Per:  Akatha.H.D.  

               JUDGMENT

            The complainant has filed this complaint u/s 12 of the Consumer Protection Act – 1986 against the OP alleging deficiency in service in not settling the claim of the policy amount of Rs.10,00,000/-Hence, prays for relief to settle the policy claim allowance of Rs.10,00,000/- along with compensation of Rs.1,00,000/- towards physical and mental agony and Rs.1,00,000/- towards deficiency of service and Rs.10,000/- towards miscellaneous and litigation expenses.

             Brief averments of the Complaint are as under;

            2.  That the complainant husband had made a policy during his life time in the branch of OP-Company. The details of the policy is the policy number: 10115751 and the total sum assured is Rs.10,00,000/- and it had half yearly premium of Rs.33,933/-. The policy was issued on 22.03.2014. The nominee in the policy is the complainant.

            3.         The complainant further alleged that on 12.08.2014 the complainant husband died due to Heart Attack in Gangavathi. The complainant after getting the knowledge of the policy informed about the policy to the OP and then submitted the policy claim along with the related documents to the OP. The complainant further alleged that on 31.03.2015, the OP had posted a letter to the complainant stating that the policy amount cannot be paid because DLA (Deceased Life Assured) earlier at the time of making policy, the life assured was suffering from diabetes and hypertension. Hence, due to this reason, the policy claim has been rejected.

            4.         The complainant further alleged that the complainant husband was physically and mentally fit and he did not suffer with any of the diseases. The OP instead of settling the claim is giving silly reason and has rejected the policy claim. Hence, the OP has committed deficiency of service and hence filed this complaint praying for settling the policy claim of Rs.10,00,000/- along with compensation of Rs.1,00,000/- towards physical and mental agony and Rs.1,00,000/- towards deficiency of service and Rs.10,000/- for litigation and miscellaneous expenses as prayed above.  

            5.         This Forum after admitting the complaint, a notice was issued to the OP’s and the said notice is served upon him. The OP appear before the Forum and filed Vakalathnama. Inspite of giving sufficient time to the OP, the OP failed to file Written Version and was taken as “Written Version not filed” and the case was posted for complainant’s evidence.  

            6.         On the basis of the above pleadings, the following points that arise for our consideration are:

POINTS

1.  Whether the complainant proves that there is deficiency in service in not settling the Policy amount after the death of her husband?
2. Whether the complainant is entitled for any relief as sought for?

3. What order?

     7.              To prove the case of the complainant, the complainant herself examined as PW1 and she has got marked the documents as per Ex.A.1 to Ex.A.4 and closed their side of evidence. The OP after giving sufficient time did not lead this evidence and hence it was taken as “Evidence Nil” and posted for Argument.

     8.             Heard the Arguments of the counsel and perused the records.  

     9.   Our findings on the above points are as under;

Point No. 1 :   In the Affirmative,

Point No. 2 :  In the Affirmative

                  Point No. 3 :  As per final Order for the following

REASONS

10.  POINT No. 1 and 2:  As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence, documents and arguments.

11.  On perusal of the pleadings, evidence coupled with the documents of respective parties on record. It is the case of the complainant alleging deficiency in service in not settling the claim of the policy amount of Rs.10,00,000/-. There is no dispute regarding that the complainant’s husband during his life time had obtained policies by Name AVIVA DHAN SAMRUDDHI policy with a policy No.10115751 which was issued on 22^nd March, 2014 with a premium of Rs.33,933/- half yearly and the sum assured amount is Rs.10,00,000/-. There is also no dispute that the premium of the policy is not paid on 12.08.2014 the complainant husband died due to Heart Attack in Gangavathi leaving the complainant as a nominee in the policys. Being a beneficiary in the policy, the complainant approached and claimed for assured amount and submitted the claim form and necessary documents. Till today, the OP has not settled the claim. Hence, the complainant alleged deficiency in service.   

12.       To prove the case of the complainant, the PW-1 has reiterated the complainant averments in her Examination of Chief and in support of her case. She has produced the policy document which has been marked as EX A1. It is admitted that this policy was issued by OP after going through the Proposal Form. This policy was issued to the complainant’s husband at the time of making the policy. She has further averred that the policy contained the details of the sum assured and the premium to be paid i.e. EX A1. EX-A1 clearly reveals that this policy is issued in the name of the complainant husband during his life time and the premium was paid and the policy commenced from 22^nd March, 2014. 

13.       As per EX A-3 and EX A-4, the Death Certificate and the Claim Repudiate Form. On perusal of these two Exhibits i.e. EX A3 and EX A4 it clearly reveals that the complainant’s husband died due to Heart Attack in Yashodha Hospital, Gangavathi. It is the Death Certificate issued by Chief Registrar of Births and Deaths. As per EX A4, the claim repudiation letter given by OP, on perusal of it, it is crystal clear that the OP has rejected the claim stating that the DLA was suffering and was under treatment for diabetes and hypertension since many years prior to the proposal and was hospitalized for the related diseases on 05^th February, 2014 prior to the issuance of the policy and this was known to them from investigation. To prove the disease, the OP has not filed any objections/Written Version nor did not lead the evidence from their side and has not produced any cogent evidence. Therefore, the contention which was taken by the OP in their claim repudiation letter is vague and is not justifiable one. 

14.       At the time of issuing the policy, it becomes the duty of the insurance agent to verify and see that the medical examination is done. However, in the personal medical details, it is clear that the DLA has mentioned “No” in the details of the disease given in the Proposal Form. This is clear that he was not suffering from any disease as suggested by OP in his claim repudiation letter.

15.       The Counsel for the complainant has relied on the citation reported in I (2016) CPJ 81 (NC) by one Hon’ble National Consumer Disputes Redressal Commission, New Delhi, (Pyari Devi V/s Life Insurance Corporation of India) It reads as under:

“(ii) Consumer Protection Act, 1986 – Sections 2 (1) (g), 14 (1) (d), 21 (b) – Insurance  (Life)- Death claim – Suppression of material facts alleged – Claim repudiated – Deficiency in service – District Forum allowed complaint – State Commission allowed appeal – Hence revision – Hospital record did not spell a single line or history that deceased was suffering from cough and breathlessness for last two years – OP failed to prove its case that disability was a material non-disclosure – It is just a technical one – Hospital record makes it clear that patient suffered breathlessness after 10 months of taking policy – Imugned order set aside – Order of District Forum restored

Result: Revision Petition is allowed.”

The facts and circumstances of the case in hand and circumstances of the said citation is same and applicable in their case.

The counsel for the complainant has relied on another citation reported in CPJ IV (2011) 6 (SC) P.Venkat Naidu V/s Life Insurance Corporation of India and Another by our Hon’ble Supreme Court of India.

“Consumer Protection Act – 1986, Sections 12 (1) (g), 14 (1) (d), 23 – Insurance (Life) – Suppression of material facts – pre-existing disease – Forum allowed complaint – State Commission dismissed appeal – National Commission allowed revision – Hence special/leave to appeal – Contention, deceased suppressed information relating to his illness – Not Accepted – Respondents did not produce any tangible evidence to prove that deceased withheld information about his hospitalization and treatment – order of National Commission set aside”. 

The facts and circumstances of the case in hand and circumstances of the said citation is same and applicable in their case This lordships have held that the contention deceased suppressed information relating to the illness is not accepted and the respondents did not produce any tangible evidence to prove that DLA has withheld the information about his hospitalization and treatment. Therefore, in the light of principle laid down by this lordships in the aforesaid citation more specifically with respect of suppressed information relating to his illness, it is crystal clear that the DLA has mentioned as “No” in the personal medical details. Therefore, it can be presumed that the complainant’s husband (DLA) was not suffering from the disease and his death was caused due to Heart Attack.

16.       The OP has not filed any Written Version nor did not lead this evidence before this Forum to answer any of the allegations made by the complainant and have not shown any reasons for repudiation of the claim of the complainant. Therefore, it can be presumed that there is deficiency of service in not settling the claim.

17.       From the arguments submitted by the learned counsel, we are of the opinion that the DLA has not given or suppressed information relating to his illness to the OP. Hence, the OP is not supposed to repudiate the claim of the complainant because the onus lies on the OP-Company to establish that the DLA has suppressed material facts regarding his illness. In the absence of such evidence, we found a deficiency of service on the part of OP in not settling the claim. As such the OP is liable to pay the sum assured amount to the complainant. The OP-Company is also liable to pay compensation of Rs.5,000/- for deficiency of service along with Rs.5,000/- for physical and mental agony and Rs.1,500/- for litigation expenses. Hence, in the light of the above observations, we constrained to hold Point No.1 and 2 in the affirmative.      

18.  POINT No.3 :-  In view of the above discussion and findings, we proceed to pass the following;

ORDER

1. The complaint filed by the complainant is hereby partly allowed.

2. OP is directed to pay  sum assured of the policy of Rs.10,00,000/- (Rupees ten lakh) along with Rs.5,000/- (Rupees five thousand) towards deficiency of service and Rs.5,000/- (Rupees five thousand) towards physical and mental agony and Rs.1,500/- (Rupees one thousand five hundred) towards litigation expenses to the complainant within one month from the date of receipt of this order, failing which 12% p.a. interest will be charged from the date of filing of complaint till realization.

3. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by him, typescript, corrected by me and then pronounced in the Open Forum on 27^th day of June, 2016.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant.