BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 87/2006 Filed on 20.03.2006

Dated : 15.09.2010

Complainants:

1. Sarasija, W/o late Manilal, Murukkuvila Veedu, Pullannicode P.O, Edava (via), Varkala, Thiruvananthapuram-695 311.

Addl. Complainant:

2. Kumari Bhadra, D/o late Manilal, ..do..

(By adv. S. Sundaresan)

Opposite party :

M/s Metlife Insurance Co. Pvt. Ltd., (represented by its Managing Director), Brigade Seshmahal, 5, Vanivilas Road, Basavanagudi, Bangalore-560 004.

(By adv. T.K. Ananda Padmanabhan)

This O.P having been heard on 30.06.2010, the Forum on 15.09.2010 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant's husband took a policy from the opposite party vide life insurance policy No. 1200300015831 with effect from 21.07.2003, that complainant's husband felt nausea and breathlessness towards the third week of August 2005 and consulted many local doctors and finding no relief, got himself admitted in the Medical College Hospital, Thiruvananthapuram on 07.09.2005 and treated by Dr. Ram Das Pisharady and complainant's husband died on 24.10.2005. Complainant submitted 2 claims-one against critical illness and the other against basic policy, that opposite party repudiated the claim on the ground of non-disclosure of material facts. Hence this complaint to direct opposite party to settle the 2 claims together with compensation and costs.

Opposite party filed version contending that complainant's husband was issued a life insurance policy from the opposite party bearing life insurance policy No. 1200300015831 with effect from July 21, 2003, that opposite party issued the policy based on the information furnished by the deceased in his application based purely on good faith. In his application for insurance cover the deceased did not disclose any ailment, that on account of non-disclosure opposite party did not seek any additional medical information, that in the Critical Illness Claim Form it was disclosed that the first symptoms appeared on September 01,2005 and the deceased was in stage V Chronic Kidney disease. The claims of the complainant was rejected on account of the fact that the deceased suffered from Nephrotic Syndrome with intermittent remission from the age of seven. Complainant suppressed the disease in the application. Suppression of material facts entitles the opposite party to cancel the policy and forfeit the premiums received as per clause 25 of the Terms and Conditions of policy contract. Insurance is a contract of uberrima fides. Complainant is under an obligation to disclose the material particulars that will influence the decision of the insurance company in granting the insurance cover. Failure to do so entitle the opposite party to repudiate the claim. Hence opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether the insured was suffering from Nephrotic Syndrome before taking policy?

2. Whether the said disease was in his knowledge?

3. Whether the insured had intentionally concealed the disease?

4. Whether the complainants are entitled to get insurance claim amount?

5. Whether there has been deficiency in service on the part of opposite parties?

6. Whether the complainants are entitled to compensation and costs?

In support of the complaint, 1^st complainant has filed affidavit in lieu of examination in chief as PW1 and has marked Exts. P1 to P7. 1^st complainant has been cross examined by the opposite party. In rebuttal, opposite party has filed proof affidavit as DW1 and has marked Exts. D1 to D4. One witness has been examined as DW2. Both the DW1 and DW2 have been cross examined by the complainant.

Points (i) to (vi):- Admittedly, 1^st complainant's husband took a policy from the opposite party vide Life Insurance Policy No. 1200300015831 with effect from 21.07.2003. It has been the case of the 1^st complainant that her husband/insured felt nausea and breathlessness towards the third week of August 2005 and consulted many local doctors and finding no relief, got himself admitted in medical college hospital, Thiruvananthapuram on 07.09.2005 and treated by Dr. Ram Das Pisharady therein and he could not be saved and ultimately the insured expired on 24.10.2005, that after the death of the insured, complainant submitted two claims vide Nos. CI-IV/ICI/2005/13 and No. IV/2005/109, one against critical illness rider of Rs. 50,000/- and the other against basic policy of Rs. 57,000/-, that opposite party repudiated the claim on the ground of non-disclosure of material fact. It is rebutted by the opposite party that the insured was undergoing treatment for Nephrotic Syndrome with intermittant remission from 7 years of age, that the said material fact was not disclosed by the life assured in his application for the aforesaid policy. It is the stance of the opposite party that insurance contracts are based on the principle of “utmost good faith” and the policies are issued on the representations made in the application form and any non-disclosure or misrepresentation in the application form renders the contract voidable at the option of the insurer. Ext. P1 series include the copy of the letter dated 24.07.2003 issued by opposite party to the policy holder, the copy of the first premium receipt dated 24.07.2003, the copy of the policy document and the copy of the proposal form. On perusal of the policy features it is seen that policy was issued on 21.07.2003, policy No. 1200300015831, policy term : 20 years, effective date of policy : 21.07.2003, Date of maturity : 21.07.2023, premium period : 20 years, Face amount of Insurance : Rs. 57,000/-. Insured event upon which benefits payable : (1) Death of the life insured prior to date of maturity and (2) upon survival of the insured to date of maturity. On perusal of Rider details, it is seen that the amount of coverage for critical illness is Rs. 50,000/-. Total provision includes base policy, accidental death benefit, term rider and critical illness. Ext. P2 is the copy of the Investigation and treatment report from Department of Nephrology. A perusal of Ext. P2 reveals that Manilal (insured) was admitted on 07.09.2005 and discharged on 13.09.2005, I.P No. 385230, provisional diagnosis chronic kidney disease, stage V and final diagnosis chronic glomerulonephrites. Ext. P5 series show copy of the advocate notice dated 25.01.2006 to Managing Director, Metlife India Insurance Co. Pvt. Ltd., postal receipt and acknowledgement card. Ext. P4 is the copy of the repudiation letter dated 28.12.2005 issued by the opposite party, wherein it is seen mentioned that opposite party is unable to admit the liability of the said claim due to non-disclosure of material fact and has treated the said policy as void ab initio. Ext. P6 is the reply letter issued by opposite party to advocate notice sent by the complainant. Ext. P7 is the copy of the letter sent by Dr. Ram Das Pisharady to counsel of the complainant. Ext. D1 is the application for life insurance. Ext. D2 is the critical illness claim form. Ext. D3 is the attending Physician's statement. Ext. D4 is the copy of the repudiation letter. 1^st complainant has been examined as PW1. In her cross examination, PW1 has deposed that her husband was not suffering from any disease at the time of taking policy nor was he admitted and treated for any disease in any hospital prior to June 2003. On being suggested that her husband had kidney disease at his younger age, PW1 said she did not know it nor did her husband tell her about such disease. PW1 denied the suggestion that her husband took policy by suppressing his disease, PW1 has deposed in her cross examination that, the application for policy has been filled by agent Natesha. It has been the contention of the opposite party that they issued policy based on information furnished by the deceased insured in his application which is purely based on good faith, that in his application for policy the deceased did not disclose any ailment, upon which opposite party did not seek any additional medical information. It has been contended by the opposite party that in his application form the deceased/insured had suppressed his ailment, which is clear from the medical records of the deceased. Ext. X1 is the case record of the Medical College Hospital related to patient Manilal. There are two case records dated 06.09.2005 and 24.10.2005 in Ext. X1. Dr. Ram Das Pisharadi, Principal, Medical College, has been examined as DW2. On perusal of Ext. X1 records, in his chief examination, DW2 has deposed that he has treated one Manilal, his first admission was on 06.09.2005, after that he was discharged on 13.09.2005, that he was admitted with the complaints of breathlessness, reduced urine output and smelling, that he was evaluated then and found advanced kidney failure, and he was taken for dialysis. DW2 has further deposed that patient's second admission was on 24.10.2005, that at the time of first admission, the patient was under treatment for severe hypertension and chronic kidney disease stage V for 8 months. On perusal of Ext. D3 series, DW2 said Ext. D3 certificate has been issued by him, that the connected records in Ext. D3 series are issued to the complainant from his hospital. When asked him about glomerulonephrites, DW2 said it is a chronic disease of the kidney whereby kidney is slowly damaged. On being asked was Manilal having glomerulonephrites at the time of admission, DW2 said he was presumed to have chronic glomerulonephrites and he has undergone four hemodialysis in the hospital. DW2 has deposed further that second time, Manilal was admitted with severe breathlessness and he was taken up for dialysis during which he had cardiac arrest and died. On perusal of Ext. D3 series, it is seen that from the age of 7, the patient had taken treatment for some kidney disease. DW2 said he had not gone through the previous treatment records of the patient at the time of admission, as previous records were not available. DW1 and DW2 have not been cross examined by the complainant. DW1 has not been cross examined by the complainant. Exts. D1 to D4 series were marked on the side of opposite party. There is a copy of the Pre Renal Transplant work up-Recipient proforma and Summary in Ext. D3 series. Complainant did not object the marking of Ext. D3 series, nor did he put any question to DW1 in connection with copy of the Pre Renal Transplant work up-Recipient proforma and Summary attached in Ext. D3 series. It is pertinent to point out that by Ext. P4 repudiation letter dated 28.12.2005 though opposite party had informed the complainant that during the course of assessing the claim they observed that Mr. Manilal was undergoing treatment for Nephrotic Syndrome with intermittant remission from 7 years of age, the same was not disclosed by the life assured in his application for the said policy, complainant was silent on it while cross examining the DW1. Further as per Ext. X1 series, the deceased/insured was in stage V chronic kidney disease, which was confirmed by testimony of DW2. In view of the foregoing discussions and evidence available on records, we are of the considered opinion that the deceased/insured had kidney related problems (Nephrotic Syndrome with intermittant remission from 7 years of age) before taking policy and the insured did not disclose the same in his proposal/application form though the said disease was in his knowledge. There is no material/evidence on the part of the complainant to prove otherwise. It is well settled law that when a policy is taken by an insured suppressing material facts, the Insurance Company is at liberty to repudiate the contract upon coming to know the true facts, because a contract of insurance is a contract of 'uberrima fidei'. An applicant for the grant of insurance cover is under an obligation to disclose all material particulars that will influence the decision of the insurance company in granting insurance cover. Failure to do so entitle the insurance company to repudiate the claim for insurance cover. In view of the above, we find repudiation of claim is lawful and as per the terms of the contract. Complainant failed to establish any deficiency on the part of opposite party. Complainant had no merits at all which deserves to be dismissed.

In the result, complaint is dismissed with no order as to cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of September 2010.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

jb

C.C. No. 87/2006

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Sarasija

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of letter dated 24.07.2003 issued by opposite party to

the policy holder.

P2 - Copy of investigation and treatment report from Department

of Nephrology.

P3 - Copy of last attending physician's report-proof of death.

P4 - Copy of repudiation letter dated 28.12.2005 issued by the

opposite party.

P5 - Legal notice to the opposite party dated 25.01.2006

P6 - Reply letter issued by opposite party to advocate notice sent

by the complainant.

P7 - Copy of the letter sent by Dr. Ram Das Pisharady to counsel

of the complainant.

III OPPOSITE PARTY'S WITNESS :

DW1 - Veena Nair

DW2 - Dr. Ram Das Pisharadi.

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Application for life insurance.

D2 - Critical illness claim form

D3 - Statement of attending physician.

D4 - Copy of repudiation letter dated 28.12.2005

PRESIDENT

jb