This complaint  having come up for final hearing before us on 10.06.2015  on perusal of the material records  and on hearing the  arguments of  Thiru.P.Sambamoorthi, the counsel for the complainant and  Thiru.A.K.Nepolean, the counsel for the opposite party and subsequently having been set  exparte and having stood  before us for consideration, till this day the Forum  passed the following

By President, Thiru..P.G.Rajagopal, B.A.B.L., 

                       This complaint is filed by the complainant u/s 12 of the Consumer Protection Act 1986.       

2) The gist of the  complaint filed  by the complainant  is that her husband took a life insurance policy with the opposite party,  paid the first premium on 26.03.2010 and suddenly died on 15.04.2011.  For the letter sent by the complainant to the opposite party on 27.09.2011 claiming the policy amount under the said policy,  the opposite party sent a letter in English and as that contents of the letter in English were not understood by the complainant she contacted the  lawyer who  sent a reply to that letter.  Though the opposite party had not  furnished the policy condition to the policy holder  except  the receipt  for the payment of the first premiums and the  pages 5,7,and 8 of the policy  only.   The opposite party has repudiated the policy on the ground  that  the deceased policy holder Krishnan suppressed the material facts  regarding his health  as  he was suffering from  diabetes mellitus, Diabetic  Nephropathy, Adenopathy and Peripheral valvular disorder  prior to the submission of his proposal form and hence the complainant is not entitled  to claim the policy amount.  The  deceased policy holder  was not suffering from any of the  said deceased prior to the submission of the proposal form and he suddenly died owing to  his renal failure. Therefore  the repudiation of the policy is not valid and it is deficiency of service of the opposite party.  The complainant therefore prays for an order to direct the opposite party to pay the policy amount of Rs.75,000/- and  also  the sum of  Rs. 3,00,000/- for the compensation of mental agony and hardship caused to the complainant and Rs.5000/- towards cost of the litigation.

3) The gist of the written version filed by the opposite party is that the complaint filed by the complainant does not fall within the definition of the ‘consumer disputes’  under the  Consumer Protection Act as there is neither  any unfair  trade practice adopted by the opposite party nor any deficiency  in service being established  against the opposite party.  The complaint is therefore liable to be dismissed on that  ground  alone.  The deceased policy holder  failed to disclose the material facts  regarding  his  health condition prior to the submission of his proposal form for the policy. To the questions at the coloumn  No.5 and 7 of the proposal form he has given the  answer  in the  negative knowingly suppressing that he was having  the  complaint diabetes mellitus, Diabetic  Nephropathy, Adenopathy and Peripheral valvular disorder.  In view of the so many decisions pronounced by the  National Consumer Disputes Redressal Commission, New Delhi and the   Hon’ble Supreme Court of India, the insurance company  can repudiate  the claim in case of non closure of pre-existing  disease or any material information  relating to policy holder’s  health, since  such suppression  of material facts would  in make the  policy null and void.  Further in the  repudiation letter dated  04.08.2011 the opposite party had  clearly stated  that in  case  the complainant  required  any further clarification on the claim decision  she should  contact  the opposite party within 21  days  and in the absence of any communication   from the complainant within 21 days  of  receipt of the letter, it shall be deemed that the said decision  is agreed by the complainant.  Therefore  the complainant is estopped by raising the complaint  at the belated stage.   There is no deficiency of service on the part of the opposite party in repudiating the policy of the deceased policy holder.  Hence the complaint is liable to be dismissed.

4)  The complainant  has filed her proof affidavit  reiterating  all the averments made in her complaint and filed  8 documents  which are marked as Ex.A.1 to  Ex.A.8.  The opposite party though filed his written version has failed to file his proof affidavit, despite several  adjournments granted by this Forum and  finally he had been set exparte on  29.10.2014.  Written arguments is also  submitted  by the  complainant.

5)   The points for Determination are:

                     1) Whether there is  any deficiency of service on the part of the opposite party?

                     2) Whether the complainant is entitled to any relief? If so to what relief?

6) POINT NO.1:   Ex.A.1 is the letter dated 19.04.2011 sent by the complainant to the opposite party  claiming the policy amount. Ex.A.2 is the letter of repudiation  dated 04.08.2015 sent by the opposite party to the complainant.   Ex.A.3 is the notice issued by the complainant’s lawyer to the opposite parties.  Ex.A.4 is the reply sent by the  first opposite party  to the complainant’s lawyer.   Ex.A.5 is the  returned postal envelope sent by the  complainant’s lawyer to the  2^nd opposite party. Ex.A.6 is the  xerox copy of the  cheque for the  amount of  Rs.8676.13 sent  by the  opposite party to the complainant.   Ex.A.7 is the death certificate of the complainant’s husband  the deceased  policy holder.  Ex.A.8 is the legal heir certificate.

 7)  The main contention of the complainant is that her husband who  took the policy  No. U161231682 with the opposite party  paid his first premium on 26.03.2010 and suddenly  died on 15.04.2011 and the opposite party has wantonly and without  any justification has  repudiated her  claim under the policy of her deceased husband and it is sheer deficiency of service on the part of the opposite party. The main contention of the opposite party is that on  investigation it is found out Thiru.Krishnan,  the deceased  policy  holder and the husband of the complainant had  been suffering from  diabetes mellitus, Diabetic  Nephropathy, Adenopathy and Peripheral valvular disorder  disease   before the issuance of the policy and the said  ailments of the policy holder was deliberately suppressed by him in the proposal form as he  has falsely  given  the answers in the  negative  for the questions  raised  under coloumn 5  and 7 of the proposal form.  The opposite party  though has  chosen to file a detailed written version  quoting so many decisions of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi  as well as the  Hon’ble Supreme Court of  India has  failed to file his  proof affidavit in  proof of his defence, despite several adjournments  granted by this Forum.  Further in the written version though averred that  “the documents  annexure No.1  to 4 described as  “Annexure  OP-1 to Annexure OP-4 series”, they are not  at all  filed  with the written version. Therefore,  the failure  on the part of the opposite party to file his proof affidavit in proof of  his defence taken in the  written version itself  goes to show that he has  got no valid defence in this  case.  Mere pleadings in the written version could not be taken to be the proof  unless  it is corroborated  by the  affidavit of the opposite party.  Further all the decisions  cited in the written version establish  the  proposition  that if any material facts  is  suppressed as regard the health condition of the policy holder or  if the  policy holder has failed to disclose  any material  information regarding his health at the time of submitting his proposal form, the policy  issued  in pursuance of  the said proposal form shall be null and void.  The said proposition  is not at all disputed by any one. But the question in this case is  whether the deceased policy holder suppressed any material facts or  information relating to his health condition at the  time of filing his proposal form to the opposite party.  The allegation  of the  opposite party that the  deceased policy holder was  suffering from diabetes mellitus, Diabetic  Nephropathy, Adenopathy and Peripheral valvular disorder  even prior  to the submission of his proposal form is not at all proved by him.  There is  every likelihood  that he could have developed  such urinary  and diabetic problem even subsequent to the filing of the proposal form.

8) The learned counsel for the complainant has submitted the decision of the Hon’bleMadras High Court reported in AIR1965 Madras 357 in which it is held that “The insurer under the Indian Law, as amended, has no right to avoid the contract  by merely making out some inaccuracy or falsity in the respect of some of the recitals or items in the proposal for insurance, or even in the report of the Medical Officer or any other document connected with the contract of insurance.  Under the section, it is imperative that to avoid the contract the insurer must prove that material facts have been suppressed and that either the suppression of material facts or the fraudulent representation  of material facts occurred with the full knowledge of the assured.  Under the two years rule proof of material and deliberate fraud is necessary and not mere constructive fraud. “ and another decision of the National Consumer Disputes Redressal Commission, New Delhi dated 09.09.2008 in Smt.Santhosh Kanwar/vs/ Life Insurance Corporation of India, Through the Senior Divisional Manager” “ Mere inaccuracy or falsity in respect of some recitals or items in the proposal is not sufficient.The burden of proof is on the insurer to establish these circumstances and unless the insurer is able to do so there is no question of the policy being avoided on ground of misstatement of facts. “ Therefore,  the repudiation of the policy is not justifiable and it is  nothing  but  sheer deficiency of the service on the part of the opposite party to avoid  their liability to pay the policy amount to the complainant

 9) The contention of the opposite party raised in the written version that the complainant had not contacted within 21 days from the date of their repudiation letter and therefore she is estopped from filing this complaint belatedly is not at all tenable in view of the fact that she had already sent a reply through her counsel under Ex.A.3 and further the complaint is filed within time in accordance with the provisions of sec.24(A) of the Consumer Protection Act 1986.

10) POINT No.2:In the result, the complaint is allowed in part. The opposite party is directed to pay the policy amount of Rs. 75,000/- (Rupees seventy five thousand only)to the complainant with interest at the rate of 12% per annum from 19.04.2011 the date Ex.A.1 the claim letter sent by the complainant till the date of payment and Rs.75,000/- (Rupees seventy five thousand only) towards compensation for the mental agony, inconvenience and hardship caused to him owing to the negligence and deficiency of service on the part of the opposite party and to payRs.5000/- (Rupees five thousand only) to the complainant towards cost of thiscomplaint.The opposite party is directed to pay the policy amount and the compensation amount of Rs.75,000/-to the complainant within 45 days from the date of this order, failing which the said compensation amount of Rs.75,000/- shall also carry an interest at the rate of 12% per annum from the date of this order till date of  its payment.

This order was dictated by me to the Assistant, transcribed by her and corrected  and pronounced by me on this  24th   day of  June  2015.

MEMBER -I                                                                                                 PRESIDENT

List of documents on the side of the complainant:-

List of documents on the side of the   Opposite party :    NIL

MEMBER -I                                                                                         PRESIDENT