BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:   31^st July 2015     

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.:  86/2015 

Complainant/s:

Murugeppa s/o.Channappa Horadi,               Age: 50 years, Occ: Private Service, R/o.No.438, Mayur Nagar, Opp. Anand Nagar, Old Hubli, Hubli

(By Sri.S.S.Mukke, Adv)

v/s

Respondent/s:

1. The Branch Manager, LIC of India, B.O.No.1, LIC Building, Lamington Road, P.B.No.25, Hubli

2. The Senior Divisional Manager, LIC of India, Main Branch, P.B.No.14, College Road, Dharwad

(By Sri.M.G.Gadgoli, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to settle the double accident benefits amount of Rs.10 lakhs as per the policy with interest @12%, to pay Rs.2 lakhs towards compensation, Rs.10000/- towards cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, the complainant’s wife late Smt.Pushpa had insured her life under the policy bearing no.638622597 by name Jeevan Anand (with profit) with accident benefit for a sum assured amount of Rs.5 lakhs on 27.03.2012. At the time of proposal the agent of the respondent had taken all details with regard to the health. At the time of proposal the wife of complainant was hale and healthy and was not suffering from any disease. On verifying and ascertaining the respondents have issued the policy on 05.04.2012. While the said policy was in force on 15.04.2012 the wife of the complainant fell down in the bathroom & sustained injuries and she has become unconscious. Immediately she was taken to Chetanya Multispecialty hospital Hubballi for treatment. As the treatment was not succeeded she succumbed to injuries on 18.04.2012 at 3.15 AM due to multiple organ failure secondary to cerebro vascular accident. Thereafter the complainant being a nominee submitted claim for settlement of the benefit under the policy. The respondent.1 by letter dt.13.03.2013 rejected the claim on the bases of false statement and suppression of sufferings. The rejection of the claim is on false grounds without any grounds. Due to non settlement of the claim amount the complainant subjected to harassment and mental agony and non settlement of the claim by the respondent amounts to deficiency in service and unfair trade practice. Hence, the complainant got issued legal notice to the respondents on 29.05.2013 calling upon to settle the claim. Despite service of notice the respondents neither replied nor complied. Hence, complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that the very complaint is false, frivolous, vexatious in all its material particulars and prays for dismissal of the complaint as not maintainable either on law or on facts. Further respondent taken contention that complainant is not a consumer and is not a consumer dispute and the claim of the complainant not comes within the purview of jurisdiction of this Forum as it involves and required voluminous trial to prove the case. Under those circumstances the Forum is barred by the jurisdiction to adjudicate the same and prays for dismissal of the complaint. While the respondent admits issuance of the policy, coverage of the risk and death of the assured & further contended the assured died within 20 days of obtaining the policy which is an earlier claim and she has obtained the same by non disclosure of the sufferings, hypertension, diabetes mellitus which she was known at the time proposal & as per the medical certificate the death was not due to any accident, due to external violent and visible means and caused due to sufferings from diabetes mellitus and hypertension and she was suffering from the same even prior to signing the proposal form. Since the contract of insurance being a good faith i.e. uberimmafiede the assured was supposed to disclose all the material facts with regard to the health status of treatment taken but assured suppressed all those facts by misleading had obtained the same & puts the complainant to strict proof of the same. The assured died on 08.04.2012 & the present complaint filed on 27.02.2015 is hopelessly barred by time and prays for dismissal of the complaint as is not maintainable as per CP Act. The complainant’s case is that his wife fell in the bathroom at Hubli on 15.04.2012 and was admitted to Chaitanya Multispecialty hospital Hubli. While the laboratory report of the said hospital reveals she was suffering from T2 DM and HTN, these diseases do not appear all of a sudden. As per inpatient no.1321/12 dt.09.02.2013 of the hospital reveals deceased Smt.Pushpa admitted to the hospital on 15.04.2012 with multiple organs failure secondary to cerebral vascular and secondary reason of hypertension and diabetes mellitus, she was known patient of HP & DM since good number of years. Hence, the complainant is not entitled for any claim amount. The death of the assured was not due to accidental injuries & was due to suffering from HT & DM. Hence, complainant is not entitled for the accident benefit under the policy. Among such other admissions and denials the respondent denied all other allegations made in the complaint and puts the complainant to strict proof of the same & prays for dismissal of the complaint.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

 Both have admits sworn to evidence affidavit and relied on documents. Apart from argument both have relied on citations. Heard. Perused the records.

Finding on points is as under.

1. Affirmatively 
2. Accordingly  
3. As per order

Reasons

Points 1 and 2

5.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact,  the complainant’s wife was insured under the policy issued by respondent.2 and to the date of death the said policy was in force.

6.     Now the question to be determined is, whether the complainant proves the assured succumbed to injuries met with the accident on 15.04.2012 &  respondents proves the deceased assured suppressed material facts at the time proposal & whether repudiation of the claim by the respondent amounts to deficiency in service, if so, for what relief the complainant is entitled.

7.     On perusal of documents Ex.C5/Ex.R16 i.e. certificate of hospital treatment dt.18.04.2012 at column no.4 nature of complaint while admitting to the hospital on 15.04.2012 it is mentioned loss of consciousness & duration of the complaint in the same column has reported, from one day & in the same document at Item no.5(a) what was the exact history reported by patient at the time admitting, it is mentioned, acute respiratory distress from 14.04.2012. In the Ex.R5 medical attendance certificate at Item no.4 what was the exact cause of death primary case it is mentioned, cerebral vascular accident. Secondary cause in the same column diabetic mellitus, hypertension. By looking into the entries made in Ex.R15 and 16 it is evident that the deceased assured was brought to the hospital for treatment on 15.04.2012 in unconscious status due to cerebro vascular accident. Further perusal of Ex.R16 in the column.5(a) it is mentioned acute respiratory disorder from 14.04.2012. By this it is further rectified that she has become unconscious not due to fell as alleged by the complainant but she was suffering from respiratory disorder from the previous day i.e. from 14.04.2012. Under those circumstances it is very much clear that the assured has not met with any accident and succumbed due to fall as alleged. The respondent in support of their contention i.e. this being an earlier claim within a short span of commencement of policy they have investigated the matter and produced document Ex.R24 and 25 issued by Chaitanya Multispecialty Hospital doctor where the assured had admitted and taken treatment. In the said certificates also nowhere the doctor has mentioned the assured had came to the hospital with a complaint of accident fallen in the bathroom, but whereas the doctor in his certificate Ex.R24 it is specifically mentioned, admitted to hospital on 15.04.2012 with multiple organ failure secondary to cerebro vascular accident and secondary reason hypertension and diabetes mellitus and further mentioned she was known patient of hypertension and diabetes mellitus since good number of years. Even in the death certificate issued by the said hospital nowhere mentioned with regard to the fall of the deceased. Even in the death certificate it is also mentioned the same cause as mentioned in Ex.R24. The LC for respondent specifically invite the attention of this Forum to the contents of Ex.R24 and 25 and submits this being non medical policy and the policy has been issued on the statement given by the proposer at the time proposal the respondent issued the policy on good faith but as per the certificate she was suffering from T2 DM & Hypertension as such she violates the terms and conditions and the complainant is not entitled for the benefits under the policy. Further also submits there is no history of fall as alleged by the complainant as such the complainant is not entitled either for the benefits under the policy or for the double accident policy. While LC for complainant argued that at the time proposal his wife health status was good and she was not suffering from any ill health which devaluates the claim. The agent of the respondent on proper enquiry made with regard to the status of the health the respondent has issued the policy as such at this stage the respondent cannot raise objections and disclaim. The respondent except producing documents Ex.R24 and 25 did not adduced the evidence of doctors who have issued certificate in corroboration to their contention that at the time of and prior to the date of proposal the assured was suffering from those diseases. The complainant in support of his case relied on 2014 (4) CPR 711 NC- M/s.ICICI Prudential insurance co. vs. Ms.Veena Sharma and another - insurance life policy- repudiation of death claim on the grounds of suppression of pre existence. Wherein claim of the complainant was allowed on the ground that respondent had merely produced discharge card of hospital which was not proved nor evidence of treating doctor led. Also relied on 2014 (3) CPR 172 NC- Bajaj Allianz life insurance co. ltd., Vs. Rajkumar, wherein it is held non disclosure of latent disease does not amount to suppression of material fact. Relying on these case laws prays for allow the petition. While the respondents in support of their case relied on RP-4468/12 NC – LIC of India Vs. Smt.Mamata Rani & Anr., with regard to the accident benefit. Wherein it is held, additional accident benefit equal to the sum assured is payable only if the life assured dies because of bodily injury resulting solely and directly from an accident by outward, violent and visible means otherwise accident benefit is not payable. With regard to the DM & HT from long sufferings the respondent relies on RP-2406/12 NC- LIC of India vs. Smt.Shahida Katun and another. With regard to the suppression of facts complainant relied on RP-4822/12 Pg.92 NC- LIC of India Vs. Archana Dayanad Wakade. Where it is held claim repudiation on the grounds of suppression of material fact held in an earlier claim the claimant cannot take advantage of Sec.45 of Insurance Act, claim is rejected. Also relied with regard to prolong history of diabetes mellitus and HT relied on RP-3223/10 NC – LIC of India vs. Ms.Mamta, held- concealment of previous ailments of DM & HT not entitled for claim , repudiation proper & prays for dismissal of the complaint.

8.     Taking into consideration of the evidence and case laws relied by both the parties as discussion made by this Forum supra it is evident that the deceased died due to cerebro vascular accident and secondary cause diabetic mellitus and hypertension. But respondent failed to establish that the assured at the time proposal and prior to sign the proposal was suffering from the said disease and she was  under treatment. Hence, the respondent failed to establish suppression of material facts with regard to the health status and illness suffering by the assured both prior to and at the time of proposal. However the respondent has successfully established the death is not due to the external accident injuries sustained by the assured and complainant failed to establish his case of his wife met with the accident on 15.04.2012 while in the bathroom. Hence, the complainant is not entitled for accidental benefits under the policy. Since the respondent has failed to establish pre existing disease and sufferings by the deceased the complainant is entitled for the benefit under the policy to the sum assured amount with compensation and cost of the proceedings.

9.     In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmatively and accordingly.

10.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

        Complaint is partly allowed. While the double accident benefit is rejected.

        The respondents 1 and 2 jointly and severally to pay the sum assured under the policy along with interest @9% P.A. from the date of this order along with Rs.2,000/- towards compensation and Rs.1,000/- towards cost of the proceedings within 30 days from the date of receipt of copy of this order. Failing to comply the same, the said amount shall carry interest @9% P.A. from thereon till realization.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31^st day of July 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR