B4 are Xerox copies, the opposite parties did not summoned to the doctor, who treated the deceased from 11.07.2011 to 14.07.2011.  So the authenticity of Ex.B2 to Ex.B4 is doubt full and not trust worthy.  All the columns on 24 to 33 are mechanically printed and filled up by its own Agent M.Ramakrishna without explaining any consequences.  The opposite parties did not filed any affidavit of Agent.  The onus is on the Insurance Company to prove the alleged pre-existing disease of insured.  To support his version he cited decisions reported in III (2014) CPR Page 1 (NC) Abdul Latheef and others -Vs- Life Insurance Corporation of India, Represented by its Chairman and others,  III (2014) CPR page 401 (NC)  SBI Life Insurance Company Limited -Vs- Harvinder Kaur and another the Honourable National Commission. In the cited case the petitioner produced photo copy of Discharge card the Honourable National Commission held that onus of proving ground for repudiation of Insurance claim lies heavily on Insurance Company.  Since the petitioner has failed to produce primary evidence to establish ground for repudiation of claim.  In present case on hand also the opposite parties filed Xerox copies of medical reports which are secondary evidence.

10.     There is no dispute with regard to issuance of policy (Ex.B1) in favour of deceased insured, the complainant is the nominee under the said policy, she made a claim to opposite parties and opposite parties repudiated the claim on the ground, that the deceased insured suppressed the material facts in regard to his health.  The burden lies on the opposite parties to establish that the deceased had been suffered from liver problem prior to taking the policy.  The opposite parties produced Ex.B2 and Ex.B5 the photo copy of case sheet and progress report regarding the admission of deceased insured at Asian Institute of , dated 16.07.2011 and 18.03.2013 are filed.  The said Ex.B2 and Ex.B5 are Xerox copies.  To establish the authenticity of Ex.B2 and Ex.B5 the opposite parties did not take steps to call the original case sheet from the concerned hospital, the opposite parties did not choose either to examine the doctor, or at least not filed an affidavit of doctor, who issued the same and treated the deceased insured. Mere filling medical certificates without examine a doctor is not prove the said facts and Ex.B2 and Ex.B5 are secondary evidence.  Without filling any affidavit of a doctor or examine a doctor on their behalf we could not come in to conclusion that the insured was suffered from the alleged disease and had been taken treatment prior to taking the policy.  The opposite parties could not establish that the deceased insured suppressed the material facts regarding his health at the time obtaining the policy. We found deficiency of service on the part of opposite parties and caused mental agony to the complainant.  Hence the complainant is entitled for an assured amount of Rs.2,00,000/- with benefits under the policy  .

11.     In the result, the complaint is partly allowed directing the opposite parties jointly and severally liable to pay an assured amount of Rs.2,00,000/- with benefits under the policy with interest at 9% per annum from the date of complaint i.e., on 16.07.2013 till the date of payment and  further direct to pay compensation of Rs.5,000/- towards mental agony and Rs.1,000/- as costs of the case.  Time for compliance is one month from the date of receipt this order.

          Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 6^th day of April, 2015.

Sd/-                                                                                             Sd/-

LADY 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 death certificate issued by the Register of Births                           Deaths, Nandyal dated 24-03-2013.

Ex.A2          Requisition of the complainant the Opposite party No.1 for                                  settlement of claim.

Ex.A3          Photo copy of repudiation letter 04-06-2013.

List of exhibits marked for the opposite parties:-

Ex.B1                   Photo copy of the policy and proposal form of the deceased                       

                   of complainant, dated 08-01-2012.

Ex.B2                   Photo copy of the Medical Record of the complainant issued by                           The Asian Institute of Gastroenterology, dated 16-07-2011.

Ex.B3                   Photo copy of the report of the investigator, dated 20-05-2013.

Ex.B4                   Photo copy of the affidavit of the investigator, dated 29-07-2013.

Ex.B5          Photo copy of the medical record of the deceased complainant issued by the Asian Institute of Gastroenterology, dated 18.03.2013.

Ex.B6                   Photo copy of the repudiation letter, dated 04-06-2013.

Sd/-                                                                                         Sd/-

LADY MEMBER                                                                          PRESIDENT

// Certified free copy communicated under Rule 4 (10) of the A.P.S.C.D.R.C. Rules, 1987//

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