Telangana

Khammam

CC/14/2017

Garika Chandrayya, S/o. Nagaiah, Age 46 years, Occu Agriculture, H.No.4-60 old,6-10 new, Lingagudem Village, Penuballi Mandal, Khammam District 507 302, Telangana State - Complainant(s)

Versus

The Branch Manager, Birla Sun Life Insurance Company Limited Vijayawada Branch 803, Benz Circle, - Opp.Party(s)

Sri.Vallala Srinivas/Sri.Akula Srinivas

28 Dec 2018

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT KHAMMAM

 

Dated this, the 17^th day of December,2018.

 

          CORAM:     1. Sri. P. Madhav Raja, _{B.Sc., M.Li.Sc., LL.M.,}– President

2. Sri. R. Kiran Kumar_{, B.Sc., LL.M.} – Member

                              

     

C.C. No.14/2017

Between:

 

Garika Chandrayya, S/o. Nagaiah,

Age: 46 years, Occu: Agriculture,

R/o. H.No.4-60 (old),6-10 (new),

Lingagudem Village, Penuballi Mandal,

Khammam District – 507 302,

Telangana State.  

                                                                                       …Complainant

And

         

1. The Branch Manager,

Birla Sun Life Insurance Company Limited.,

Vijayawada Branch – 803, Benz Circle,

Vijayawada, Krishna District and 2 others.

 

2. The Authorized Signatory,

Birla Sun Life Insurance Company Limited,

G Crop Tech Park, 6^th Floor,

Kasar Wadavali, Ghoodbunder Rao, Thane – 400 601.

 

3. Mr. Thalagadadeevi Srinivasa Rao,

Agent / Advisor Code No.BC3397,​

Birla Sun Life Insurance Company Limited,

Benz Circle, Vijayawada, Krishna District,

Andhra Pradesh.

                                                         

…Opposite parties

 

        This C.C. is coming before us for hearing in the presence of Sri Vallala Srinivas, Akula Srinivas, Advocates for complainant; and of Sri G.Harender Reddy, Advocate for opposite parties No.1 and 2; Notice of Opposite Party No.3 served, called absent; upon perusing the material papers on record; upon hearing arguments and having stood over for consideration, this Forum passed the following:-

 

ORDER

(Per Sri. R. Kiran Kumar, Member)

 

This complaint is filed under section 12(1) of the Consumer Protection Act, 1986 praying to direct the Opposite Parties to pay  Rs.5,00,000/- towards death benefits  along with future interest @12% p.a. from the date of this complaint till realization and costs.

 

2.      The averments made in the complaint are that wife of the complainant had obtained life insurance policy from Birla Sun Life Insurance Co.Ltd. vide policy No.005594839 on 29-05-2012 for assured amount of Rs.5,00,000/- from the opposite parties by paying Rs.7,759.34ps. towards premium amount.  The complainant also submitted that including all expenses she had paid Rs.7,999.10ps  in all.  During the policy in force, the wife of complainant died on 16-07-2012, immediately, the same was informed to the opposite parties.  Thereafter, being the nominee, the complainant approached the opposite party No.1 and submitted claim Form along with necessary documents.  Despite settlement, the authorities of opposite parties have been postponing the matter by simply saying that the matter is still pending before its head office.  Vexed with the same, the complainant issued legal notice on 15-06-2016.  As the opposite parties failed to settle the claim, the complainant filed this complaint.

 

3.      In support of his case the complainant filed the following documents and the same are marked as Exhibits A-1to A3.

Ex.A1: is the copy of policy bearing No.005594839, dt. 29-05-2012.

Ex.A2: is the Photocopy of death certificate of Garika Seethamma, issued by Grama Panchayath, Lingagudem, Penuballi Mandal, dt. 28-07-2012.

Ex.A3: is the Office copy of legal notice, dt. 15-06-2016 along with photocopy of postal receipts (No.3) and photocopy of Acknowledgments (No.3).

 

 

4.      After receipt of notice, the opposite parties No.1 and 2 appeared through their counsels and filed counter.  In their counter, the opposite parties submitted that the present complaint is barred by limitation, therefore, it is liable to be dismissed.  The opposite parties also submitted that the policy was issued on   29-05-2012 and the policy holder died on 16-07-2012, whereas, the claim was repudiated vide letter dt.27-09-2013, accordingly, the cause of action arose either at the time of policy was issued or lastly, when the claim was repudiated.  The opposite parties also submitted that the time for filing of complaint under Consumer Protection Act is within two years and the same was expired on                   27-09-2015, but the present complaint was filed in the year 2017, for which, the opposite parties have quoted the citation of Hon’ble Apex Court in Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd.,and Anr.(2009) CPJ 75 (SC).  The opposite parties No.1 and 2 also stated that the contract of insurance is based on utmost good faith.  The death of life assured was occurred within         2 months 7 days from the date of policy.  Therefore, the opposite parties were conducted investigation according to Section 45 of Insurance Act, which reveals that the life assured suppressed the material fact that she was suffering from TB since 2011, that was prior to issuance of policy, in support of their case, the opposite parties referred the citations of Hon’ble Apex Court and the National Commission in Life Insurance Corporation of India & Ors. Vs. Smt. Asha Goel & Anr. (2001) ACJ 806, United India Insurance Company Ltd., Vs. M.K.J. Corporation 1996 (6) SCC 4281, P.C. Chacko and Anr. Vs. Chairman, Life Insurance Corporation of India and Ors. AIR 2008 SC 424, Satwant Kaur Sandhu Vs. New India Assurance Company Ltd.,(2009) 8 SCC 316, TATA AIG Life Insurance Co. ltd. Vs. Orissa State Co-operative Bank & Anr. (2012) CPJ 310 (NC) and Dineshbhai Chandrana Vs. LIC & Anr. First Appeal No.242/2006, decided on 27-07-2006.  Further the opposite parties also contended that the facts of the present case are highly complicated, as such the complaint cannot be decided in summary procedure.  The life assured had suppressed or concealed the material information with malafied and dishonest intention. While submitting Proposal Form, the life assured had given a declaration that the insurer may cancel and forfeit all the premiums in case of untrue or in-correct statements made in the Proposal Form.  They received the claim intimation on 20-02-2014 by informing that the life assured was died on 16-07-2012 due to Jaundice, being the early claim, they conducted investigation, during the course of investigation, it was revealed that the life assured was suffered from Tuberculosis since 2011, by suppressing the same, obtained policy.  During the investigation, the investigator also obtained reply from the Medical Officer, P.H.C., Lanka Sagar, Khammam District under RTI Act.  According to which, the life assured was diagnosed under T.B. category – I, date of treatment was started from 14-09-2011 till 03-02-2012.  The claim was repudiated on the ground of non-disclosure of Medical condition in the Proposal Form the same was conveyed to the complainant by letter dated 29-05-2014.  The claim was submitted on                  26-02-2014 intimating that the life assured was died on 16-07-2012 i.e. the claim Form was submitted after 2 years of death.  The opposite parties also stated that they repudiated the claim basing on the thorough investigation and conveyed the same through the letter dated 29-05-2014.  Therefore, there is no deficiency of service on their part and prayed to dismiss the complaint with costs.     

 

5.      On behalf of the opposite parties No.1 and 2 the following documents are marked as exhibits B1 to B8.

Ex.B1: is the copy of certificate of incorporation.

Ex.B2: is the copy of proposal form for policy No.005594839

Ex.B3: is the copy of RTI reply from the Medical Officer, PHC, Lankasagar, Khammam District.

Ex.B4: is the copy of Investigation Report.

Ex.B5: is the copy of Medical Certificate, issued by Vijayalaxmi Hospital, Sathupalli.

Ex.B6: is the copy of letter addressed to the complainant dt. 27-09-2013.

Ex.B7: is the copy of reply notice, dt. 01-07-2016.

Ex.B8: is the copy of reply notice, dt. 22-06-2016.

 

6.      Both parties filed Written arguments.

7.      Heard oral arguments from both sides.

8.      In view of the above submissions, now the point that arose for consideration is,

i) Whether the complainant is entitled for the claim?

ii) To what relief?

 

 

Point:-       

It is an undisputed fact that the wife of the complainant had obtained life insurance policy from the opposite parties under Reliance endowment plan (regular) vide policy No.005594839 on 29-05-2012 and also it is not in dispute that the policy holder died on 16-07-2012 and the complainant submitted claim form on 26-02-2014.  The only dispute is with regard to the suppression of material facts relating to past medical history of life assured at the time of submission of Proposal Form and filing of complaint after the period of limitation.  It is the case of the complainant is that prior to issuance of policy, the opposite parties conducted Medical Examinations.  After death of life assured the complainant made many rounds to the office of opposite parties by submitting claim Form along with required documents.  Despite settlement of claim, the opposite parties postponed the matter on one pretext are the other, finally, they issued reply notice on 12-08-2016 in response to the legal notice, dt.24-06-2016 by stating that the life assured was obtained policy by misrepresenting the material facts relating to her health.  Upon which, the complainant filed the present complaint as there was no hope of settlement.  On the other hand the opposite parties contended that the policy was taken by withholding material information in respect of past medical history relating to TB and conveyed their decision of repudiation to the complainant through the letter dt.29-05-2014, upon which, they have taken a plea that the time for filing of present complaint is barred by limitation under Consumer Protection Act.  In fact, they did not file any material except filing of counter.  Even they failed to file the proof of acknowledgement to prove that the information regarding repudiation was carried to the complainant and also failed to file the copy of repudiation letter for perusal of this Forum.  In the absence of any proof, it is deemed that the repudiation was not informed to the complainant in any way.  Therefore, the cause of action is continuous and treated as the filing of present complaint is in time, in this regard we have relied upon the judgment of Hon’ble State Commission of Gujarat in United India Insurance Co. Ltd., Vs. Malkit Singh Dharra Singh Gill, in appeal No.1725 of 2013, II (2016) CPJ 106 (Guj.)  and United India Insurance Co. Ltd. V/s. R. piyarelall import & Export Ltd., 1 (2010) CPJ 22 (NC).  Wherein, the Hon’ble National Commission observed that Limitation time barred – Insurance Claims – Cause of action arises from date of repudiation of claim – complainants claim neither rejected nor accepted.  Cause of action continuous one – complaint not time barred – maintainable.

 

So far as the other contention with regard to the concealment of material facts at the time of proposal is concerned, there is no proof on record that the deceased / life assured had obtained the policy by withholding material information with respect of Tuberculosis. Without placing any cogent / reliable medical evidence, oral submissions are not sustainable.  Even as per exhibit B3 document obtained by the opposite parties from the Medical Officer, Penuballi, wherein “date of examination 19-08-2011, Penuballi, CHC, Lab No.354, ‘Negative’  and also Lab No.43 result ‘Negative’.  Therefore, we cannot come to the conclusion that the policy holder was deliberately suppressed the material information regarding her past medical history. The onus probandi, in cases of suppression of material facts rests heavily party alleging the misrepresentation / suppression namely the insurer, burden of proving that the insured had made false representation and suppressed material facts is undoubtedly under insurer.  In this regard we have relied upon the judgment of Hon’ble National Commission in SBI Life Insurance Co. Ltd., V/s. Baijnath Tanti II (2018) CPJ 95 (NC) wherein, the Hon’ble NCDRC observed that Suppression of pre-existing disease alleged – Not proved – No affidavit of treating doctor filed by petitioner and treatment record has not been proved – Death claim – Repudiation not justified. And also in ICICI Prudential Life Insurance Co. Ltd., Vs. Veena Sharma and Anr. IV (2014) CPJ 480 NC, wherein, the Hon’ble National Commission clearly stated that the onus to prove the contention of suppression was on the insurance company that the policy holder was suffering with pre-existing disease and had knowingly failed to disclose the same.

 

In the light of above judgments and in view of above discussion, the contentions raised by the opposite parties regarding the limitation and repudiation are not sustainable.  Therefore, the point is answered accordingly in favour of complainant.    

 

9.      In the result, the complaint is allowed in part, directing the opposite parties No.1 and 2 to pay Rs5,00,000/- plus vested bonus and term benefits accrued if any to the complainant under policy bearing No.005594839 together with interest @9% per annum from the date of complaint i.e. 22-01-2017.  Further directed to pay Rs.2,000/- towards costs within one month from the date of receipt of this order.  The complaint against opposite party No.3 is dismissed.

(Dictated to the Stenographer, typed and transcribed by her, corrected and pronounced by us in the open Forum, on this the 17^th day of December, 2018.)

 

 

 

                Member                    President

                                                          District Consumer Forum,

Khammam.

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:-

 

For Complainant                                                    For Opposite parties  

       None                                                                          None

DOCUMENTS MARKED:-

 

For Complainant                                                    For Opposite parties

   

Ex.A1:-	is the copy of policy bearing No.005594839, dt. 29-05-2012.	Ex.B1:-	is the copy of certificate of incorporation.
Ex.A2:-	is the Photocopy of death certificate of Garika Seethamma, issued by Grama Panchayath, Lingagudem, Penuballi Mandal, dt. 28-07-2012.	Ex.B2:-	is the copy of proposal form for policy No.005594839
Ex.A3:-	is the Office copy of legal notice, dt. 15-06-2016 along with photocopy of postal receipts (No.3) and photocopy of Acknowledgments (No.3).	Ex.B3:-	is the copy of RTI reply from the Medical Officer, PHC, Lankasagar, Khammam District.
		Ex.B4:-	is the copy of Investigation Report.
		Ex.B5:-	is the copy of Medical Certificate, issued by Vijayalaxmi Hospital, Sathupalli.
		Ex.B6:-	is the copy of letter addressed to the complainant dt. 27-09-2013.
		Ex.B7:-	is the copy of reply notice, dt. 01-07-2016.
		Ex.B8:-	is the copy of reply notice, dt. 22-06-2016.

 

 

 

 

 

Member                          President

                                                          District Consumer Forum,

Khammam.