JUDGMENT

            This is the complaint filed by the complainant u/sec. 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.6,95,000/-.  Hence prays for the relief to settle the policy claim amount of Rs.6,95,000/- along with compensation for physical and mental agony of Rs.1,00,000/-; deficiency in service of Rs.1,00,000/- and Rs.10,000/- for miscellaneous charges and litigation expenses.

             Brief averments of the Complaint are as under;

            2.  That, the complainant’s brother Honnappa S/o: Kanteppa had made a policy during his life time in the branch of OP company. The details of the policy is, the policy number is 0312686318.  The commencement of the policy was issued on 10-03-2014.  The total sum assured of the policy is Rs.6,95,000/- and it had yearly premium of Rs.57,996/- and the said nominee of the policy is the complainant only.

            The complainant further alleged that on 29-05-2014, the complainant’s brother died due to heart attack in Achar Narasapur village.  After getting the knowledge of the policy, the complainant went to the OP branch and then submitted the claim form along with all the necessary documents.

            The complainant further alleged that on dated: 08-10-2014 a letter was sent to the complainant by the OP stating that a policy amount cannot be paid because before the commencement of the policy was issued, your brother i.e., (deceased life assured) was suffering from disease.

            The complainant further alleged that the deceased life assured was having good health and he did not suffer from any disease earlier at the time of issuing the policy.  His brother was an agriculturist and was also doing the business and he had yearly income of Rs.8,00,000/-.  The complainant alleged that the OP instead of settling the claim is giving silly reason and rejected the policy and has committed deficiency in service.  Hence prays for settling the policy claim amount of Rs.6,95,000/- along with compensation of Rs.1,00,000/- towards mental and physical agony and Rs.1,00,000/- towards deficiency in service and Rs.10,000/- towards litigation and miscellaneous expenses as prayed above.  

            3.  This Forum after admitting the complaint, a notice was issued to OP and the said notice is served upon the opponent.  The opponent appeared before the Forum through their counsel and filed vakalatnama and main objections/written version to the main petition.

            4.  The main objections of the Opponent are as under;

            That the main and material allegations made in the complaint all are not true, valid and binding on him and the complainant is put to strict proof of those allegations by documentary evidence.  Such of these allegations which are not specifically traversed therein are ought not to be deserved to have been admitted by this OP.

            The OP further submitted that, all the material allegations made in the above complaint are false and the complaint is not maintainable either on facts or in law against this opponent.  Hence the complaint is liable to be dismissed in limini with costs against this opponent.

            The OP further submitted that, at the outset the present complaint is misconceived mis-constructed contrary to the contract between the parties and therefore untenable in law and deserves to be dismissed.

            The OP further submitted that, this is also the case the POLICY HAS BEEN PROCURED ON A PRE-DECEASED PERSON to make wrongful gain from this opposite party.  The complainant with some other unknown persons has fraudulently obtained the policy from this opposite party on the deceased son who had died prior to availing the policy.  The date of proposal (25/2/2014) and the alleged date of death dated: 29/05/2014 clearly shows that the alleged date of death is within 3 months 6 days from the date of submission of proposal form.  It is to be observed that by paying a mere premium amount of Rs.57,996/- the complainant who has indulged into this fraudulent activity is trying to get the Sum Assured amount of Rs.6,95,000/- along with other prayers in total Rs.9,05,000/- from this opposite party which is a pure case of fraud played upon by the complainant along with his unknown supporters against this opposite party.  The Death Certificate issued by the Chief Medical Officer, Sub-Division Hospital, Gangavathi clearly establishes the fact that Mr. Honappa died on 4/1/2014 only i.e., before submission of proposal form dated 25/2/2014 and not on 29/5/2014.  The extract of the Death Register submitted by the complainant and the extract of the Death Register procured by this opposite party through its Investigation officer clearly contradicts the date of death mentioned in Death Certificate respectively.  Thus in entirely the complainant has approached this Hon’ble Forum to make wrongful gain from this opposite party based on the policy availed by him on his pre-deceased brother.  Based on the above documentary evidence the claim of the complainant was repudiated on the that the Policy has been procured on a pre-deceased life.

            We shall now deal with the complaint parawise as under;

The entire averments of the complaint are all hereby denied as false and baseless and the complainant is put to strict proof of the same.

This opponent humbly submit that after receipt of the death claim from the complainant this opposite party has made various investigations and found that the policy has been procured on a pre-deceased life.  Death Certificate issued by the Chief Medical officer, Government Hospital, Gangavathi clearly establishes the fact that Mr.Honappa died on 4/1/2014 only i.e., before submission of proposal form dated 25/2/2014 and not on 29/5/2014.

Hence looking to the facts of the case coupled with documentary evidence it is amply clear that the complainant has come before the Honble Forum with Unclean Hands.  The instant complaint is not maintainable under the provisions of the CPA as the repudiation of the claim is on valid and justifiable grounds.  The insurance company has taken the decision on repudiation after due applications of its mind to the facts and circumstances of the case and as such repudiation cannot be said to have been taken otherwise than on good faith.

It is submitted that, the various investigation reports, issued with respect to deceased late Honnappa clearly establish that, the policy was obtained by suppressing material facts, and also by fraudulent manner, the policy was obtained only with malafide motive and intention, under those circumstance, the opposite party has rejected the claim, and this act will not amount to any deficiency in service or unfair trade practice, needless to say the complaint deserve to be dismissed.

The complaint filed by the complainant, is frivolous, vexatious and is not maintainable under the law and the complainant intentionally filed frivolous and vexatious complaint against the Opposite Party and the complaint is liable to pay costs to the Opposite Party U/sec. 26 of Consumer Protection Act. 

The prayer clause with all submissions made therein are absolutely wrong and are emphatically denied.  The complainant is not entitled for any relief what so ever and not entitled to claim and recover anything from this answering opponent Insurance Company in the light of what is stated above. Hence, prays for the dismissal of the complaint with exemplary costs.

            5.  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 claim amount after the death of his brother?

2. Whether the respondent proves that the policy has been procured on a pre-deceased person?

3. Whether the complainant further prove that they are entitled for the relief sought in complaint?

4. What order?

6.   To prove the case of the complainant, the complainant himself examined as PW1 and he got marked documents as per Ex.A.1 to Ex.A.6 and closed their side evidence.  The respondent himself examined as RW1 and got examined three witness as RW2 to RW4 through court commissioner and got marked documents as per EX B1 to EX B30 and closed this side of evidence.

7.   Heard the arguments of counsel and perused the records.

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

Point No. 1 :   Negative

Point No. 2 :  Affirmative

Point No. 3 :   In Negative

                  Point No. 4 :  As per final Order for the following

REASONS

9.  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.

10.  On perusal of the pleadings, evidence coupled with the documents of respective parties on record, there is a dispute that the policy has been procured on pre-deceased person. To prove the case of the complainant, the PW1 has reiterated the complainant averments in his examination in Chief and in support of his case he has produced the documents pertaining to the policy bond. He has further averred that of the policy bond i.e. EX A4. EX. A4 clearly reveals that a policy by number 0312686318 in the name of Honnappa on 05.03.2014 and the said policy is commenced on 10.03.2014 for the sum assured of Rs.6,95,000/- with a Regular premium of Rs.57,996.37 is paid and the complainant is the nominee in the above said policy. PW1 has averred and deposed that his brother during his life time this policy was made by him and he has made his brother i.e. the complainant as nominee in the above said policy. The complainant has produced the claim repudiation letter of the respondent i.e. EX A1. The Plaintiff has averred that while rejecting the claim, the respondent has sent a letter on 08.10.2014 stating that the policy claim has been rejected saying that his brother was suffering from the diseases earlier to the commencement of the policy. On perusal of EX A1, it has been clearly mentioned that “taking insurance on a pre-decease life’. Hence, the claim has been repudiated due to misrepresentation of material facts. To substantiate the same, the respondent has produced the Death Certificate, the deceased life assured Honnappa which is marked as per EX B28. Therefore, as per the death certificate issued by Chief Registrar of Births and Deaths as per EX B-28, it is crystal clear that the deceased Honnappa died on 4^th January 2014 and the same which has been certified by the Chief Medical Certificate. It also pertains the signature and seal of the issuing authority of Births and deaths.

Further with respect to EX A2 i.e. Death Certificated produced by the complainant clearly reveals that the date of Honnappa is 29.05.2014, but the said documents (death certificate) issued by the Village Accountant. Whereas, in the cross of the Village Accountant by the respondent, he has deposed that, it is true that he has issued the death certificate dated: 29.05.2014 with its registration number 13. Further, it is true that he did not inform the issuing of death certificate to his Higher Authorities. Further, it is true that during enquiry, it came to know that the Death Certificate issued by him (i.e. Village Accountant) is false one and the concerned Thasildar immediately asked for the suspension/cancellation of the Death Certificate issued by him. Therefore, on perusal of EX A2, the death certificate which has been produced by the complainant is a bogus death certificate. Therefore, it can be presumed that the complainant in order to get the benefits of the policy has produced a false material facts and the policy has been obtained by the complainant. This itself clearly goes to show that the said complainant has suppressed the true material facts.

11.       Further, RW3 i.e. the Doctor of Govt. Hospital has deposed that he has seen the deceased Honnappa on 29.05.2014. He also averred that he had gone to the home of deceased Honnappa to give treatment for Heart Attack and has also insured medical attendance certificate. The said signature is marked as EX B2 (A) and the Certificate of Hospital treatment is marked as EX B2 (B). Further, when EX B5 was shown to RW3 for recognisation of photo, he deposed that he cannot identify the person. It is also admitted by the RW-3 that he has given treatment and has seen deceased Honnappa on 29.05.2014 as contended by the RW-3, but he fails to identify the said person. Therefore, the version of RW-3, when he fails to identify with respect to the photo in EX B5 for whom he has given the treatment is not known to him, believing his version with respect to the deceased Honnappa was alive and he has given treatment for him on 29.05.2014 is not justifiable one.

12.       So also on perusal of evidence of RW-4 who is the Chief Medical Officer of the Govt. Hospital, Gangavathi with respect to the death of Honnappa has averred that on 04.01.2014 at 5.45 AM the deceased Honnappa was expired and the said entry is made in the hospital records. EX B7 itself clearly reveals that the deceased Honnappa is expired on 11.01.2014 at 5.45 AM and this has been stated and duly certified the Chief Medical Officer of the Govt. Hospital, Gangavati. EX B8 to EX B19 clearly reveals that the deceased Honnappa was admitted in the hospital for the treatments of breathlessness on 02.01.2014 and died on 04.01.2014 at 5.45 AM. But to disprove the said entries, in EX B8 to EX B19, the complainant has not produced any other cogent and corroborative evidence except putting suggestion to that they have created the documents and the said suggestions have been categorically denied by the respondent. Under these circumstances an adverse inference can be drawn holding that the complainant purposely suppressed the material facts and obtained a policy as pre-deceased person. Hence, if these factors are taken into consideration definitely it goes with the very root of the complainant case.

13.       During the course of argument counsel for the complainant has furnished and relied the citation reported in 1986-2015 (2) of Consumer 883 (NC). The said facts and circumstances of the case in hand and the facts and circumstances of the said citation are all together different. The counsel for the complainant has also relied upon another citation reported in Gauridevi V/s Max New York Life Insurance Company and others 2013 (3) (LT 441 (HP) the said citation is no way applicable to that said case.

14.       Therefore, the allegation which has been taken by the complainant is vague one and therefore the said allegation set up by the complainant is not justifiable one.

15.        On the contrary, as per the oral evidence coupled with the documentary evidence, the complainant has failed to prove that there was deficiency in service by the respondent in not settling the claim amount and the respondents have proved that the said policy was procured on predeceased person and the said fact has been clearly discloses in EX B7 to EX B19 and EXB 26 the Investigation Report and the said entries in EX B7 to EX B19 have been made with respect No Due Certification of the Chief Medical Officer, Govt. Hospital, Gangavathi which have been already discussed supra.

16.       Hence, in the light of above observation, here complainant has failed to prove the deficiency in service by respondent in not settling the policy claim amount and the respondent has proved that the policy was procured on pre-deceased person. Hence, in the light of above observations we constrained to hold Point No.1 in the Negative and Point No.2 in the Affirmative.

17.  POINT No. 3 :-  In the light of observation made by us on Point No.1 and 2, since the complainant has filed this complaint for the deficiency in service by OP in not settling the policy claim amount. In the light of observations made by us, while answering the Point No.1 in negative and in the light of observations made by us while answering Point No.2 in affirmative, the present complainant are not entitled for relief as prayed for. Accordingly, I constrained to hold Point No.3 in Negative.

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

ORDER

1. The complaint filed by the complainant is hereby dismissed.
2. The complainant is directed to pay the exemplary cost of Rs.25,000/- (Rupees twenty five thousand only) to the respondent along with Rs.3,000/- (Rupees three thousand) fine to be paid to Consumer Legal Aid Account within one month from the date of receipt of this order.  Failing which 12 percent p.a. interest will be charged from the date of filing of this complaint till realization.

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

Dictated to the Stenographer, transcribed, typed by her, typescript, corrected by me and then pronounced in the Open Forum on 5^th day of April 2016.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.