Adv.Ravi Susha, Member
The complainant is the father and nominee of Late Sri.Blessen Kuriakose, Chaithanya, House.No.9, Sanker Nager, Kollam who had insured his life with the opposite parties for an assured sum of Rs.2,00,000/- as per policy No.782432895. The said Blessen Kuriakose passed away on
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31/03/2004. It is submitted that Late Sri.Blessen Kuriakose insured his life for a sum of Rs.2 lakhs by remitting the requisite premium for the period from 28/03/2002 till his death on 31/03/2004 with the second opposite party and the later issued the policy certificate No.782432895.
After the death of Sri.Blessen Kuriakose, the complainant who is the father and nominee of the insured submitted claim for the assured amount as per the policy to the opposite parties. In respect of the said claim, the opposite parties sought several documents and clarifications from the complainant and he has promptly supplied all the said information and documents. But, after a period of one year of the death of the insured, the first opposite party issued a letter dated 29/03/2005 to the complainant repudiating the claim stating that the deceased had withheld correct information regarding his health at the time of effecting the insurance with the opposite parties.
The first opposite party repudiated the claim of the complainant alleging that the proposal for assurance dated 28/03/2002 in respect of Sri.Blessen Kuriakose, the insured had suppressed the factum of a motor vehicle accident to the assured on 26.08.2001 and the subsequent treatment taken from Upasana Hospital upto 07/09/2001. In these context, it is submitted that in the proposal for assurance in respect of the assured, all the entries were filled up by an Agent of the opposite parties namely Sri.K.N.Ramakrishnan,
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Karthika, Thekkepanthirikel, near Betronix, Thirumullavaram, Kollam with Agency No.2567278L that too, after obtaining the signature of the said assured in the said proposal form. Not only that, the said accident and the resultant treatment to the assured has nothing to do with the subsequent death of the assured on 31.01.2004. The said death was a suicidal death. The said accident and the treatment was not at all the proximate cause of death and was not even having any remote connection with the subsequent death of the assured. Therefore the said accident and subsequent treatment were not at all material facts the suppression of which would warrant a repudiation of the claim raised by the complainant.
The complainant was entitled to get Rs.2 lakhs immediately on the death of the assured Sri.Blessen Kuriakose. But the callous and irresponsible act of repudiation by the opposite parties had caused irreparable loss, injuries and sufferings to the complainant and other members of his family. The complainant is entitled to get 18% interest also for the said amount from the date of death of the said Sri.Blessen Kuriakose. Hence filed this complaint.
Opposite party filed version stating that this petition is not maintainable either in law or on facts.
The first unpaid premium due under the policy was 28.03.2004. Since death occurred within the grace period, the policy was treated as in force. But
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the life assured died before three years from the date on which the policy was originally effected. LIC of India was conducted an investigation in the matter of the claim that whether there was any willful suppression and fraudulent misrepresentation of material facts in the proposal dated 28.03.02 made by the life assured. It was revealed in the investigation that there is non disclosure of pre-proposal illness and hence the policy was repudiated.
In item No.11 (a), (b), (c) and (9) of the proposal form, which intended for the life assured to answer some specific questions that (a) .During the last five years, did you consult a Medical Petitioner for any ailment requiring treatment for more than a week ? (b) Have you ever admitted to any hospital or nursing home for general checkup, observation, treatment or operation? and as (g) Did you ever have any accident or injury? For these three questions the life assured had given negative answers “No”. For another question as Item No.11(1) what has been your usual status of health? The answer was “Good”. But all these answers revealed as false and hold indisputable proof to show that life assured that with a motor accident on 26.08.2001 and taken treatment from Upasana Hospital, Kollam upto 07.09.2001. He did not however disclose these facts in the proposal, instead he gave false answers.
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Moreover from the enquiry it reveals that life assured Blessen Kuriakose was an Engineering student in Rajas Engineering college, Nagarcoil by occupation. Life assured was regularly using motor cycle and he was noted for his over speed riding. Many times he met with bike accidents and one among them was happened on 21.01.04 and he was undergone treatment in Nair’s Hospital, Kollam
From the enquiry it revealed that, life assured Blessen Kuriakose met with major accident that was happened in 26.08.01 ie 5 months prior to the date of proposal. Photocopy of the case sheet obtained from Upasana Hospital, Kollam along with claim investigation report reveals that he was undergone prolonged treatment ie. From 26.08.01 to 07.09.01 and was discharged on 07.09.01 as he was not fit for discharge. He did not however disclose these facts in the proposal, instead gave false answers therein as stated above. In the FIR, given by the father of the deceased to the police that his son committed suicide due to some mental difficulties.
Since the death occurred within 3 years from the date of commencement of the policy, the claim has to be examined for admission only after investigation and verification of treatment records. The investigation conducted by the LIC of India into the cause of death and his past medical records, it has
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come up in evidence that there was fraudulent suppression of material facts and regarding his death of the proposal form which he ought have revealed. There was no deficiency of service; LIC is not liable to pay any compensation to the complainant.
Heard both sides.
The complainant filed affidavit. From the side of complainant PW1 was examined and Exts.P1to P4 marked. From the side of opposite parties DW1, DW2, DW3 & DW4 were examined and Exs.D1 to D15 were marked.
The points that would arise for consideration are:
1. Whether there is any deficiency in service from the part of opposite party?
2. Compensation and cost
There is no dispute that at the time of death of Sri.Blessen Kuriakose, he had a valid insurance policy with the opposite party. The grievance of the complaint is that though he submitted claim application with supporting documents after the death of Blessen Kuriakose, the opposite parties did not allow his claim.
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According to the opposite parties there is suppression of material facts on the side of late Sri.Blessen Kuriakose and violation of policy condition. One of the main contentions of the opposite parties is that in D5 proposal form in column II (a), (b) and (g), the insured has given wrong answers.
Here the question to be considered is, whether the repudiation on the ground that the insured withheld correct information regarding his health at the time of taking the Insurance policy from the opposite party’s is sustainable. According to the opposite parties, the answers to all the said four questions were false because the insured Sri.Blessen Kuriakose met with a bike accident on 26.08.2011 and subsequently treated at Upasana Hospital from 26.08.2011 to 07.09.2011. As per Exts.D6 and D7 and also according to DW3, the injuries sustained by the insured in the said accident was “Avulsion injury (R) heal with fracture 5th M.T.(R) foot”.
According to opposite parties, as per clause 5 of the policy conditions mentioned in D1 policy it was mutually agreed by the parties that in case it is found that any untrue or incorrect statement contained in the proposal form, personal statement, declaration and connected documents or any material information with hold, the policy shall be void and all claims to any benefit in
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virtue hereof shall cease. Since the life assured had suppressed material facts which was proved by Ext.D1 to D15, D1 policy has become void and no right has been accrued to the complainant to put forth a claim raised in the complaint.
Complainant’s counsel argued that as per S.45 of the Insurance Act 1938, “ No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that was fraudulently made by the policy –holder and that the policy –holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose”.
Thus, S.45 of the Insurance Act, 1938 is a specific bar on the opposite parties calling in question the policy on the ground of any inaccuracy in any statement made in the proposal from or any other document after the expiry of two years from the date of commencement of the policy.
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Complainant’s counsel produced decisions of SC reported in 2001 (3) KLT SN 55 (C.No.73) SC, AIR 2001 SC 549, AIR 2008 Allahabad 72, AIR 2002 Andhrapradesh 479. In these decisions the Hon’ble SC held that Insurance Act 1938.S.45 – Repudiation of claim of the insured or nominee by the insurer- Mere inaccuracy or falsity in respect of some recitals in the proposal would not entitle the insurer to repudiate the claim – False statement or suppression must be on material aspect made fraudulently by policy holder with knowledge that it was false – Burden of proof would be on insurer. According to the complainant for repudiating a policy after the expiry of two years from its commencement, the three conditions are to be satisfied ie; (a) such statement was on a material matter or suppressed facts which it was material to disclose (b) the suppression must be fraudulently made by the policy holder and that the policy holder new at the time of making it that the statement was false and (c) the policy holder suppressed facts which it was material to disclose. Therefore, in order to repudiate a policy after the expiry of two years from the date commencement, the insurer must establish all the above three conditions.
Now the question is whether is the suppressed facts are material or not. Here the answer to the said question in any way affect the decision of the LIC as to whether to issue policy or not. On considering the deposition of DW3, and from Ext.D5, proposal form we are of the view that the answer “No” given by the insured to the said questions in D5 proposal form
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cannot be termed as a material suppression warranting denial of benefits of the policy to the complainant. Suppression of facts must be a conscious operation of the given answer which he knowing by did not disclose.
In AIR 2008 Allahabad 72, it is held that A suffering of a disease or any death not arising out of any false or misstatement at the time of making the policy cannot be a ground for repudiation by the insurance company. Here the “ Avulsion injury (R) heal with fracture 5th M.T.(R) foot” sustained by the insured in no way led to the subsequent death of him.
Therefore the repudiation of the claim of the complainant by the opposite parties is not sustainable. The insured while filling up the proposal form for taking the policy for him, had not made any concealment or suppression of material facts regarding health. Here the opposite parties failed to prove the suppression of material facts. There is deficiency in service on the side of opposite parties. Hence repudiation of claim made by the opposite parties is unjustified. Complainant is entitled to get the policy amount.
In the result, the complaint is allowed. Opposite parties are directed to give the assured sum of Rs.2,00,000/- (two lakhs) with 9% interest from the date of death of the insured till the date of realization of the entire amount. Opposite parties are also directed to pay Rs.5000/- as compensation and
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Rs.1000/- as cost to the proceedings. The opposite parties have to complied with the order within one month from the date of receipt of the order. Failing which the insured amount will carry 12% interest.
Dated this the 16th day of July 2012
G.Vasanthakumari:Sd/-
Adv.Ravi Susha :Sd/-
R.Vijayakumar :Sd/-
INDEX
List of witness for the complainant
PW1 - Kuriakose.K
List of documents for the complainant
P1 -Renewal Premium Receipt
P2 - FIR Copy (Subject to admissibility)
P3 - Post mortum Certificate
P4 - Letter of Repudiation
List of witness for the opposite party
DW1 - N.Chandrasekharan
DW2 - G.Karamchand Mohanji
DW3 - Dr.G.A.George
DW4 - M.Thomas Vaidyan
List of documents for the opposite party
D1 - Copy of policy certificate
D2 - Copy of FIR
D3 - Death Certificate
D4 - Death Intimation letter
D5 - Proposal form dtd :28.03.2002
D6 - Copy of case sheet of Upasana hospital (9) sheets
D7 - Discharge card from Upasana Hospital
D8 - Copy of claimants certificate
D9 - Copy of letter dtd 12.07.2004 sent by opposite party to the complainant
D10 - Copy of enquiry report
D11 - Copy of letter dtd 05.01.2005
D12 - Copy of standing committee minutes dtd 03.03.2005
D13 - Copy of Registered letter dtd 29.03.2005
D14 - Op case sheet (Patient note)
D15 - patient note
// Forwarded by Order //
SeniorSuperintendent
