This case is coming for final hearing on 24-09-2014 in the presence of Sri Adari Appa Rao, Advocate for Complainant and M/s.Sri K.M.Gupta, Sri B.Karthik, Sri K.Vamsi Krishna, Advocates for Opposite parties and having stood over till this date, the Forum delivered the following.                                                                                                                                                                                                                                                                                                                                                                                           

: O R D E R :

(As per Sri V.V.L.Narasimha Rao, Honourable Member on behalf of the Bench)

1. The complainant filed the present Complaint under Sec.12 of C.P.Act on 4.3.2013 against the Opposite Parties 1 & 2 and requested the forum (1) direct the Opposite Parties to pay an amount of Rs.2,00,000/- insurance claim amount along with 24% interest from date of claiming the amount i.e. from 10.02.2011 till realization (2) to pay compensation of Rs.20,000/- for causing mental agony and pain and suffering (3) to award costs and any other relief or reliefs as this Forum deems fit and proper.

2. The brief averments are as follows: The Complainant’s husband Sri P.Nooka Naidu during his life time took a Reliance Endowment Plan Life Insurance Policy bearing no.17387572 for an amount of Rs.2,00,000/- for an amount of Rs.2,00,000/- from the Opposite Parties which will be commenced from 7.7.2010 to 7.7.2025.  While so all of a sudden on 4.8.2010 her husband suffered with a stomach pain and was admitted in Primary Health Centre at Tummapala. The Doctor gave treatment to him and prescribed medicines.  Even after consuming also as there was no relief her husband again shifted to Primary Health Centre on 4.8.2010 and while under treatment and consuming medicines he died on 28.082010. With regarding to the Insurance Policy, the complainant came to know about the Policy on 10.02.2011 while searching for some other documents. She has intimated the death of her husband to the Opposite Parties on 10.02.2011 and claimed for the insurance claim. She has also submitted a letter to the 2^nd Opposite Party on 21.05.2011 through courier receipt along with original bond, death certificate and original claim form. Thereafter on 3.6.2011 she received a letter from the Opposite Parties stating that her request dt.27.5.2011 has been registered and it will be settled within 30 days from 27.05.2011.

3. Thereafter the employees of the Opposite Parties came to the Complainant’s village and investigated about the death of the Complainant’s husband who was insured vide Policy No.17387572. After investigation there was no response from the Opposite Parties even after repeated requests. On 7.3.2012 she received a letter from the Opposite Parties stating that the relevant medical reports and medical records have to be furnished for clearance of the insurance claim. On 2.5.2012 Opposite Parties sent a letter to the Complainant stating that the said claim was sent to the claim department at Chennai for pursuing. On 26.5.2012 the Complainant received a Repudiation Letter from the 1^st Opposite Party stating that as the Complainant’s husband suffered with Renal disease since June 2010 and was hospitalized and basing upon terms of policy the claim of the Complainant was repudiated. Hence as there was no other option, she filed the present complaint seeking reliefs.

4. Sri K.Vijaya Chandran as Authorised Signatory of Opposite Parties filed counter for 2^nd Opposite Party and same was adopted by 1^st Opposite Party. The brief averments of the counter of Opposite Parties are as follows. The Life Assured Sri P.Nookunaidu i.e. the husband of the Complainant has obtained the policy No.17387572 by suppressing the actual facts i.e. his medical records and medical treatment as he has suffered from acute renal and heart disease. So basing upon this point the Complainant cannot claim the claim amount. The term of the Policy is for 21 years and the sum assured for the policy is Rs.2,00,000/-. While obtaining the policy the assured/complainant’s husband answered negatively to all the questions mentioned in the Proposal form stating that he has not suffered with illness or disorder or any disability of the injury during the past 5 years not he has suffered with any problem related to the urinary tract or kidneys or blood disorders (including anemia) either mental or psychiatric conditions. Her husband obtained the policy on 7.7.2010 and after 52 days from obtaining the Policy he died on 28.8.2010. At the time of investigation by the Investigator of the Opposite Parties, it was found that the complainant’s husband was suffering with Renal disease. The ultra sound scan report dt. 30.06.2010 confirms that both kidneys of the Life Assured have altered echotexture renal parenchymal disease with bilateral pleural effusion with ascites. Chest X-Ray dated 26.06.2010 confirms that Life Assured has increased cardiothoracic ratio with prominent pulmonary arteries.  The documents furnished by the Opposite Parties confirms the facts mentioned in the counter.

5. The Opposite Parties requested the complainant on 21.02.2011 to submit the claim form-B i.e. the Certificate of last illness signed and stamped by the doctor attended the last illness of the deceased life assured. Afterreceiving the said intimation complainant did not submitted the medical reports. The policy terms and conditions states that if any statements made by the insured/complainant’s husband are untrue and inaccurate, the company may cancel the contract and all the premiums paid will be forfeited. Along with the counter the opposite parties discussed about two case laws 2001 SCC (160) between Life Insurance Corporation & Others Vs. Asha Goel ; 2003 (I) SC 410 between Export Credit Guarantee Corpn of India Ltd. Vs Garg Sons stating that the Life insurance contract are based on principal of uberrimae fides and in case of any concealment of any material information and false information and the said fact was found false or incorrect and the claim may be repudiated. Hence as the Complainant’s husband has suppressed the actual facts of his previous medical records the complaint is liable to be dismissed with costs. Along with the counter the Opposite Parties has filed eight documents in support of their version.

6. Observing the pleading of the both sides the Forum has framed the following points for consideration.

   1. Whether there is any deficiency of service on the part of Opposite parties ;

   2. To what relief.

7. The complainant filed Evidence Affidavit reiterating the contentions of the complaint and on behalf of the Complainant Ex.A1 to A11 are marked. On behalf of the Opposite Parties 1 & 2 Sri B.Srinivasa Rao who is working as Territory Manager of Reliance Life Insurance Company filed Evidence Affidavit narrating about the entire facts mentioned in the counter. Though the Opposite Parties filed eight documents as there is no representation on behalf of the said eight documents were not marked and considered as un-marked documents. Even after the opportunity was given for both sides for filing Written Arguments they have not filed Written Argument except submitting their oral arguments.

8. Point No.1:  The present complaint is filed against the Opposite Parties 1 & 2 claim for the insurance claim amount vide policy No.17387522 for the sum assured Rs.2,00,000/-. As the Opposite Parties is repudiated the claim of the complainant, she is seeking reliefs through this Forum. The Opposite Parties are stating that, as there is suppression of the fact by the Complainant’s husband with regarding to his medical treatment and medical records while taking the policy on 7.7.2010 which will be in force till 21 years and as per the term mentioned in the proposal form that if the material record submitted by the complainant if any statements made by the insured/complainant’s husband are untrue. The company may cancel the contract and all the premiums paid will be forfeited. So as the complainant’s husband has intentionally suppressed the facts while taking the insurance policy from Opposite Parties and that too he has died after 52 days from obtaining policy on 28.8.2010 and observing the medical record of the Vijaya Medical & Scanning Centre at Anakapalli along with the investigation, it confirms that the Complainant’s husband suffered with Renal failure and cardiac problem. The complainant is not entitled for the insurance claim.

9. In para No.3 of the Written statement of the Opposite Parties, Opposite parties stated that the proposed Life Insured i.e. Complainant’s husband answered negatively for the questions (NO) and the medical records reveals that he has suffered with illness and renal failure along with cardiac problem. The Doc.No.1 filed by the Opposite Parties reveals that the complainant is the nominee and the policy obtained by the Complainant’s husband was Reliance Endowment Plan for sum assured R.2,00,000/-. In Column No.24 to 34 of the proposal form No.3492544 dt. 7.7.2010 it reveals that the complainant’s husband has answered negatively marking tick (ü) mark for all the questions mentioned in Col.No.16, 24 to 34. In that 13 questions it was questioned to the Complainant’s husband that (1) whether he has suffered with any illness, family history of the complainant’s husband (Life to be assured), whether he is habituated of smoking, alcohol, drugs, suffering with any illness or disorder or disability of any injury for the past 5 years which has required any form of medical or specialized examination (including chest x-rays, gynecological investigations, pap, smear or blood tests). (2) Whether suffered with aids or tested positive for HIV, suffered with congenital/birth defects, pain or problems in the back, spine, muscles or joint, arthritis,, severe injury or other physical disability. Ex.A1 is the policy copy in which it reveals that the complainant is a nominee as wife of Sri P.Nookunaidu. As per Ex.A2 dt.10.02.2011 she submitted request letter to the Opposite Party No.1 to settle the policy claim for the policy obtained by her husband. Ex.A3 reveals that her husband died on 28.8.2010. The Document No.1 i.e. Proposal Form of reliance Life Insurance Policy No.2592544 discloses that the Policy was obtained from 7.7.2010 and will be in force till 21 years. Ex.A4 is the only medical prescription given by the PHC, dt. 4.8.2010. Ex.A5 is the letter dt. 3.6.2011 submitted by the 1^st Opposite Party to the Complainant stating that the settlement of the policy will be done within 30 working days. As per Ex.A7 the Claims Manager of Reliance Life Insurance Co. Ltd., located at Chennai served a letter to the Complainant dt. 7.3.2012 stating that the claim form-B copy of medical report including death summary/discharge summary and copies of previous medical records has to be furnished for settling the insurance claim vide Policy No.17387572 on receipt of the said documents the claim will be settled within 30 days and the decision will be intimated to the complainant. The letter dt. 23.04.2012 i.e. Document No.4 filed by the Opposite Parties along with counter reveals that, the complainant has served a letter to the Reliance Life Insurance Company stating that the complainant’s husband used to suffer with diabetic and since 2008 he used to suffer with the said diseases. He got treatment at Primary Health Centre, Anakapalle and “all the medical records are misplaced”. Doc.No.3 i.e the Investigation report submitted by the Opposite Parties investigator after receiving the claim form of the complainant reveals that the Complainant’s husband was suffering with diabetics and kidney problem, 2 months prior to his death. The Medical report of the Vijaya Medical Scanning Centre dt. 30.06.2010 states that the complainant’s husband is suffering with Renal failure and in the column of impression “it was stated as “both kidneys altered echotecture-renl parenchymail disease with Bilateral Pleural effusion with ascitis”. In the proposal form No.3492554 dt. 7.7.2010 for obtaining the Insurance Policy by the Complainant’s husband. The definition of the Sec.45 of the Insurance Act 1938 is reflected wherein it states that in case of any suppression of fact and it was observed that policy was fraudulently obtained or non-disclosure of any material while taking the policy, it will be against to the terms of the policy.

10. As per the legal maxim aiffrmtis-est-probare means “the person who affirms must prove”. As per case law 2005 (3) ALT 9 decided on 8.4.2004 between Oriental Insurance Co. Ltd., Vs. Ch.Venkatesh, the Hon’ble A.P.State Commission held that the burden of proof lies upon the insurer to prove that the insurer has misrepresented the facts about his health. Here in this case on hand while denying the facts of Complainant, following the principle of the above case law 2005 (3) ALT 9, they filed the documents related to the medical record of Complainant’s husband and the documents reveals that her husband is suffering with renal failure and cardiac disorder prior to taking the insurance policy from Opposite Parties.

11. As per Ex.A8, Complainant stated that her husband has not suffered with any diseases during his life time and suddenly died and it is the confirmed information from her side with true, best knowledge and belief. The document No.4 of Opposite Parties i.e. Letter dt. 23.04.2012 served by the Complainant to Opposite Parties reveals that all the medical records are misplaced. Observing the proposal Form No.3492554 i.e. Doc.No.1 reveals that the Complainant husband has answered negatively for all the questions vide Cl.16, 24 to 34. The investigation report states that Complainant’s husband suffered with diabetic and kidney problem, even the Vijaya Medical and Scanning Centre report furnished by Opposite Party reveals that the Complainant’s husband is suffering with Renal failure as on 30.06.2010. Hence observing the proposal form and investigation report along with Vijaya Medical and Scanning Centre report dt. 30.06.2010, it reveals the Complainant’s husband has obtained the Policy No.173875772 with a fraudulent intention by suppressing his previous medical record and medical treatment.

12. As per the CA No.2776 of 2002 between Satvant Kaur Sadhu Vs. New India Assurance Co. Ltd., the Hon’ble Supreme Court held that the Appellant/Insured is suffering with known diabetic problem since last 16 years and he has suppressed the said fact and obtained the Insurance Policy from the Respondent New India Assurance Company. Thereby he has filed Insurance claim amount from the respondents. The Hon’ble Supreme Court observing Sec.45 of Insurance Act 1938 and observing United India Insurance Co. Ltd. Vs. Mukherjee Corporation, Charter Vs. Doetim’s case, Indian Contract and specific reliefs acts it was held that the appellant was found to be fraudulent and there is no useful purpose would be served by remitting the matter to National Commission for fresh adjudication on merits. Thereby the appeal was dismissed with no Order to costs.

13. Hence observing the Complainant’s husband’s medical record i.e. Doc-2 Vijaya Medical and Scanning Centre report dt.30.06.2010 along with Doc-3 Investigation Report and the proposal form dt. 7.7.2010 for obtaining Policy No.17387522 along with the Hon’bleSupreme Court Judgement in C.A.No.2776/2002 discussed above (in para 12) we are of conclusive opinion that the complainant’s husband has obtained Policy No.17387572 on 7.7.2010 with a fraudulent intention by suppressing his earlier medical estimates and record by suppressing the actual facts, so the repudiation of the Insurance claim is legal and there is no deficiency of service on part of OppositeParties. Accordingly this point is answered.

14. In the result the Complaint is dismissed without costs.

    Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 28^th day of October, 2014.

           Sd/-                                                                    Sd/-

    President (FAC)                                                         Member           

                                                                       District Consumer Forum-I

                                                                                Visakhapatnam

     

    APPENDIX OF EVIDENCE

     

    Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties: -NIL-

       Sd/-                                                                             Sd/-

President (FAC)                                                                   Member           

                                                                             District Consumer Forum-I

                                                                                      Visakhapatnam