BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 49/11.
THIS THE 18th DAY OF OCTOBER 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER
*****
COMPLAINANT :- Mustaf Hadimani S/o. Chandu SAb, age____
years, Occ: agri, R/o. Balagnur village, Tq. Sindhanur.
//VERSUS//
OPPOSITE PARTY :- The Branch Manager, SBI Life Insruance,
Station Road, Mallana Nair Kalyan Mantap Complex, Raichur.
CLAIM :- For to direct the opposite to pay an amount of
Rs. 4,00,000/- towards policy amount along with interest at the rate of 2% and Rs. 50,000/- as damages expenses mental shock agony etc., along with other benefits of policy in question.
Date of institution :- 28-06-11.
Notice served :- 15-07-11.
Date of disposal :- 18-10-11.
Complainant represented by Sri. Basavaraj G.Y. Advocate.
Opposite Party represented by Sri. Yadavendra Katti, Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Gururaj, Member:-
This is a complaint filed by one complainant Mustafa Hadimani S/o. Chandu Sab against Opposite the Branch Manager, SBI Life Insurance Company Raichur, U/sec. 12 of Consumer Protection Act, for to direct the opposite to pay an amount of Rs. 4,00,000/- towards policy amount along with interest at the rate of 2% and Rs. 50,000/- as damages expenses mental shock agony etc., along with other benefits of policy in question.
2. The brief facts of the complainant’s case are that, that the wife of the complainant had insured her life with the Respondent under policy No. 37005641202 for Rs. 4,00,000/- and the premium amount was payable by her was at Rs. 25,000/- p.a. The policy holder Smt. Hussainbee W/o. Mustafa Hadimani died on 10-04-10 on the death of the policyholder the complainant being the nominee of said policy has surrendered the said policy and by furnishing the relevant applications, copies etc., has requested the Respondent the settled the death claim benefits of said policy. But the Respondent instead of settling the death claim to the tune of Rs. 4,00,000/- with its benefits paid only Rs. 19,899/- through letter dt. 21-10-10 which are totally contributory, arbitrary terms of policy It is further case of the complainant that, immediately after the receipt of the said letter approached the said Respondent and requested for to settle the policy amount and benefits to which is entitled as per the policy for which the Respondent postponed the dragged the matter on one or the other pretext by giving untenable reasons. The complainant thereupon got issued the legal notice on 25-05-11 calling upon the Respondent to settle the claim in reply on 02-07-11 once again refused the claim by giving untenable reasons. It is further contended that, at the time of taking the policy, policy holder has undergone number of tests examinations as required by the opposite, after making such tests and examinations the policy has been issued by collecting the policy amount. Now, the opposite cannot turn round and disclosed and put forth untenable reasons and reject the claim of the complainant as per the letter dt. 02-06-11. The Respondent is bound to pay the policy amount and benefits to the nominee. The non payment of the policy amount and benefits to the nominee and making payment only to the tune of Rs 19,899/-on the premium amount of Rs. 25,000/- shows the act tendency of the Respondent which are totally contrary, arbitrary deficiency of service for which the complainant sustained mental shock, agony and incurred heavy loss. Therefore, he has sought for the relief as prayed in the complaint.
3. Opposite Insurance Company appeared in this case through its Advocate, filed written version by contending that, the life insurance contract is a contract of “UTMOST GOOD FAITH’ where in the proponent is duty bond to disclose everything concerning his/her health, habits and other related matters which are within his/her knowledge at the time of making the proposal failing which the insurer has every right to repudiate the claim. In the instant case, the deceased life assured Smt. Hussainbee committed a breach of principle of UTOMOST GOOD FAITH by suppressing the material fact that, she was diagnosed for Advanced Carcinoma overy stage IV prior to the date of commencement of risk. At the time of signing the proposal form on 31-03-10 she was deliberately suppressed this material facts and obtained the insurance cover fraudulently. The failure of the insured to reveal a matter fact to the insurer is fatal to the contract of insurance which is based on the principles of UTMOST GOOD FAITH. Thus any contract of insurance procured by breach of the principle is nullity and void abinitio. Further it is contended that, if the insurer comes to know about the suppression of material facts subsequently it has got every rights to repudiate the claim under any insurance cover so granted on the basis of doctrine of UTMOST GOOD FAITH. The present complaint has not filed for real cause of justice but has not been filed with malafide intention to harass the Respondent as well as to pressurize the Respondnet to sanction the claim filed by the complainant knowing fully well that, the deceased life assured had concealed and suppressed the material facts at the time of taking the insurance policy thereby she committed a fraud with an intention to obtained the insurance cover by suppressing the history pre-existing decease which was very well with in her knowledge. It is a cheating to get an advantage. Thus in terms of section 17 of Indian Contract Act, the contract is void hence there cannot be any enforcement any right under a contract which is void ab-initio. Further it is contended that, the proposal form was signed on 31-03-10 the date of commencement of risk on the life of Smt. Hussainbee was also on 31-03-10 and from the records it is cleared that, the Hussainbee was suffering from cancer much prior to the date of enrolment into the insurance scheme. She was falsely answered the questions posed in proposal form by suppressing the material facts of her decease, treatment etc., Further she has given false declaration in the proposal form hence the Respondent insurance company repudiated the claim of the complainant. Further it is contended that, the deceased life assured if she would have declared about the cancer earlier to sign the proposal form, for which the life insurance company would have declined the proposal itself, but she has done so. If she would have suffers from latent deceases like cancer this will not get reveal at the time of preliminary medical examination conducted by the doctor of opposite at the time of taking the policy. Only primary medical examinations like, height, weight, BP, etc., will be conducted. Under such circumstances, the life assured should inform clearly about the decease if they are suffering and about their hospitalization and operations if any, if they failed to disclose it is nothing but a suppression of material facts that was happened in the present case. Hence the claim of the complainant was rejected. The Respondent has acted as per the terms and conditions of the policy and hence there is no deficiency in service on the part of the Respondent. The complaint is not entitled to any relief and reliefs prayed for in the complaint as they are unjust illegal and unfair. The present complaint is frivolous, vexatious and is an abuse of process of law, hence, sought for dismissal of the complaint with exemplary cost.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, there is a deficiency in service on the part of the opposite, as alleged.?
2. Whether complainant is entitled for the relief’s as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In Negative.
(2) In Negative.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 & 2:-
6. In order to prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. Documents Ex.P-1 to Ex.P-4 are marked. On the other hand, affidavit-evidence of one Sri. V.Srinivas S/o. S.H. late V.M. Somayajulu working as an Head Legal, authorized representative of the opposite insurance company was filed, he was noted as RW-1. 12 Documents as Ex.R-1 to Ex.R-12 are marked.
7. As per the pleadings of the parties and documents, made available before this Forum, the following points are coming before us for to decide the matter involved in this complaint.
1. Whether, the wife of the complainant by name Smt. Hussainbee is suffering from cancer earlier to sign the proposal form or to commencement of the risk under the policy bearing No. 37005641202 for Rs. 4,00,000/-.
2. Whether, the deceased life assured i.e, wife of complainant has suppressed the material facts and obtained the policy with an intention to get illegal benefit out of the said policy.
3. Whether, the repudiation claim of the complainant by the opposite Insurance Company is right as contended by opposite.
8. The both parties in order to prove their case have filed following documents:-
Documents filed by the complainant are (1) Repudiation Letter dt. 21-10-10 is marked at Ex.P-1, (2) Legal notice dt. 25-05-11 issued by complainant counsel is marked at Ex.P-2, (3) The postal acknowledgement for having sent the legal notice is marked at Ex.P-3, (4) Reply notice dt. 02-06-11 issued by opposite insurance company to the complainant is marked at Ex.P-4. Similarly documents filed by the opposite are (1) copy of the proposal form marked at Ex.R-1, copy of the policy bond marked at Ex.R-2, (3) copy of the investigation report marked at Ex.R-3, (4) Copy of Ultra Sound abdomen report dt. 29-10-10 marked at Ex.R-4, (5) Copy of the X-ray report dt. 29-10-09 marked at Ex.R-5, (6) Copy of M.R.I. Report dt. 04-12-09 marked at Ex.R-6, (7) Copy of the Cytology Report dt. 08-12-09 marked at Ex.R-7, (8) Copy of the admission and death certificate issued by K.M.I.O, marked at Ex.R-8, (9) Copy of the claim repudiation letter dt. 14-10-10 marked at Ex.R-9, (10) Copy of the legal notice issued by complainant counsel to opposite is marked at Ex.R-10, (11) Reply notice dt. 02-06-11 marked at Ex.R-11, (12) Copy of the judgment in Dineshbai Chandranna V/s. LIC of India is marked at Ex.R-12.
9. We have gone through the pleadings of the parties and documents filed by both the parties, the first point four our consideration is, whether the wife of the complainant by name Smt. Hussainbee is suffering from cancer earlier to sign the proposal form or to commencement of the risk under the policy bearing No. 37005641202 for Rs. 4,00,000/-.
In this regard we have carefully examined the documents filed under Ex.R-1 & Ex.R-2 i.e, coy of the proposal form and policy of deceased life assured Smt. Hussainbee. From this documents it is very clear that, the deceased life assured signed the proposal form No. 37-1185517 on 31-03-2010 in respect of policy bearing No. 37005641202 for Rs. 4,00,000/- with a yearly premium of Rs. 25,000/- and on the same day the policy was commenced and risk was also started. Further, on perusal of the Ex.R-4, ie, Ultra Sound Abdomen Report dt. 29-10-09 issued by Raichur Diagnostic Center, pertaining to Mrs. Hussainbee i.e, deceased life assured is clearly goes to show that, for the first time she came to know about the large ovarian cyst measures 163 x 127 mms. The doctor after making the ultra sound test of abdomen he was impressed that, along with other things he noticed with large ovarian cyst with futures consistent with possibility of malignancy. On perusal of such findings it cannot be said that, same was not informed to the patient i.e, deceased life assured by her doctor one who has referred by doctor B.Mahalingappa, of Raichur. Further, on perusal of Ex.P-5 i.e, X-ray report dt. 29-10-09 it is also clearly goes to show that, the patient was suffering from cancer. Further on perusal of the other documents i.e, M.R.I. Report and cytology Report produced under Ex.R-6 & Ex.R-7 it is very clear that, the wife of the complainant Smt. Hussainbee i.e, deceased life assured was having cancer. It is worthwhile to note here that, all the above said documents were having the dates as 29-10-09, 29-10-09, 04-10-09 and 02-12-09, it means the deceased Hussainbee i.e, wife of the complainant was having cancer and same was detected by various clinical tests from the various hospitals and labs. Further it is worthwhile to note here that, the above said dates are earlier to the date of signing of proposal forms and obtaining the policy from the opposite by the deceased life assured. It means the life assured was having cancer decease i.e, Adeno Corcinoma prior to filing proposal forms and prior to obtaining the policy from the opposite. From this it is very clear that, the contention of the opposite regarding pre-existing decease by the deceased life assured and suppression of it in the proposal form is correct and proper. Hence we have accepted the defence of the opposite regarding pre-existing decease of the deceased life assured Smt. Hussainbee, and confirmed the Point No-1 in favour of opposite.
10. Regarding Point No-2 is concerned, i.e, whether, the deceased life assured i.e, wife of complainant has suppressed the material facts and obtained the policy with an intention to get illegal benefit out of the said policy. As discussed above, and after perusal of the documents particularly produced under Ex.R-4, R-5, R-6 & R-7 i.e, Copy of Ultra Sound abdomen report dt. 29-10-10 marked at Ex.R-4, Copy of the X-ray report dt. 29-10-09 marked at Ex.R-5, Copy of M.R.I. Report dt. 04-12-09 marked at Ex.R-6, Copy of the Cytology Report dt. 08-12-09 marked at Ex.R-7. It is very clear that, the various doctors of various hospitals and diagnostic centers have confirmed in their respective reports regarding the pre-existing decease i.e, Adeno Corcinoma which was at IV stage. The deceased life assured was no doubt having knowledge about it because she was undergone various tests and treatments in this regard at various hospitals but at the time of availing the policy from the opposite she never disclosed about the treatment of the decease what she is suffering, further this fact will also give support to the case of the opposite regarding giving false answers while filling the proposal form. The proposal form which was signed by the deceased life assured produced at Ex.R-1 clearly speaks about the questions posed to her in Para-8 under the head of “Medical and other details of the life to be assured”. Under the same head at the 15th point, it is clearly asked to the complainant about the existing deceases and treatment for the same. But the same was denied and stated as ‘No’ as contended by the opposite. This fact was clearly goes to show that, the life assured Smt. Hussainbee has not disclosed her pre-existing decease to the insurance company with an intention to get unlawful monetary benefit for opposite and thereby she has committed breach of principle of UTMOST GOOD FAITH. Under this circumstances, the contention of the opposite about the suppression of material facts and obtained the policy in order to get illegal gain is proper and genuine one. Hence the Point No-2 is proved in favour of opposite.
11. In respect of Point No-3 is concerned, i.e, whether, the repudiation claim of the complainant by the opposite Insurance Company is right as contended by opposite, for this our view is that, ‘Yes’ because after making clear discussion regarding Point No-1 & 2, it is very clear that, the deceased life assured Hussainbee was suffering from cancer and same was detected earlier to signature of the proposal form and obtaining the policy and same was known to her by various reports, tests, treatments. But at the time of obtaining the policy she was suppressed the same further, on perusal of Ex.P-8 i.e, admission and death certificate issued by K.M.I.O Bangalore it is very clear that, she was died due to the cancer on 10-04-10 immediately after obtaining the policy i.e, nearly about 10 days from the date of obtaining the policy. It is worthwhile to note here that, in the complaint at no where it has mentioned that, for what reason the wife of the complainant has died and further it is not the case of the complainant that, she was not died due to the Adeno Corcinoma i.e, cacner. And no documents were filed by the complainant about the cause of death. Under such circumstances, the documents produced under Ex.R-8 i.e, Admission & Death Certificate issued by KMIO, Bangalore is clearly support the case of the opposite regarding cause of death is concerned and suffering of cancer decease by the deceased life assured.
12. The complainant at the fag end of the case i.e, at the time of judgment submitted some of the rulings but for the sake of interest of the party, we have gone through the same they are: (1) III (2009) CPJ 51, (2) III 2009 CPJ 6 (NC), (3) 2011 (3) CPR 23(NC) and (4) Judgment in CC. No. 34/2003 dt. 28-09-2004. The judgments produced by the complainant are not applicable to the case of the complainant. The facts discussed under the judgments and the case in hand are quite different, hence with great respect, we have not considered the same.
13. From viewing from all the angles, the opposite parties have proved their case against the complainant and clearly established that, the deceased life assured Smt. Hussainbee was suffering from cancer earlier to obtaining the policy and same was suppressed by her. Under such circumstances, we have come to the conclusion that, the complainant has failed to prove the case but opposites have discharged their part of burden in proving material suppression of existing earlier deceases hence we have answered point No-1 in negative.
14. In view of our finding on Point No-1, the complainant is not entitled for any one of the relief’s as prayed in this complaint,
POINT NO.3:-
15. In view of our findings on Point Nos. 1 & 2, we proceed to pass the following order:
ORDER
This complaint filed by the complainant is dismissed.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 18-10-11)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
