BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 14/2012.
THIS THE 18th DAY OF JULY 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Smt. Rathnamma W/o. Late Shivaraj, age 31
years, Occ: Household, R/o. Mediknal village, Tq. Lingasugur, Dist: Raichur.
//VERSUS//
OPPOSITE PARTIES :- 1. The Manager, BAJAJ ALLIANZ, Life Insurance Co. Ltd., 4th & 5th Floor, Ashoka Plaza, Corporate Software Park Survey No. 32/3, Nagpur Road, Viman Nagar PUNE- 400 014, Maharastra
2. The Branch Manager, BAJAJ ALLIANZ Life Insurance Company Ltd., Ashwini Complex, Opp: Public Garden Ambedkar Circle, Station Road, Raichur.
CLAIM :- For to direct the Insurance Company to pay sum assured sum of Rs. 5,00,000/- (Rs. Five Lakhs) under the LIC policy with cost and interest.
Date of institution :- 16-02-12.
Notice served :- 19-03-12
Date of disposal :- 18-07-12.
Complainant represented by Sri. C. Pandu, Advocate.
Opposite Nos. 1 & 2 represented by Sri.Vishwanath.S. Pattansetty, Advocate.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by complainant Smt. Rathanamma against the opposite Bajaj Allianz Life Insurance Company Ltd., under section 12 of Consumer Protection Act for to direct the Insurance Company to pay sum assured of Rs. 5,00,000/- (Rs. Five Lakhs) under the LIC policy with cost and interest.
2. The brief facts of the complainant’s case are that, she is the wife of late one Shivaraj and also a nominee under the LIC policy bearing No. 0192237223 dt. 23-11-2010, which was subscribed by her husband Shivaraj at his lifetime for assured sum of Rs. 5,00,000/-. He paid an amount of Rs. 25,000/- as a premium towards the policy. Her husband Shivaraj died on 30-11-2010 at Mediknal village. Thereafter, she being a nominee under the policy filed claim petition before the opposite Insurance Company. But her claim was repudiated on untenable grounds. Hence, this complaint is filed by her for the reliefs as noted in it.
3. Opposite No-1 is head office of opposite No-2. Opposite No-2 is the Branch Office at Raichur. Opposite No-1 filed written version and Opposite No-2 adopted the same written version. The brief facts of their written version are that, deceased Shivaraj was suffering from Lymphoma 4th stage since several years, he took treatment (Chemotherapy). These facts have not been disclosed by Shivaraj in his lifetime in the proposal form intentionally for to get monetary benefit. Death certificate produced by complainant in support of the claim is fake certificate. Investigator of the Insurance Company investigated all the above said facts regarding treatment taken by Shivaraj for non-hodgkin’s Lymphoma 4th stage and took Chemotherapy treatment on 14-09-2010. These facts deliberately not disclosed Insurance Company rightly repudiated her claim. Complainant not came with clean hands, there was no deficiency in service on its part. Accordingly, it prayed for to dismiss the complaint among other grounds.
4. In-view of the facts and circumstances stated above. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, she being the nominee under the LIC policy bearing No. 0192237223 and wife of insured Shivaraj who died on 30-11-2010, thereafter, she filed claim petition along with necessary records, but opposite illegally repudiated her claim on untenable grounds and thereafter also they shown their negligence in settling her claim and thereby both opposites found guilty under deficiency in their services.?
2. Whether complainant is entitled for the relief’s as prayed in her complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In negative
(2) In negative.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 :-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, who is noted as PW-1. Totally five documents Ex.P-1 to Ex.P-5 are marked. On the other hand, affidavit-evidence of Opposite No-1 was filed, who is noted as RW-1. Affidavit-evidence of the investigator of Insurance Company was filed, who is noted as RW-2. Totally documents Ex.R-1 To Ex.R-30 are marked. Written arguments filed. Complainant filed objections to the affidavit-evidence of RW-2.
7. On perusal of the facts pleaded by the parties, their respective affidavit-evidences and documents filed in this case. We have noticed some of the following undisputed facts between the parties.
1. It is undisputed fact that, complainant Nagarathanamma is the wife of late Shivaraj (insured) and also a nominee under the LIC policy bearing No. 0192237223 issued by opposite Insurance Company.
2. It is also undisputed fact that, late Shivaraj at his lifetime subscribed the said LIC policy from Opposite Insurance Company for assured sum of Rs. 5,00,000/-.
3. It is also undisputed fact that, the husband of complainant Shivaraj died and thereafter claim petition filed by complainant before the Opposite Insurance Company.
4. It is undisputed fact that, Shivaraj died while policy was in-force.
5. It is also undisputed fact that, opposite Insurance Company repudiated the claim of complainant.
8. With these undisputed facts between the parties now, we have to appreciate the facts in dispute between the parties by one by one.
9. The first point for our consideration is that, which is the date of commencement of policy and commencement date of the risk, as the learned advocate for complainant is contending that, the risk commences under the said policy from 23-11-10. But the learned advocate for opposite is contending that, the risk commences from 28-11-2010 as noted in LIC policy Ex.P-1.
10. To decide this fact, we have referred material document Ex.P-1 which is LIC policy of Shivaraj. As noted in Insurance policy Ex.P-1, policy commences as shown is 28-11-2010. The date of commencement of risk is shown as 28-11-2010. This policy was issued by the Insurance Company with these particulars and Shivaraj accepted it. Now, the complainant is also placed reliance on the same policy Ex.P-1. In view of the circumstances stated above, the contents of Ex.P-1 with regard to commencement date of the policy is 28-11-2010 and the commencement of the risk date is as 28-11-2010 are correct facts and not as contended by the learned advocate for complainant 23-11-2010 may be the date of the proposal form which cannot be treated as either date of the commencement of the policy or the commencement of the risk. Hence, we have not agreed with the submissions made by the learned advocate for complainant that the risk commences from 23-11-2010, accordingly the said contention is rejected.
11. The material ground among other grounds for to repudiate the claim of complainant is that, late Shivraj has suppressed the material facts regarding his health condition in proposal form by declaring himself that, he was in good health condition even though, he was suffering from Lymphoma 4th stage since so many years with an intention to get monetary benefit out of the policy. Hence Insurance Company investigated the matter in detail, obtained necessary certificate regarding the admission and treatment taken by him and prior to filing proposal form. Insurance Company issued policy Ex.P-1 under good faith, as the Insurance law is fundamentally based on mutual trust. Accordingly, Insurance Company rightly rejected the claim of complainant.
12. The learned advocate for complainant denied all the said allegations made by the opposite, according to complainant, her husband was healthy, there was no complaint of cancer to him. Opposite Insurance Company made this ground only with an intention to repudiate the claim. Hence, it is requested to discard the contention of opposite.
13. The learned advocate for opposite filed written arguments along with following rulings:
(1) 2008 ACJ-456 (SC) P.C. Chacko and another V/s. Chairman LIC of India and others.
(2) 2012 ACJ P-800 Sujata Agarwal V/s. Zonal Manager, LIC of India and others.
(3) 2012(1) CPR P-245 (NC) Smt. Kamoda Devi V/s. LIC of India, through its Branch Manager & Anr.
(4) 2010 CJ.P-195 (NC) Patel Kirtik Kumar Prehladbhai V/s. National Insurance Company Ltd.,
(5) 2010 (4) CPR-P 244 (NC) Daya Kaur V/s. LIC.
(6) 2010 CJ.P-223 (AP) Life Insurance Corporation of India & another V/s. Pindi Anuradha and others.
(7) 2010 CJ.P-309 (HP) Life Insurance Corporation of India & Others V/s. Nirmla Sharma.
(8) 2010 (4) CPR P-212 (Raj) Life Insurance Corporation of India V/s. Vidhyut Kumar Sharma and Anr.
(9) 2010 (1) CPR P- 583 Badruddin Auraishi V/s. The Oriental Insurance Company & Another.
(10) 2010(1) CPR P-(93) Nitin Maheshwari V/s. New India Assurance Company Ltd.,
(11) CDJ Civil Appeal No. 2776/2002 (SC) Satwant Kaur Sandhu V/s. New India Assurance Company Ltd.,
(12) CDJ Civil Appeal No. 803/2008 (SC) Sea Lark Fisheries V/s. United India Insurance Co. & Another.
(13) CDJ Revision Petition No. 1548/2000 (NC) Panni Devi V/s. LIC & Others.
(14) CDJ Appeal No. 242/2006 (NC) Dineshbhai Chandarana V/s. Life Insurance Corporation ‘Yogakshema’ Jeevan Bima Marg & Another.
(15) R.P. No. 211/2009 (NC). Reliance Life Insurance Co. Ltd., & Another V/s. Madhavacharya.
14. The principles of the above said rulings are pertaining to the suppression of material facts regarding the health condition of the insured in proposal form and consequences of it. We have gone through the principles of the said rulings and we have applied our mind, as to whether these principles are applicable to the facts of the present case on hand.
15. Now, it is well settled principles of law is that, in a case where Insurance Company took the ground of defence of suppression of material facts regarding health of the insured, then the burden of proving of it is on the Insurance Company. In the light of this settled principles of law, now, we have to appreciate the affidavit-evidences of RW-1 & RW-2 with documents Ex.R-1 to Ex.R-30 relied by the Insurance Company to see as to whether it discharged its burden or not.
16. The material documents which are required for our appreciation are Ex.R-5 proposal form filled by late Shivaraj at his lifetime. Ex.R-20 is the death claim form, Ex.R-21 & Ex.R-29 are the investigation reports by the Insurance Company through RW-2. Another material document is Ex. R-30, which is a case history along with opinion of the medical doctor of the Karnataka Cancer Therapy & Research Institute Hubli dt. 14-09-2010.
17. On perusal of Ex.R-5 it discloses that, deceased Shivaraj has not disclosed any kind of decease said to have suffering by him at that time. He stated that, he was in good health.
18. Ex.R-30 is case history of Shivaraj maintained by the Karnataka Cancer Therapy & Research Institute Hubli. From the said case history, it is quite clear that, late Shivaraj admitted in the said cancer hospital on 14-09-2010 Diagnosis by various tests confirmed that, he was suffering from T Cell Lymphoma (NOS) 4th stage. This report was obtained by investigator RW-2 of Insurance Company. This report is not under any challenge even though complainant filed objection to the affidavit-evidence of RW-2. The said objections are not sufficient to throughout this report Ex.R-30, hence, non-examination of the said doctor of the said hospital is not a fatal to the case of opposite Insurance Company.
19. As, we have already stated that, proposal form Ex.R-5 dt. 23-11-2010 filed by late Shivaraj, not discloses the suffering of this decease by him. It cannot be said that, the late Shivaraj might have suffered such type of decease in advance stage after filing proposal form Ex.R-5, because, the case history of him Ex.R-30 is prior to the date of proposal form. Hence, it is a fact that, deceased Shivaraj was suffering from cancer of 4th stage at the time of filing his proposal form Ex.R-5. It is his duty of Shivaraj to disclose such serious decease in his proposal form, there might be some negligence on the part of opposite in accepting the proposal form. But the proposal form was accepted by the Insurance Company on mutual trust. Primary duty of the Shivaraj was to disclose the said decease in his proposal form, but he not done it. Keeping in view of the principles of the rulings referred above, and also the principles of rulings noted at Sl.No. 3 & 4 and also the principles in the judgments of the Civil Appeal bearing No. 2776/2002 and in other appeals as noted by the learned advocate for Insurance Company, we are of the view that, late Shivaraj intentionally suppressed the severe decease like cancer at 4th stage in his proposal form.
20. Another material point for our consideration is regarding the date of death of Shivaraj. The date of death of him as per certificate produced by the complainant issued by the Registrar of Birth & Death of Medikanal Village vide Ex.P-2 as on 30-11-2010. However opposite Insurance Company denied the said date of death by producing another death certificate issued by the same authority dt. 24-05-2011 wherein his date of death was shown as on 16-05-2011. By looking into the submissions made by the learned advocate for complainant, as well as, the learned advocate for Insurance Company, it is clear that, proposal form Ex.R-5 dt. 23-11-2010 filed by late Shivaraj (7) days prior to the date of his death and also (2) days prior to the date of commencement of the policy as well as date of commencement of risk as on 28-11-2010 as mentioned in policy Ex.P.1. Hence we are of the clear view that, there is clear suppression of material facts by the late Shivaraj with regard to his health condition with an intention to get monetary benefit ill legally out of the Insurance policy. Hence we are of the clear view that, the suppression of material fact by late Shivaraj regarding his serious health condition was not declared in his proposal form only with an intention to get monetary benefit out of the policy.
21. Much more argued on the point of date of death of Shivaraj in view of two different certificates Ex.R-10 & Ex.R-11 issued by one authority by name Registrar of Birth & Death Certificate of Medikinal Village. The learned advocate for opposite pointed out regarding the opening of Bank Account in the name of Shivaraj after his death.
22. We are of the view that, the Consumer Forum is not a competent authority to decide the actual date of death of Shivaraj and also it is not competent to say which certificate is correct and which certificate is not correct. However, it is very much clear from the above facts and circumstances discussed that, this complainant has not approached this Forum with clean hands. Hence we have not noticed any kind of deficiency in service on the part of opposite Insurance Company in repudiating of the claim of the complainant the repudiation of the claim was in accordance with the terms and conditions of the policy, accordingly we answered Point No-1 in Negative.
POINT NO.2:-
23. In view of our finding on Point No-1, the complainant is not entitled for any one of the reliefs as prayed in her complaint, accordingly this point is answered in Negative.
POINT NO.3:-
24. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant is dismissed
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 18-07-12)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur.
