BEFORE THE DISTRICT FORUM: KURNOOL

Present: Sri. T.Sundara Ramaiah , B.Com B.L., President

And

Sri. M.Krishna  Reddy , M.Sc., M.Phil., Male Member

Thursday the 20 day of January, 2011

C.C.No 27/10

Between:

J.Nagendra, S/o Late J.Venkatesu,

R/o Kalachatla village, Peapully Mandal, Kurnool District.                  

        ……Complainant

                             -Vs-

1.  The Branch Manager,Life Insurance Corporation of India Ltd.,

    Dhone Branch, H.No.13/145, Gooty Road, Dhone-518222.

2.  The Divisional Manager,Life Insurance Corporation of India Ltd.,

    Divisional Office, H.No.1-55, College Road,Kadapa-516004.         

…OPPOSITE PARTIES

          This complaint is coming on this day for orders in the presence of Sri. M.L.Srinivasa Reddy, Advocate, for complainant, and Sri. I.Anantha Rama Sastry, advocate for opposite parties 1 & 2 and upon perusing the material papers on record, the Forum made the following.

 ORDER

(As Per Sri, T.Sundara Ramaiah, President)

CC No.27/2010

1.     The Compliant is filed under section 11 and 12 of C.P. Act, 1986 praying to direct the Opposite parties to:-

1. Pay assured amount of Rs.50,000/- with all benefits and interest at 12 % p.a. from the date of death of the insured.
2. Award compensation of Rs.20,000/- for causing mental agony and inconvenience suffered by the complainant.
3. Pay costs of Rs. 10,000/- and
4. Pass such other reliefs as the Hon’ble Forum may deem fit and proper in the circumstance of the case.

2.     The case of the complainant in brief is as under: - complainant’s father by name Late J.Venkatesu had taken insurance policy bearing No. 653637216 for Rs. 50,000/-.   The said policy was issued by opposite parties on 15-12-2004.  The complainant is nominee under the policy.   Insured died on 16-3-2009 due to jaundice and diarrhea.   After the death of insured, the complainant submitted the claim form along with relevant documents to the opposite parties, claiming the assured amount.   But the opposite parties repudiated the claim stating that the insured made false representation and with held material information regarding his health condition at the time of getting the policy revived.  The insured did not suppress any information regarding his health condition at the time of revival of the policy he was not at all suffering from any disease on the date of the revival of the policy.  The insured got his policy revive at the insistence of the corporation.  The repudiation of the claim of the complainant is untenable.  There was deficiency of service and negligence on the part of the opposite parties.  Hence the complaint.

3.     Opposite Party No.2 filed written version and the same is adopted by opposite party No.1.  It is stated in the written version of opposite party No.2 that the complaint is not maintainable.  It is admitted that the deceased obtained insurance policy NO.653637216 dated 15-12-2004.  The said policy was lapsed for non payment of premium from December, 2005.  The insured applied for revival of the policy by submitting declaration of good health dated 16-2-2009 and payment of arrears of premium from December 2005 to December 2008.  Basing on the declaration of good health and personal statement of the insured the policy of the insured was revived on 16-2-2009.  The deceased was suffering from lunges disease and he was admitted in Government General Hospital, Kurnool in PULMONARY WARD with the complication of SOB since two years aggravated last 15 days, cough since two years aggravated last 15 days, fever lost 15 days loss of appetite, generalized weakness, unable to walk since two weeks and was addicted to alcohol.   He absconded from the Government General Hospital, Kurnool.  The insured was not keeping good health prior to the date of revival.  The opposite party repudiated the policy on 09-10-2009 as the deceased suppressed material facts regarding his health condition at the time of revival of the policy.  Any miss statement or suppression of material facts of illness prior to the revival of the policy vitiates the contract.  The complainant is not entitled to any relief.  There is no deficiency of service on the part of the opposite parties.  The complainant is liable to be dismissed.

4.     On behalf of the complainant Ex. A1 and A2 are marked and sworn affidavit of the complainant is filed.  On behalf of the opposite parties Ex.B1 to B4 are marked and sworn affidavit of opposite party No.2 is filed. Ex.X1 is marked. 

5.     Both sides filed written arguments.

6.     The points that arise for consideration are

        (i) Whether there is deficiency of service on the part of the opposite parties?

        (ii) Whether the complainant is entitled to the reliefs as prayed for?

        (iii) To what relief?

7.     Points 1&2:- Admittedly late J.Venkatesu father of the complainant took insurance policy bearing NO. 653637216 from OP No2 for Rs.50,000/-.  The policy Ex.B1 is dated 15-12-2004. The said policy was lapsed for non payment of premium from December, 2005.  Admittedly on the declaration of the good health and personal statement of the assured the policy was revived on 16-2-2009.   The insured died on 16-3-2009.  Admittedly after the death of the insured the complainant submitted claim form along with documents to opposite party NO.2 claiming the assured amount.  Opposite party NO.2 repudiated the claim of the complainant under Ex.A1 stating that prier to the date of the revival of the policy the assured was not in good health and that he deliberately made misstatement and with held material information regarding his health at the time of getting the policy revived on 16-2-2009.

8.     The complainant who is the nominee under Ex.B1 policy claims assured sum of Rs.50,000/- along with benefits under the policy.  There is no dispute about the death of the assured Venkatesu.  It is the contentions of the opposite parties that the complainant is not entitled to any relief as the policy was repudiated for suppression of material facts at the time of revival of the policy.    The complainant denied that the assured suppressed the material facts at the time of revival of the policy.  The onus to prove that the insured made false representation and suppressed material facts regarding his health at the time of revival of policy is on the insurer.  In a decision reported in 2005 (5) ALT 28 (CPA) the A.P. State Commission held that “under section 45 of the insurance Act insurer must establish that the matter alleged to have been suppressed is material and that suppression was fraudulently made by the policy holder and that policy holder knew at the time of making the statement that it was false.  Mere inaccuracy or falsity in respect of some recitals in the proposal is not sufficient.  Unless the insurer is able to establish those facts, claim should not be repudiated on the ground of misstatement of facts. 

9.     The opposite parties in support of their contention that the insured suppressed the material facts regarding his health at the time of revival of the policy relied on Ex.B2 and X1.  The questions and the corresponding answers given by the deceased in Ex.B2 personal statement regarding his health are:-

In Ex.X1 case sheet it is noted that one venkatsu s/o Lalappa of Kalachatla village was admitted in Government General Hospital, Kurnool on 14-02-2009 with complications of SOB since two years aggravated last 15 days, cough since two years aggravated last 15 days, fever for last 15 days, loss of appetite, generalized weakness unable to walk since two weeks and was addicted to alcohol and absconded from hospital since 5 p.m on 14-2-2009.

10.    According to complainant he is father was not admitted in Government General Hospital, Kurnool and that the contents of Ex.X1 are not true.  Ex.B1 is the policy bond. In Ex.B1 policy the fathers name of assured Venkatesu is mentioned as Lalappa resident of Kalachatla village.  Ex.X1 is summoned from Government General Hospital, Kurnool.  It is not the case of complainant that there is another person by name Venkatsu S/o Lalappa in their village.  We don’t believe the contention of the complainant that Ex.X1 does not relate to the insured Venkatsu.  Admittedly to prove the contents of Ex.X1 no one is examined by the opposite parties.  They have not chosen to file at least the affidavit of the doctor who made entries in Ex.X1 case sheet regarding the health of the patient.  Mere marking of document is not sufficient.  There is no medical evidence on record to show that the deceased was suffering from lung disease and that he died due to the said lung disease.  There is no mention in the written version of opposite party No.2 that the assured knowingly suppressed the disease from which he was suffering at the time of revival of the policy.  There is no whisper in the affidavit evidence of opposite party No.2 that assured died due to lung related diseases.  Merely because some recitals in Ex.B2 are false, the claim of the complainant cannot be rejected.  It must be established by the insurer that the fact that was suppressed was a material one. In the present case the opposite parties failed to establish that the deceased suppressed the material fact regarding his health at the time of revival of the policy.

11.    It is the case of the complainant that the policy was revived at the instance of opposite parties and that the opposite parties cannot question now the revival of the policy.  Ex.A2 dated 16-01-2009 is the letter addressed to assured by opposite party No.2 requesting the assured to revive lapsed policy by paying the arrears.  The policy was revived on 16-02-2009 shortly after receiving Ex.A2 by the assured.   In a decision reported in 2005 (5) ALT 28 (CPA) it is held that “Where policy is revived at the instance of insurance company under a special drive for revival of lapsed policies inducing the insured to pay amounts and keep the policy alive, no fraudulent intention can be attributed to insured in reviving the policy and insurance claim cannot be repudiated on the ground that he suppressed the information regarding his health condition”.  In the present case also the deceased got his lapsed policy revived at the instance of insurance company.  A special request was made by the corporation under Ex.A2 to revive the policy.   In the light of the observation made above we are of the firm opinion that the deceased had no fraudulent intention to suppress material facts at the time of revival of the policy.  The contention opposite parties that the policy of the deceased was repudiated for suppression of material facts is not justified.   The opposite parties could not establish that the deceased suppressed the material fact knowingly.  The failure on the part of the opposite parties to satisfy the claim of the complainant amounts to deficiency of service.  The complainant who is a nominee under the policy is entitled for the assured sum of Rs.50,000/- with other benefits. 

12.    In the result the complaint is partly allowed directing the opposite parties jointly and severally to pay assured amount of Rs.50,000/- with  benefits to the complainant with  interest at 9% p.a. from date of the repudiation of claim i.e. 9-10-2009 till the date of payment, and also  costs of Rs.500/-.

Dictated to the Typist, transcribed by him, corrected and pronounced by us in the open bench on this the 20^th day of January, 2011.

   Sd/-                                                                     Sd/-

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               Repudiation letter dt.9-10-2009 to the complainant by

                 Opposite party No.2.

Ex.A2.       Policy No.653637216 letter dt. 16-1-2009 issued by OP1

                 revival of policy under review easy scheme.

Ex.X1        Case sheet of Venkatesu, issued by the Government

                 General Hospital, Kurnool.

List of exhibits marked for the opposite parties:

Ex.B1.       Policy bond NO.653637216 of J.Venkatesu.

Ex.B2.       Personal statement regarding health dated 16-2-2009.

Ex.B3.       Assignment of the policy No.653637216 of J.Venkatesu

Dt.16-2-2009.

Ex.B4.       Photo copy of case sheet of Venkatesu, issued by the Government General Hospital, Kurnool.

          Sd/-                                                                         Sd/-

MALE MEMBER                                                            PRESIDENT

// Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties

Copy was made ready on :

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