FILED ON: | 09-07-2013 |
ORDER ON: | 05-02-2015 |
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BELLARY
C.C.No.168 of 2013
Present :
(1) Shri. R.Bandachar,
B.Com, LL.B. (Spl) …… President
(in-charge)
(2) Smt Mary Havila,
B.A. …… Member
DATED THIS THE 05th DAY OF FEBRUARY 2015
COMPLAINANT By-Shri D S Badarinath, Advocate, Bellary. //VS/ | Mrs. Sharada, W/o late K E Nagaraj, R/o Srinidhi Nilaya, 2nd cross, New Amaravathi, Opp: P .G. Girls Hostel, Hospet-583 201, now at Bellary. |
RESPONDENT By Smt P Ramadevi, Advocate, Bellary. | The Branch Manager, Kotak Mahindra Old Mutual Life Insurance Limited, Office situated at Upstairs, Near Manjunatha Electricals, S P Circle, Bellary-583 103. |
//ORDER//
Per Shri R Bandachar
The complainant filed the complaint against the respondent U/Sec-12 of the Consumer Protection Act 1986.
2. The brief facts of the case are that the complainant’s husband K E Nagaraj was working as Group-D employee in Taluk Social Welfare Office. During his lifetime on 05-06-2012 the said K E Nagaraj had taken Kotak Life Insurance Policy bearing No.02611344 by paying premium amount of Rs.57,474/- for sum assured of Rs.15,00,000/- and the period of the said policy is 26 years. The complainant is nominee under the said policy. The complainant’s husband died on 03-10-2012 due to heart attack. The complainant submitted the claim along with necessary documents before the respondent to settle the death benefits of her husband under the said policy. After receipt of the claim, the respondent’s officers visited the house of the complainant as well as neighbours and recorded their statements. But the respondent repudiated the claim of the complainant without valid grounds which amounts to deficiency in service on his part. Therefore, the complaint.
3. The respondent filed the written version stating that the complaint filed is false, frivolous and vexatious. This Forum has no jurisdiction to entertain the complaint. The life assured had concealed the fact that he was diagnosed with Adenocarcinoma of stomach with super imposed candidiasis on 17-01-2012 i.e. prior to signing the proposal. The proposal for issuance of the policy was signed by the life assured on 21-09-2012. Had the said medical history been disclosed by the life assured the policy would not have been issued. The subject policy was issued on 27-09-2012 and the life assured was reported to have been died on 13-10-2012 i.e. within two years from the date of the policy. The respondent rightly repudiated the claim of the complainant on the ground of concealment of material facts by the deceased life assured. After receiving the claim, the respondent initiated the investigation and during investigation it was revealed from the endoscopy, pathology and biopsy reports dated: 17-01-2012 of Kusturba Hospital that the life assured was suffering from Adenocarcinoma and was hospitalized for the same and intentionally concealed the said fact by the deceased life assured. The contents of para-1 to 4 of the complaint are matter of record. The contents of para-5 to 21 of the complaint are denied. The contract of insurance is based on utmost good faith. There is no deficiency in service on the part of the respondent. Therefore, the complaint be dismissed.
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4. The complainant to prove her case, as her evidence, filed her affidavit and that of one witness, which are marked as P.W.1 & Pw.2 and got marked 05 documents as Ex.P.1 to Ex.P.5. The respondent to prove his case, filed his affidavit, which is marked as R.W.1 and got marked 05 documents as Ex.R.1 to Ex.R.5.
5. The written argument is filed by the respondent and heard the oral arguments on both sides.
6. The points that arise for our consideration are;
Whether the complainant has proved deficiency in
service on the part of the respondent towards her?
2. Whether the complainant is entitled for the reliefs
prayed for in the complaint?
What order?
7. The findings on the above points are as under.
Point No.1: In the affirmative. Point No.2: Partly in the affirmative.
Point No.3: As per final order.
// R E A S O N S //
Point No.1 : -
8. The respondent without disputing the issuance of the life insurance policy in favour of the complainant’s husband K E Nagaraj and its validity as on the date of the death of deceased life assured, repudiated the claim of the complainant to pay the amount assured under the policy on the ground of suppression of material facts regarding the health condition of the deceased life assured while making proposal for insurance policy. It is the case of the respondent that while making proposal for life insurance policy the deceased life assured was diagnosed case of Adenocarcinoma of stomach with super imposed candidiasis on 17-01-2012 i.e. prior to signing the proposal for life insurance policy. It is the further case of the respondent that after receiving the claim, the respondent initiated the investigation and during investigation it was revealed from the endoscopy, pathology and biopsy reports dated: 17-01-2012 of Kusturba Hospital that the life assured was suffering from Adenocarcinoma and was hospitalized for the same and this fact was suppressed by him and therefore, the repudiation of the claim of the complainant by the respondent’s insurance company is in accordance with the terms and conditions of the policy.
9. To prove their contention that the deceased life assured had suppressed the material facts regarding his health condition/disease while making proposal for insurance policy with them, the respondent’s insurance company, relied on medical register issued by Kasturba Hospital, Manipal marked as Ex.R.4. But the respondent has not produced credible evidence that the complainant’s husband was suffering from Adenocarcinoma of stomach with super imposed candidiasis prior to obtaining of the policy and had knowingly failed to disclose the same in the proposal. Mere production of medical register is not enough to prove pre existing disease, as per the decision reported in IV (2014) CPJ 580 (NC) (ICICI Prudential Life Insurance Co. Ltd., Vs. Veena Sharma & another).
10. We have also relied on the decision reported in (2013) CJ 174 (NC) (LIC of India Vs. Priya Sharma and others) wherein it is held that onus to prove that insured was suffering from pre-existing disease is on petitioner – petitioner has not examined any doctor to prove this fact that insured was suffering any pre-existing disease at the time of taking policy – it has not been established by petitioner that insured had any pre-existing disease which would justify repudiation of claim. In the present case, the respondent has not produced evidence of the concerned doctors who issued Ex.R.4. Therefore, on the basis of the principles held in the said decisions, Ex.R.4 cannot be relied on. However, it is mandatory on the part of the respondent’s insurance company to verify/investigate all facts mentioned in the proposal form before issuing of the policy and not thereafterwards. But in the present case, the respondent has not done so. Therefore, the respondent’s insurance company is liable to pay the sum assured under the policy obtained by the complainant’s husband.
11. Further on perusal of Ex.P.1 as well as Ex.R.1, the date of commencement of the policy is 05/06/2012 and next annual premium is due on 05/06/2013. As such the contention of the respondent that the subject policy was issued on 27-09-2012 cannot be accepted. The said 27-09-2012 is the date of first premium certificate.
12. The insurance companies have intentionally and deliberately repudiated the claim of the complainant by wrong technical terminologies. Therefore, due to non-settlement of the claim the complainant was made to suffer all these days. The complainant has to be compensated as per the terms and conditions of the policy. Hence, repudiation made by the respondent’s insurance company itself is deficiency in service for which they are liable to pay compensation. The insurance is a contract of good faith and the insured person takes the insurance policy by keeping faith on the company. But his hopes and dreams are shattered by the attitude of the insurer when the issue of claim arises. The insurance company and the TPA find several ways as to how the repudiation can be made even if it is a genuine one and harass the claimant and make him run from pillar to post which is just unfair and unacceptable on the part of the insurance company. The Consumer Protection Act is a social legislation and there is need to curtail such unfair trade practices of insurance companies and provide proper reliefs to the consumers and the insurance companies should be magnanimous enough and also be generous to award the claims at a single window without any hassle and with full cooperation.
13. Considering all the aspects discussed above, the repudiation of claim of the complainant by the respondent’s insurance company is not just and proper which amounts to deficiency in service on his part. Accordingly, this point is answered in the affirmative.
Point No.2:-
14. As per the policy Ex.P.1 as well as Ex.R.1, the assured amount is Rs.15,00,000/-. As the complainant has proved deficiency in service on the part of the respondent’s insurance company she is entitled for the said amount along with interest, compensation for deficiency in service and cost of the proceedings, which shall be as per the final order. Accordingly, this point is answered partly in the affirmative.
Point No.3:-
15. In view of the discussions made under point No. 1 and 2, we pass the following;
// ORDER //
The complaint filed by the complainant is partly allowed.
The complainant is entitled to recover Rs.15,00,000/- with interest @ 9% p.a. from 09-07-2013 till its realization, from the respondent.
The complainant is entitled to recover Rs.3,000/- towards compensation for deficiency in service, from the respondent.
The complainant is also entitled to recover Rs.2,000/- towards cost of the proceedings, from the respondent.
The respondent is liable to pay the above said amounts to the complainant within two months from the date of this order.
Inform the parties accordingly.
(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court this 05th day of February 2015) |
| (R.BANDACHAR) PRESIDENT. |
| (MARY HAVILA) MEMBER. |
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