BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 29^th February 2016        

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 169/2015    

Complainant/s:               Veerabhadra s/o.Shivarudrappa Jinnur, R/o.Bagadageri, Tq.Kalaghatagi, Dist. Dharwad 581196.

                                        (By Sri.M.B.Jogarishettar, Adv.)

v/s

Respondent/s:                 The Life Insurance Corporation of India, By it’s Divisional Manager, Divisional Office, Jeevan Prakash, College Road, Dharwad 580001.

                                        (By Sri.M.G.Gadgoli, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to pay sum assured amount of the policy Rs.1,87,500/- with interest @18% along with cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, complainant is the son and nominee of the insured Smt.Mahadevi w/o.Shivarudrappa Jinnur & she had taken life policy from the respondent bearing No.638135861 for the assured amount of Rs.1,87,500/-. Said policy was lapsed for non payment of the premiums due 11/10 & 11/2011 subsequently the said policy was revived after the insured had subjected to medical check up by the medical officer at Dr.K.H.Jitur hospital Hubli on 22.02.2012 & the policy was revived on 29.12.2012 by receiving due premium amount of Rs.18,014/- with late fee of Rs.1,110/- respondent revived the policy by receiving in all Rs.19,124/-. In the meantime on 23.10.2012 the insured Smt.Mahadevi died. The complainant being the nominee under the policy submits claim to the respondent on 05.02.2013 in a prescribed form by furnishing all necessary documents. Inspite of several requests claim was not settled. Ultimately on 18.11.2013 the complainant sent request letter by RPAD to settle the claim. The said letter was received by the respondent on 19.11.2013. In order to deny the claim the respondent raised false and unreasonable grounds through a letter dtd.11.11.2013 which was received by the complainant on 25.11.2013 alleging that the respondent is learnt the deceased insured was under treatment for diabetes and had been underwent Eco TMT as per the report dt.21.02.2012 as suggested by Dr.Ramesh Babruwad and requested the complainant through above said letter to furnish all the documents with regard to the treatment taken to consider claim of the complainant in earliest. For that the complainant replied on 11.11.2013 denying the above said allegations of treatment taken and shown inability to produce the documents which were called as there was no such documents with the complainant & requested the respondent to settle the claim. Again on 16.01.2014 the complainant sent reminder requesting to settle the claim in earliest. On 22.04.2014 the complainant received letter from the respondent dtd.11.03.2014 stating the revival of the policy is declared void for the reason that the assured had suffered from diabetic and was on regular medication from 20.03.2000 upto 21.02.2012 on which Eco TMT was taken & said the assured had deliberately made misstatement and withheld material information regarding her health at the time of getting the policy revived. The said allegations are false. The assured had never taken any treatment as alleged and not suppressed any material facts at the time of revival. Only based on medical report only policy was revived. In the said repudiation letter the respondent also had intimated the complainant if the complainant is aggrieved by the decision to submit representation to the Zonal Manager. Accordingly made representation, the Zonal Manager also rejected the  representation. Even according to the suggestion of the Zonal Manager, representation was made to Ombudsman at Hyderabad. Accordingly Ombudsman  also denied to revive the decision. Finally the complainant received letter from Ombudsman dt.10.04.2015 rejecting to revive the decision and the same was received by the complainant on 23.04.2015. Hence, non settlement of the claim amounts to deficiency in service and denial of the claim is false and unjustifiable. Aggrieved by the same complainant has filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that the very complaint as brought is false, frivolous, vexatious in all its material particulars as such it is not maintainable either in law or on facts. Further also taken contention and denied the complainant is a consumer and complaint being a consumer dispute, deficiency in service, cause of action and prays for dismissal of the complaint on those grounds also. Further the respondent also taken contention that the Forum has no jurisdiction to adjudicate the matter as it involves complicated question of law and facts which requires voluminous trial and prays for dismissal of the complaint. While the respondent admits issuance of the policy, assured amount and revival of the policy on payment of due premiums with penalty while denied the deficiency in service contending that on valid grounds only the respondent repudiated the claim and justified in repudiating the claim as the assured at the time of proposal as well as at the time of revival of the policy deliberately withheld and suppressed the material facts though the assured was well aware of the fact that prior to the date of proposal she was suffering from diabetic mellitus and had been underwent Eco TMT have not disclosed the same and obtained the policy by falsely answering question-11 (e) and (l)  of the proposal form and made false declaration in the proposal contending that the contract of insurance is uberimmafiede i.e. utmost good faith and in support of those contentions the respondent relied on apex courts judgments and revealed the nature of the contract and obedience of the same by both contracting parties and reveals forbearance to abide the same will amounts to contract to be void and not only void, void abinitio as such having applied the mind based on the documents, reports, the respondent has taken proper decision and repudiated the claim. Even the appellate authority and Ombudsman have given considered opinion with regard to repudiation of the claim as such the respondents have not committed any deficiency in service and prays for dismissal of the complaint with cost.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Both have admits sworn to evidence affidavit. Respondent apart from examining itself adduced one more additional evidence of the doctor. Both have relied on documents and submits argument & relied on citations. Heard. Perused the records.

Finding on points is as under.

1.  Negatively
2. Negatively  
3.  As per order

R E A S O N S

P O I N T S 1 & 2

5.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact,  that the complainant’s mother had been insured under the policy of the respondent and complainant is the nominee. Further it is also not disputed with regard to the fact that the original policy was lapsed due to non payment of the due premiums and subsequently it is revived on payment of premium and cost subjecting the insured for medical check up.

6.     Now the question to be determined is, whether repudiation of the claim amounts to a deficiency in service, if so, for what relief the complainant is entitled.

7.     Since the facts have been revealed in detail which requires no repetition.

8.     By perusal of Ex.R-13 proposal form it reveals the proposal was made on 11.11.2009. Further perusal of Ex.R13 at page.4 the assured at the time of proposal has answered question.11 (a to h) “NO”. While for question -(i) “good” and for question (j) answered as “NO”.

9.     The case of the complainant is that the claim of the complainant is with regard to the revival of the policy issued based on the proposal Ex.R-13. There is no dispute with regard to this fact. While the case of the respondent is that the policy was commenced on 28.11.2009 and the same was lapsed and revived on 29.02.2012. The assured died on 23.10.2012 subsequently the complainant being the nominee submits claim, since the claim being an early claim the respondent as per their norms investigated the same, during that time it is found the assured prior to commencement of the policy and prior to the date of proposal was under treatment for diabetic mellitus and she was under treatment for the same, she had not disclosed the same knowingly well either at the time of proposal or during the time of revival of the policy. Hence, respondent based on proper evidence and medical reports repudiated the claim on valid grounds taking contention that contract commenced from the date of revival of the policy and not from the date of proposal.

10.   In support of repudiation of claim the respondent adduced additional evidence RW-2 by examining the doctor. The RW-2 at the time of evidence produced one documents Ex.R2-1 i.e. investigations and follow up card. The RW2 in his evidence has stated that the insured was his patient and she was visiting him and was taking treatment with him. The perusal of Ex.R-2(1) investigation and follow up card disclose that for the first time before the RW2 the deceased assured approached RW-2 on 02.03.2000 and been diagnosed Type II D.M. Further perusal of Ex.R2 (1) reveals right from 2000 till 2012 the assured was in continuous treatment with RW2.  Further the respondent in support of another claim repudiation grounds i.e. the deceased assured was heart patient and she had been underwent Eco TMT, the respondent relied on Ex.R-12 ECG report. Based on these the respondent asserted justification in repudiating the claim.

11.   While the LC for complainant in reply to the argument of LC for respondent submits his argument contending that those documents viz., Ex.R 2 (1) and Ex.R12 are concocted documents in order to knock of the claim of the complainant stating that those documents do not bears seal and signature of the authority issued. For this the LC for respondent, for those documents signature is not required. But complainant did not produced rebuttal evidence to disprove these documents (Ex.R2(1) & R12)

12.   Even during the cross examination of RW2 by the complainant the LC for complainant put specific suggestion to the RW-2 that what is the meaning of the note on Ex.R-12 NAD. For that RW-2 replies, NAD means No Abnormality Diagnosed, the NAD will be mentioned on the ECG report when the patient was not suffering from any heart ailments. The LC for complainant while & in continuation of argument submits, as per Sec.45 of the insurance Act after lapse of 2 years from the date of commencement of policy illegality or suppression of the material facts during the time of proposal shall not be questioned.  Whereas in the instant case the policy commenced on 28.11.2009 date of revival of the policy shall not be considered and it is not the date of commencement of policy, since this being revival of the policy not a new policy the terms and conditions goes back to the date of commencement of the policy and submits as such repudiation by the respondent is amounts to deficiency in service.

13.   In support of above contentions the LC for complainant relied on 1994 (1) CPR Pg.317- KSCDRC – Smt.S.Vijaya Vs. LIC of India- wherein it is held, repudiation of the claim on the ground that insured made misleading statement at the time of revival of the policy when original policy had been issued more than 2 years before revival is erroneous and deficiency in service. But in the same judgment at page.319 their lordships referred the judgment of Mr.Mithoolal Nayak vs. LIC of India – AIR 1962 SC 814. Whereas in that judgment it is observed- unless the insurer shows that statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy holder and that the policy holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose. The said observation was made with respect to the operating of Sec.45 and is of opinion that the 2^nd part of the Sec.45 is in the nature of a proviso which creates an exception. If this fact is applied to the present case on hand and as per the evidence of RW-2 supported with document Ex.R2(1) it is evident that the deceased insured prior to proposal was suffering from diabetic mellitus and she was taking treatment. Under those circumstances this is an exception to the Sec.45 as observation made by the lordship in the judgment AIR 1962 SC 814 which was referred in the above citation by KSCDRC. Hence relies case not applicable to the case on hand.

14.   The LC for complainant also relied RP-2582/2015 LIC of India and Anr. Vs.Gouramma (NC) dt.11.05.2009. At page.3 of the said judgment their lordships made observation it is not disputed before us that the policy was not repudiated on the grounds that at the time when initial policy was taken, there was any misrepresentation or initial concealment of facts by the deceased. In the present case, two years have elapsed after the issuance of the policy and burden to prove that deceased had concealed the facts was on the insurance company in terms of Sec.45 of LIC Act 1938. As much appreciated in the relied previous judgment by the LC for complainant this relied case is also not helpful to the present complainant.

15.   The complainant also relied on one more citation 2003 (2) CPJ 552 LIC vs. Premilaben Jayantilal Patel. On going through the gist of the cases relied is also not helpful to the instant case.

16.   In reply to the argument of LC for complainant the LC for respondent replied and relied on citations RP 1555/11 Gurumit Kaur @ Meeto & Anr., vs. LIC of India held: in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a material fact. If the proposer has knowledge of such fact he is obliged to disclose it particularly while answering in the proposal form. Needless to emphasize that any inaccurate answer will entitled the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal is material for the purpose of entering into a contract of insurance; RP-3223/10 LIC Vs.Mamata (NC). Note of case law – a policy for 1 lakh was issued on 21.03.2005. LA expired on 28.08.2015 i.e. within 6 months. The death claim was repudiated on 13.04.2006 on the grounds of suppression of diabetic mellitus. evidence in the form of history reported at the time of admission at the time terminal illness stated that LA was suffering from DN since 5 years. NCRDC held that medical papers show that LA had DN and was on insulin, hence was aware of the disease and secondary cause of death is also DM. Thus, it is a clear case of suppression of material facts. By referring these case laws the LC for respondent submits the case relied are very much same of the similar case on hand & submits, repudiation of the claim by the respondent is on valid grounds is not amounts to deficiency in service.

17.   On taking into consideration of evidence on hand and repudiation of the claim the question to be determined is whether there is suppression of material facts and the revival of the policy goes back to the date of proposal and the material facts withheld at the time of proposal after lapse of 2 years from the date of commencement of policy is questionable ? As per relied cases by both the parties and taking into consideration of facts of Sec.45 both 1^st part and 2^nd part as their lordships observed in the relied cases of both the parties it is evident that the insured prior to the proposal was suffering from the DM and she was well aware of the same and she was under treatment as per Ex.R2 (1). Inspite of it she did not disclose at the time of proposal, since this being a revival of the policy the respondent has got every right to question the same as 2^nd part of Sec.45 accrues right of exceptional to the Sec.45 as observation made by their lordships. Hence, repudiation made by the respondent not amounts to deficiency in service as alleged. Hence, complainant not entitled for any claim much less the claim as sought.

18.   The complainant both in the pleadings as well as in the evidence and at the time of argument and even at the time of cross examining the RW2 has taken contention that the medical records are created one in collusion between the respondent and RW-2. The present complaint being a consumer complaint there being no wide scope for go deep into and to investigate the genuinity of the medical documents relied before this Forum in the absence of efforts by the alleging party. This Forum having limited jurisdiction of summary adjudication of the complaints, determines and decides complaints only based on preponderance of evidence on records. Accordingly decides the present complaint. Apart from this the respondent also in its written statement has taken contention that this Forum has no jurisdiction to adjudicate the present case as it involves complicated question of law and facts and requires voluminous trial, if the complainant so wish to challenge the genuinity of the medical documents relied by the respondent and wish to challenge the repudiation of the claim by the respondent with and on such other grounds the complainant can agitate the same somewhere else before any other courts of law, forums, tribunals etc.

19.   As per discussions & findings arrived we inclined to answer issue.1 and 2 in negatively.

20.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

O R D E R

        Complaint is dismissed. No order as to costs. However if the complainant intends to exercise his claim before any court of law or other forums, can agitate the same. In such an event this order and the time taken to adjudicate the present complaint from the date of complaint till the date of disposal will not counts for reckoning the limitation period for such claims.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 29^th day of February 2016)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR