BEFORE THE DISTRICT CONSUMER FORUM AT NALGONDA
PRESENT: SRI D.SINGARA CHARY, B.A., LL.B.,
PRESIDENT.
SRI K.VINODH REDDY, B.Sc.,
MEMBER.
. . .
THURSDAY, THE NINETEENTH DAY OF JULY, 2012
CONSUMER COMPLAINT No. 1 OF 2012
Date of filing: 02-01-2012
Date of Disposal:19-07-2012
Between:
1) Goli Kamala W/o Late Ashwathama, Age: 51 years,
Occ: Govt.Employee,
2) N.Shilpa D/o Late Ashwathama, Age: 26 years, Occ: Student,
3) N.Priyanka D/o Late Ashwathama, Age: 23 years, Occ: Student,
All are R/o H.No.6-3-121/B/68, Gandhi Nagar, Ramagiri,
Nalgonda Town and District.
…Complainants.
AND
1) The Senior Divisional Manager, Life Insurance Corporation of
India, Jeevan Sagar, Behind: NTR Stadium, Near: Indira Park,
Hyderabad.
2) The Branch Manager, Life Insurance Corporation of India,
Branch Office-I, Nalgonda Town and District.
…Opposite Parties.
This complaint coming on before us for final disposal on this day, in the presence of Sri G.Amarendar Reddy, Advocate for the Complainants, and Sri M.Narsimha Reddy, Advocate for the Opposite Parties No.1 and 2, and on perusing the material papers on record, and having stood over for consideration till this day, the Forum passed the following:
ORDER OF THE FORUM DELIVERED
BY SRI D.SINGARA CHARY, PRESIDENT
1. The Complainant No.1, the wife and the Complainants No.2 and 3, the daughters of late Ashwathama have filed this complaint Under Section 12 of Consumer Protection Act to direct the Opposite Parties to
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pay a sum of Rs.2,00,000/- under the Policy bearing No.601349033 with interest @ 12% p.a. and a sum of Rs.50,000/- towards mental agony.
2. It is alleged in the complaint that late Ashwathama took a Policy bearing No.601349033 from the Opposite Party No.2 on his life for a sum of Rs.2,00,000/- on 30-07-2005. During the subsistence of the said policy, the said Ashwathama suffered heart attack on 30-07-2006 and died. The Complainants submitted papers to the Opposite Parties claiming the amount, who repudiated the claim on 19-02-2008 giving liberty to the Complainant No.1 to approach the Zonal Office at Hyderabad if they are not satisfied with the decision. The Complainants approached the Zonal Office and the claim is pending inspite of several visits of the Complainants. The Opposite Party No.2 settled two other policies, but kept the present claim pending wontedly on some flimsy grounds. The inaction on the part of the Opposite Parties amounts to deficiency of services. As the matter is pending without settlement with the Zonal Office, i.e. Opposite Party No.2, the Complainants are forced to file this complaint.
3. The Opposite Parties No.1 and No.2 filed a written version admitting the issuance of the policy. On receipt of the claim on the death of the deceased which is said to have occurred on 30-07-2006, the Opposite Party No.1 got enquired the matter since it is an early claim. The deceased answered question No.11 and several other subsidiary questions in such a way that he was keeping good health and persuaded the Opposite Parties to accept the proposal and issue
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the policy. As a matter of fact, the deceased who was working as H.W.O. in Social Welfare Department was on sick leave for two months, i.e. from 16-06-2005 to 15-08-2005 and during the said period itself he obtained the policy in question. The employer of the deceased also certified that the deceased was on leave during the said period. The deceased had intentionally suppressed the truth while answering question No.11 in the proposal form and induced the Opposite Parties to issue the policy. the deceased had suppressed the material fact and by virtue of Section 45 of the Insurance Act, the Complainants are not entitled to the amounts covered under the policy. The deceased was suffering from Cirrhosis of Liver, Diabetes and Coronary Artery Disease and these facts the Opposite Parties are able to establish with reference to the medical record filed by them. The Complainants also admitted the same in the present complaint itself. In Claim Form-A submitted by the Complainant No.1 for processing the death claim, the Complainant No.1 stated that the deceased died of heart attack. The disease of heart attack has nexus with the Cirrhosis of Liver, Diabetes and Coronary Artery Disease, on account of which diseases the deceased went on leave when he obtained the policy. The deceased signed the declaration with misleading answers under question No.11 and also signed a declaration that in the event any of the answers given by him being false the contract would be null and void. After the Opposite Party No.2 repudiated the claim the Complainants approached the Zonal Office and the grievance redressal cell had received the claim and placed it before the committee which includes in itself one of the
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Hon’ble High Court Judges who upheld the repudiation. The decision of the Zonal Office was communicated to the Complainants vide letter dated 19-01-2009. The present claim ought to have been filed within two years from 19-01-2009 and as this complaint was filed beyond two years the same is barred by limitation. The Opposite Parties ultimately prayed for the dismissal of the complaint.
4. The parties filed their respective proof affidavits. While the Complainants marked Exs.A-1 to A-4, the Opposite Parties marked Exs.B-1 to B-9.
5. The points for consideration are:
1) Whether the complaint is filed within limitation?
2) Whether the deceased had suppressed any diseases
and if so, is such suppression so unpardonable as to
repudiate the claim?
3) To what relief the Complainants are entitled to?
6. POINT No.1:
The plea of the Opposite Parties in the written version and the submission of the learned counsel for the Opposite Parties is that as the Opposite Party No.1 communicated letter Ex.B-6, dated 19-01-2009 confirming the decision taken by the Opposite Party No.2, the complaint is barred by limitation. It is his submission that while such letter is dated 19-01-2009 the complaint filed by the Complainants in this Forum was on 22-12-2011 and as such it is barred by limitation since it ought to have been filed within two years U/S 24 of Consumer
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Protection Act. According to the said provision, the District Forum shall not admit the complaint unless it is filed within two years from the date on which cause of action has arisen. It is to be seen as to when cause of action had arisen. Even though the Opposite Parties filed Ex.B-6, dated 19-01-2009 according to which the repudiation of the claim made by the Opposite Party No.1 was confirmed by the Opposite Party No.2, the Opposite Parties did not file postal acknowledgement. A perusal of Ex.B-6 shows that it is said to have been sent by registered post acknowledgement due. If it was really so sent, the Opposite Parties would have filed postal receipt and acknowledgement showing the date of service of registered cover containing Ex.B-6. Al already stated, the Opposite Parties did not file postal acknowledgement and as such the Complainants cannot be imputed with the knowledge of taking decision as in Ex.B-6. As seen from the complaint and from the absence of proof of service of Ex.B-6, it is clear that the Complainants had no knowledge about taking decision as in Ex.B-6. Until it is established that Ex.B-6 is served on the Opposite Parties, it cannot be said that cause of action had arisen. Unless the cause of action has arisen, the Complainants could not file the complaint. The complaint is filed in such a way that in spite of the Complainants approaching Zonal Office (OP-1) they have not taken a decision. Since service of Ex.B-6 is not established, it cannot be said that the cause of action has arisen and as such the contention of the Opposite Parties that the complaint is barred by limitation has no force. Concomitantly we hold under this point that the complaint is filed within limitation.
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7. POINT No.2:
The fact that the deceased obtained insurance policy for a sum of Rs.2,00,000/- by submitting proposal form Ex.B-1 on 30-07-2005 is not disputed. The Opposite Parties, however, plead that in filling of column of question No.11 of Ex.B-1 (Proposal Form) in relation to his health, the deceased had given false answers in as much as he stated therein that he was not having any ailments in spite of the fact that he was suffering from Cirrhosis of Liver, Diabetes and Coronary Artery Disease. Ex.B-3 is the Medical Certificate on the basis of which the deceased had taken medical leave for 61 days from 16-06-2005 to 16-08-2005. During the said period he had signed proposal form Ex.B-1. The learned counsel for the Opposite Parties submits that the act of the deceased in giving answers in such a way that he was keeping good health is a fraudulent act and it amounts to suppression of material fact and as such U/S 45 of the Insurance Act the Opposite Parties had right to repudiate the policy. On the other hand, the learned counsel for the Complainants submits that no medical Officer or the person who issued Ex.B-3 Medical Certificate is examined.
8. The Opposite Parties are insurers and according to the decision reported in National Insurance Company Limited Vs.Sowmya and others (2005 ACJ 546), where the insured intends to avoid liability, heavy burden lies on him to establish the existence of the facts justifying the repudiation. The Opposite Parties rely on Ex.B-3, the Medical Certificate issued by Dr. B. Ravi Shankar, Consultant Cardiologist, Yashoda Hospital, Hyderabad, Ex.B-5 application
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addressed by the deceased to the Asst.Director, Social Welfare Department seeking medical leave from 16-06-2005 to 16-07-2005 and Ex.B-4 application for extension of leave from 16-07-2005 to 16-08-2005 and Ex.B-2, the proceedings of the Assistant Director, where under he granted commuted leave on medical grounds to the deceased from 16-06-2005 to 15-08-2005 to establish that the deceased was suffering from the above ailments. The Opposite Parties also rely on the Certificate of the employer that the deceased was on medical leave from 16-05-2005 to 15-08-2005 as in Ex.B-8.
9. As far as Ex.B-3 is concerned, Dr.B.Ravi Shankar of Yashoda Hospital, Hyderabad certified that the deceased was being treated for Cirrhosis of Liver, Diabetes and Coronary Artery Disease. Neither the said doctor is examined nor his affidavit is filed. In the case reported in Kommana Veera Raju and others Vs.LIC of India and another (IV (2007) CPJ 163) the Hon’ble State Commission of Andhra Pradesh held that where it was alleged that insured was suffering from jaundice and was using alcohols, the same was not established by affidavit evidence of doctor who treated him was not filed, it was held that the fraudulent suppression of material fact is not proved. In this case also, the affidavit of the doctor who issued Ex.B-3 is not filed nor he is examined, with the result it is held that the certificate (Ex.B-3) is not properly proved.
10. In accordance with Ex.B-3, the deceased is said to have applied for leave under Ex.B-5 and Ex.B-4 respectively for sanction of
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commuted medical leave on medical grounds from 16-06-2005 to 16-07-2005 and 16-07-2005 to 16-08-2005 and the employer of the deceased had granted the same under Ex.B-2. The treatment record of the deceased for the above diseases is not obtained from Yashoda Hospital and filed by the Opposite Parties. It is not doubt true that the deceased had filed the Certificate and obtained commuted medical leave under Ex.B-2. It is not uncommon for the employees, in certain circumstances to obtain medical certificates and go on commuted medical leave. The circumstances are many and to mention few they resort to such type of leaves when they are posted to inconvenient stations or when they feel that the employer will not sanction long leave, for purposes of securing marriage alliances or construction of house and for other purposes and the reasons are not exhaustive. The purpose behind the deceased obtaining Ex.B-3 it and utilizing the same may be for securing leave. As already observed, the Opposite Parties did not file any record contemporaneous to Ex.B-3 to establish that he was taking treatment in Yashoda Hospital. When the deceased was said to be suffering from Coronary Artery disease, there must be supporting record with the hospital to establish the said treatment. In the circumstances and as the doctor who issued Ex.B-3 is not examined nor his affidavit is filed, it is to be inferred that the purpose of Ex.B-3 is only to secure leave rather than taking treatment.
11. In Ex.B-8 the Employer Certificate, it is stated that the deceased was on medical leave from 16-06-2005 to 15-08-2005. It is there in Ex.B-8 that the deceased had last attended the office on 29-07-2006, whereas he died on the following day, i.e. on 30-07-2006. The very
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fact that the deceased attended to duty just one day prior to his death shows that he was keeping good health and his death was on account of sudden heart attack. The fact that the deceased attended the office on 29-07-2006 also renders ample support to the conclusion reached at by me and expressed above that Ex.B-3 was obtained by the deceased for the mere purpose of convincing his employer to secure leave. The Opposite Parties cannot exploit such a situation to deny the benefits of the policy.
12. In the light of the above facts and circumstances, we hold that the deceased was not suffering any ill health and his death was so sudden and unexpected. Concomitantly, we hold that in answering question No.11 of the Proposal Form Ex.B-1, the deceased did not act fraudulently. Therefore, we hold that the repudiation is not justified and the Complainants are entitled to receive the benefits of the policy. We accordingly hold under this point.
13. POINT No.3:
In view of our findings on Point Nos.1 and 2, we hold that the complaint is fit to be allowed. The policy is for a sum of Rs.2,00,000/-. Even though the Complainant No.1 is shown as nominee in the proposal form, the Complainants No.2 and 3 being the daughters of the deceased are also entitled to their share.
14. As the Complainants No.2 and 3 are major daughters of the Complainant No.1 and the deceased, we feel it proper to apportion a sum of Rs.1,00,000/- to the Complainant No.1 and Rs.50,000/- to each to the Complainants No.2 and 3.
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In the result, the complaint is allowed and the Opposite Parties are directed to deposit in this Forum a sum of Rs.2,00,000/- (Rupees Two lakhs only) towards policy amount and a sum of Rs.5,000/- (Rupees Five thousand only) towards deficiency of services with interest thereon @ 9% p.a. from the date of the complaint till the date of deposit with costs of Rs.2,000/- (Rupees Two thousand only). On such deposit, a sum of Rs.1,00,000/- (Rupees One lakh only) and Rs.5,000/- (Rupees Five thousand only) shall be paid to the Complainant No.1 and a sum of Rs.50,000/- (Rupees Fifty thousand only) each with corresponding interest thereon shall be paid to the Complainants No.2 and 3. The amount of costs shall be paid to the Complainant No.1. Time for compliance one month.
Dictated to Steno-Typist, transcribed by him, corrected and pronounced by us in the open Forum on this 19th day of July, 2012.
MALE MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Complainants: For Opposite Parties:
Affidavit of the Complainant No.1. Sri K.Madan Mohan Rao,
Manager (L&HPF), LIC of India, D.O.Secunderabad filed his affidavit on behalf of the Opposite Parties.
EXHIBITS MARKED
For Complainants:
Ex.A-1 Dt.19-02-2008 Letter addressed by the Opp.Party No.1
to the Complainant No.1.
Ex.A-2 Dt.24-04-2008 Xerox copy of letter addressed by the
Complainant No.1 to the Opp.Party No.2.
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Ex.A-3 Dt.06-09-2008 Xerox copy of letter addressed by the
Complainant No.1 to the Opp.Party No.1.
Ex.A-4 Dt.06-09-2008 Acknowledgement issued by Opp.Party No.1.
For Opposite Parties No.1 and 2:
Ex.B-1 Dt.30-07-2005 Original Proposal for Insurance
on own life.
Ex.B-2 Dt.16-09-2005 Xerox copy of Proceedings issued by
Dy.Director (Social Welfare), Nalgonda.
Ex.B-3 Dt.16-06-2005 Xerox copy of Medical Certificate
issued by Dr.B.Ravi Shankar.
Ex.B-4 Dt. Xerox copy of leave letter addressed by the
deceased to the Social Welfare Dept.
Ex.B-5 Dt.16-06-2005 Xerox copy of leave letter addressed by the
deceased to the Social Welfare Dept.
Ex.B-6 Dt.19-01-2009 Letter addressed by the Opp.Party No.1
to the Complainant No.1.
Ex.B-7 Dt.19-02-2008 Letter addressed by the Opp.Party No.1
to the Complainant No.1.
Ex.B-8 Dt. Xerox copy of Certificate by Employer.
Ex.B-9 Dt. Original Claimants Statement.
PRESIDENT
DISTRICT CONSUMER FORUM
NALGONDA
TO
1). Sri G.Amarendar Reddy,
Advocate for the Complainants.
2). Sri M.Narsimha Reddy,
Advocate for the Opp.Parties.
