BEFORE THE DISTRICT CONSUMER

       DISPUTES REDRESSAL FORUM, BAGALKOT.

COMPLAINT NO.03/2017

DATE OF FILING: 10/01/2017
 

ORDER DATED: 30^th day of June, 2017

   P r e  s e n t: 

01) Smt.Sharada.K.                                                    President…

     B.A.LL.B. (Spl) 

02) Smt. Sumangala.C.Hadli.                         Lady   Member…

                            B.A (Music)

03) Shri.Shravanakumar.D.Kadi                               Member…

                        M.Com.LL.B.  (Spl)

                V/s

JUDGEMENT DELIVERED BY SMT.SHARADA.K.PRESIDENT

The complainant has filed this Complaint u/s 12 of Consumer Protection Act, 1986 against the Opposite Parties (herein after referred in short as OPs) for Policy claim of Rs.2,00,000/- with interest at 18% p.a. from the date of death i.e. 16.04.2014, compensation of Rs.50,000/- towards financial loss and mental agony, Rs.5,000/- towads legal notice charges, cost of litigation and further orders as his Hon’ble Forum may deem fit and proper in circumstances of the case.

2.    The brief fact of the case are as follows:

The complainant is the wife of the deceased Sri.Shivappa Ningappa Wari and she is permanent resident of Badami. The deceased husband of complainant was an employee in Sri.Veer Pulikeshi Vidyavardhak Samsthe’s, Badami and he was a regular customer of OP No.3 having S.B. Account No.10810310994. He required some amount of loan for his family and OP No.3 also granted and debited a loan of Rs.3,75,000/- on 06.08.2013 under Loan Account No.33181766755 with a condition to insure his life under S.B.I. Life Insurance and obtained his signatures on various papers and told that sum assured is Rs.2,00,000/- and the annual premium is Rs.26,709/- (inclusive of Service Tax and Education Cess) and the same has been paid. The Proposal was also accepted and he was issued a Policy No. bearing No.1BO 05172803 as referred above. The due date for next premium was on 06.08.2014. Unfortunately he died on 16.04.2014 at Badami.

3.      After the death of her husband, the complainant being the nominee applied along with original policy, death certificate and other records for settlement of death claim under the policy. The OP No.1 has repudiated the claim of the complainant on the ground that the deceased Shivappa has not disclosed about his sufferance of cancer at the time of signing the proposal form and has suppressed the material facts. There is no question of non-disclosure of any information or facts by the deceased husband of the complainant. He had no malafide or fraudulent intention whatsoever. Hence, the repudiation of claim is without application of mind and the same is illegal and unlawful. The OP No.3 has filled up the Proposal Form and got the signatures of the Shivappa on some filled and unfilled forms at the time of filling the proposal form in the month of August, 2013. The OP No.2 has failed to process the matter in an orderly manner and OP No.1 has arbitrarily repudiated the claim without appreciation the facts in the proper perspective. The complainant was fully depending on the salary income of her husband and after the untimely and sudden death of her husband, the complainant and her children are facing severe financial problems. For the above reasons, Ops are failed to non-settlement of her claim, complainant got issued legal notice through her Advocate to the Ops on 31.03.2016 and another notice dated: 18.7.2016 calling upon the Ops to pay the proceeds of the policy.  The said notice is served on the OP NO.1 and 3 gave reply stating that the policy particulars are incorrect and the claim is already repudiated.

4.      Finally the complainant approached the Insurance Ombudsman (Karnataka) by her petition dated: 10.08.2016 praying for allowing the death claim of her deceased husband and the Insurance Ombudsman (Karnataka) has disallowed the claim of the complainant by order dated: 29.09.2016 and under letter dated: 08.12.2016 communicated the order to the complainant and the same is received by the complainant on 17.12.2016. Hence, the complainant is constrained to file the present Complaint seeking direction to Ops for Policy claim of Rs.2,00,000/- with interest at 18% p.a. from the date of death i.e. 16.04.2014, compensation of Rs.50,000/- towards financial loss and mental agony, Rs.5,000/- towards legal notice charges, cost of litigation and further orders as his Hon’ble Forum may deem fit and proper in circumstances of the case.

5.      After receipt of the notice, OPs appeared through their counsel and filed Version. OP No.3 adopts OP No.1 and 2 Version.

The Brief facts of the Version of OP No.1 and 2 are as hereunder:

6.      The Ops submits that the Complaint filed by the complainant against the OPs is false, frivolous and vexatious and away from the truths and the same is not maintainable in law or on facts. Hence, the same is fit to be dismissed.

7.      OP No.1 and 2 is at Navi Mumbai and Hubli respectively, but the Complaint is filed before the Hon’ble District Forum, Bagalkot. Hence, the Complaint is not maintainable for want of territorial jurisdiction of the Hon’ble Forum against OP No.1 and 2. Hence, on this ground alone, the Complaint is liable to be dismissed against OP No.1 and 2. Further, it is humbly submitted that the Hon’ble Ombudsman, Bangalore a quasi-judicial body established by Central Government notification under Reddressal of Public Grievance Rules, 1998 has already heard the case and given his award. Hence, the Complaint is hit by Section 11 of Civil Procedure Code under the principle of Res-Judicata. The section reads as “No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court. Thus, the Complaint is not at all maintainable and hence should be dismissed. 

8.      The Ops further submits that and false to say that there is a deficiency in service on the part of the Ops-Insurance Company Ltd., that the prayer clause of the Complaint is denied vehemently. It is humbly submitted that as per the documentary evidence produced on records proves that the DLA was suffering from cancer prior to signing the personal form and hence the claim is repudiated rightly. Hence, the answering Ops are not liable to pay Rs.2,00,000/- towards the death claim with interest at 18% p.a., Rs.50,000/- as compensation, Rs.5,000/- towards legal notice and cost of litigation.

9.     The answering OP craves the leave of this Hon’ble Forum to add, amend and alter the written submissions depending on the necessity and circumstances. It is further submitted that the complainant does not have any right or what so ever to challenge the decision of the Ops because the decision of the Ops was just and legal and no cause of action has arisen for the complainant to file this present Complaint. There is no deficiency in service on the part of the Ops and as such the present Complaint is not maintainable. It is evident that the claim has been repudiated rightly and hence the Complaint is not tenable.

10.    It is further submitted that the complainant is not entitled to any relief and the relief prayed for in the Complaint are unjust, illegal and unfair on the part of the complainant and the present Complaint is frivolous, vexatious and is an abuse of the process of law. In the circumstances, the complainant is not entitled to get any benefit as the Insurance cover was taken by fraud and the Ops are not liable to pay any amount towards death benefit, mental agony, interest, costs etc. Hence, it is humbly prayed that the Hon’ble Forum be pleased to dismiss the Complaint with costs to the company. 

11.      On the basis of the above pleadings, the following points of determinations are as follows:

1. Whether the complainant proves that there is the deficiency in service in not settling the Life Insurance Policy claim as alleged in the Complaint?

2. Whether the OPs prove that the complainant husband has suppressed the material facts of the disease before availing the Policy?

3. Whether the complainant is entitled to the relief as sought for?

4. What order?

12.       To Prove the case of the complainant the complainant herself examined as PW1 and she got marked documents as per EX C1 to C9 and closed their side of evidence. The Ops No.1 and 2 themselves examined as RW1 and got examined witness as per RW2 and got marked documents as EX Annexure-A to Annexure-H and closed their side of evidence.

13.    Heard the arguments of the counsel and perused the records. Our findings on the above Points are as under:

Point No.1:-         In the Negative,

          Point No.2:-         In the affirmative,

        Point No.3:-        In the Negative,

Point No.4:-         As per the final order for following.

-: R E A S O N S :-

          14.    POINT NO.1, 2 and 3:- As these issues are inter-connected each other. Hence they are taken together for common discussion to avoid repetition of facts, evidence documents and arguments.

15.      On perusal of the pleadings, evidence coupled with the documents of respective points on record, it is case of the complainant alleging deficiency in service in settling the claim of the policy assured amount of Rs.2,00,000/-. There is no dispute regarding that the complainant husband Late Shivappa Wari during his life time had obtained a policy, the policy bearing by name S.B.I. Life Insurance Policy No.IBO 05172803, dated: 06.08.2013 for sum assured Rs.2,00,000/-. There is also no dispute that the premium towards the policy is not paid on 06.08.2013, the complainant husband died unexpectedly leaving the complainant as a nominee in the policy. Being a beneficiary in the policy, the complainant approached the claimed for assured amount and submitted the claim form and necessary documents through to Ops. But till today, the Ops so far has not settled the claim. Hence, complainant alleged deficiency in service.

16.  To prove the case of complainant PW1 has reiterated the complainant averments in her examination in Chief and in support of her case she has produced the documents pertains the policy bond, the said policy zerox Bond policy documents clearly reveals that the name of the complainant husband in the policy bond has been entered the details of the policy and its premium. She has further averred that after the death of her husband she submitted the claim form along with necessary documents to OPs through, but the Ops did not settled the claim as perusal Ops Annexure-H, copy of the repudiation letter sent by OP Annexure-H clearly reveals that OP has rejected the claim stating that DLA has suppressed the material facts that he was suffering from cancer prior to the date of commencement of policy i.e. 13.08.2013 on treatment for the same prior to the date of enrollment of the policy, the proposal form and this was known to them from investigation. PW1 has averred and deposed that her husband during his life time at the time of availing the policy was in good health condition and he did not suffered from any disease as alleged by the OPs.

17.       Further, with respect to point No.2 the RW1 who is the OP has deposed as per their specific defence set up in their Written Statement that he was suffering from cancer prior to the date of signing the proposal from which he did not disclose in the proposal from and to substantiate the same, the OP No.2 and 3 has produced copy of the Discharge Card and follow up advice of the Vivekananda General Hospital with admission date as on 06.11.2006 and discharge date as 16.11.2006, the DLA was diagnosed with cancer of Caecum. A copy of the Discharge Card and follow up advice of the Vivekanand General Hospital is appeared as Annexure-D, it is clear that cancer of Caecum. No doubt the complainant was admitted in Vivekanand General Hospital, Hubli i.e. on 06.11.2006 after availing the policy. But, as perusal of the EX P-E, it is clear that he was admitted in hospital for DLA was diagnosed with carcinoma of esophagus involving lower 1/3^rd of esophagus upto gastro-esophagus junction with distant metastatic lesions in liver copy of the CT-Scan of chest pain and contrast report dated: 15.09.2013. DLA had undergone abdominal surgery 4 years back. It is also mentioned that the DLA was a known case of carcinoma of esophagus. The copy of the report given by Karnataka Institute of Medical Science, Hubli with date of admission as 18.09.2013. In the history of illness, it is crystal clear that diagnosed for carcinoma (Cancer) the proposal form IBQH 362328 was dated: 06.08.2013 thus the contention of the complainant that at the time of proposal the DLA was not suffering from cancer is false. The DLA has signed the declaration of good Health and he has not been hospitalized in connection for any ailment or diseases. On perusal of EX R1, it is crystal clear that DLA has said “No” in the medical questionnaire and this proposal form was in the year of 06.08.2013. But, to disprove that said entries in EX R1 to R7, the complainant has not produced any other cogent and corroborative evidence except putting suggestions to that they have repudiated the claim and the aid suggestion have been categorically denied by the Ops. This itself clearly goes to shows that the said complainant husband has not revealed the treatment taken the cancer in the year of 2013 before availing of the policy. Therefore, it can be presumed that the complainant has suppressed the material facts.

18.       Further, EX R6 Dr. Ishwar. R. Hosamani Department of General surgery Unit Chief who has deposited that in the month of September, 2013 on it was diagnoses carcinoma of lower 1/3^rd of esophagus with liver metastasis.          

19.    Past history mentioned undergone abdominal surgery 4 years back again he admitted in the hospital on 18.09.2013 as an in-patient and discharged on 23.09.2013, he was once again admitted in the hospital for 4 days, again admitted 4.4.2014 and discharged 07.04.2014 from Sri.Venkateshwar Surgical and Maternity Hospital, Badami and he died on 16.04.2014 due to the cancer. Therefore, it can be presumed that the complainant husband has suppressed his illness to the Ops-Insurance Company. This itself clearly goes to show that the said DLA was suffering from cancer before availing of the policy. 

20.     Before advertising to the fact of the case, it would be profitable to take note of prudent on the point. In Satwant Kour Sunder V/s New India Assurance Company Ltd. VI (2009) SLT 338 – IV (2009) CPJ 8 (SC), (2009) 8 SCC 316, it has been observed by the Hon’ble Supreme Court that expression “material fact” is to be understood in general terms to mean as any fact which would influence the Judgement of prudent Insurer, in deciding whether to accept the risk or not. If the Proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the Proposal Form any inaccurate answer will entitle the Insurer to repudiate their liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance, which is based on the principle of utmost faith – uberrima fides.

21.      Upon consideration of the evidence, adduced by the parties before it, including the medical records of the deceased insured, for his treatment at Vivekanand General Hospital, Hubli, dated as 06.11.2006 and discharge date as 16.11.2006 the DLA was diagnosed with cancer of caecum. CT Scan of chest pain and contrast report dated: 15.09.2013, the DLA was diagnosed with carcinoma of esophagus involving lower 1/3^rd of esophagus upto gastro-esophageal junction with distant metastatic lesions in liver. KIMS, Hubli report dated: 13.09.2013, the DLA was diagnosed esophagus with liver metastasis and DLA had under gone abdominal surgery 4 years back. Sri Venkateshwar Surgical and Maternity Hospital with 04.04.2014 as dated of admission and 07.04.2014 as date discharge death on 16.04.2014 and keeping in view the provision contained in sections 45 of the Insurance Act, 1938 that since her husband did not furnish exact details of his health, as well as various treatment taken by him prior to obtaining the policy in question, the complainant was not entitled to any relief observing that he was having a huge problem of various hospitals. Merely the complainant husband has told “No” in the health details and he has concealed this fact while filing the Proposal Form and this cannot be used as circumstances by the complainant for getting the benefit against insurance policy, the cumulative effect of the reports, one of the Vivekanand General Hospital, Hubli leave no manner of doubt that complainant did not furnish exact detail of his health as well as various treatment having been received various stages and even prior to the obtaining the policy in question and since the insurance is a contract of good faith, the complainant is not entitled for every claim against the insurance policy of his husband. It is not a case of an unexpected death, but it is case of death due to the problem of suffering from cancer.

22.    Further, the argument by the counsel for the Ops that the DLA has suppressed the material facts, the counsel for the Ops has relied the citations are as hereunder:

           a. Hon’ble Supreme Court in the Civil Appeal No.2776/2002 in Satwant Kumar Sandhu V/s New India Assurance Company Ltd.

           b. Hon’ble Supreme Court in the case of Chackochan V/s LIC of India (2007 X AD (S.C.) 429, Civil Appeal No.5322 of 2007).

          c. Hon’ble National Commission, (LIC of India V/s Kusum Patro)

          d.  Appeal No.242 of 2006 in Dineshbhai Chandarana & others V/s LIC of India in their order dated: 27.07.2010.

          e.   The Hon’ble National Commission in order dated: 10.09.2013 in the case of LIC of India V/s Smt. Shadida Khatoon & others,

         f.  Hon’ble Supreme Court – Sealerk V/s United India Insurance Company Ltd.,

        g.  Hon’ble National Commission – Neelam Gupta V/s Reliance Life Insurance & another (R.P. No.4486 of 2010) Hon’ble National Commission – LIC V/s Mansa Devi II (2003) CPJ 135 (NC).

         h. Hon’ble National Commission, Judgement dated: 19.03.2012 – LIC of India V/s Kusum Patro,

          i.   Hon’ble Supreme Court – LIC V/s Asha Goel, Hon’ble National Commission Judgement dated: 23.08.2012 – LIC of India V/s Mandava Geeta.

          j.  The Hon’ble National Commission in Panni Devi V/s LIC (III (2003) CPJ 15 (NC)

Bearing in the mind, the above stated legal principle, we are of the opinion that in the present case, the insured had failed to disclose fully and truly the material facts relating to his heath condition as also information about his at the time of obtaining the policy in question and therefore, the Insurance Company was justified in repudiation the claim preferred by the complainant. On the contrary, as per the oral evidence coupled with documentary evidence, the complainant has failed to prove the deficiency in service on part of the OP in settling the policy claim amount and the said fact has been clearly discloses in Annexure-A to Annexure-H Vivekanand General Hospital Discharge Summary Report Treatment which have been already discussed supra. Hence, in the light of above observations, the complainant failed to prove the deficiency in service in settling the policy claim amount. Hence, in the light of the above observations, we constrained to hold Point No.1 and 2 in the Negative and Point No.2 in the affirmative.       

          23.  POINT NO.4:  Hence in the result, we proceed to pass the following:

:: ORDER ::

1. This Complaint filed by the complainant is hereby dismissed.

2. No order as to costs.
3. Send a copy of this Order to both parties free of cost.  

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 30^th day of June, 2017)

ANNEXURE

List of documents filed by the complainant

List of Annexure filed by OP No.1 to 3: