The Senior Superintendent of Post Office - Opp.Party(s)
S.Raghu
19 Aug 2009
ORDER
THE DISTRICT CONSUMAR DISPUTES REDRESSAL FORUM No.419, Ist Floor,. H.N. Gowda Building, M.B.Road, Kolar-563101 consumer case(CC) No. CC/08/128
Shanthamma
...........Appellant(s)
Vs.
The Post Master General (RPLI) The Senior Superintendent of Post Office
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
CC Filed on 26.12.2008 Disposed on 27.08.2009 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR. Dated: 27th day of August 2009 PRESENT: Sri. G.V.HEGDE, President. Sri. T.NAGARAJA, Member. Smt. K.G.SHANTALA, Member. --- Consumer Complaint No. 128/2008 Between: Smt. Shanthamma, W/o. Late. Srinivasachari, Major, Murali Krishna Tailors, Yegavakote, Murugamalla Hobli, Chinthamani Taluk. (By Advocate Sri. S. Raghu) .Complainant V/S 1. The Senior Superintendent of Post Office, Kolar Division, Kolar. 2. The Post Master, General (RPLI), S.K. Region, II Floor, G.P.O Building, Bangalore 01. (By Advocate Sri. P.N. Krishna Reddy) .Opposite Parties ORDERS This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite parties to pay Rs.60,000/- being the insurance amount payable on the death of complainants husband together with interest and costs, etc., 2. The complainant is a widow of late Srinivasachari who died on 13.08.2006. During the lifetime of Srinivasachari he took medical insurance policy under Rural Postal Life Insurance policy No. R-KT-SK-EA-154290 on his life with OPs. The proposal for insurance was on 12.04.2004. The medical examination of Srinivasachari was done on 16.04.2004 by Medical Officer, PHC, Gangigunte of Sidlaghatta Taluk. The proposal was accepted on 16.06.2004 from which date the risk under the policy commenced. The insured was aged 42 years at the time of proposal and his date of birth was 18.07.1972. He was tailor by profession. The first premium was received on 12.04.2004. The policy was to mature at the age of 58 years of insured. The monthly premium was Rs.315/-. The insured died on 13.08.2006. The complainant who was nominee under the insurance policy preferred claim and the same was rejected on 20.02.2008 on the ground that the insured had suppressed the fact of his diabetes at the time of taking the policy. Therefore the complainant has filed the present complaint alleging that her late husband Srinivasachari was hale and healthy at the time of taking of the policy and all of a sudden on 13.08.2006 he developed hypoglycaenmic and hypertension and also renal impairment and died on the same day. 3. The OPs appeared and filed their common version. It is contended that the insured had suppressed the fact of his diabetes at the time of taking up of the policy, in order to get unlawful benefit and that diabetes is not minor thing to be ignored as it has vital say on the health of the insured. Therefore the OPs contended that the rejection of claim was valid and legal. 4. The parties filed affidavits and documents. We heard the Learned Counsel for the parties. 5. The following points arise for our consideration: 1. Whether the repudiation of the claim is valid? 2. If not, to which reilefs the complainant is entitled to? 3. To what Order? 6. After considering the records and submissions of the parties our findings are as follows: Point No.1: The policy commenced on 16.06.2004. The death of the insured was on 13.08.2006. The claim was repudiated on 20.02.2008 nearly after 3 years 8 months from the date of commencement of the policy. Therefore we think later part of Sec 45 of Insurance Act 1938 is applicable to the present case. The material part of sec-45 of the said Act is as follows: S. 45. Policy not to be called in question on ground of misstatement after two years.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 it 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): The insurer must prove that the misstatement or concealment was of a material matter and that was fraudulently made by the policy holder. Both these facts are to be proved by insurer to avoid the claim under the insurance policy. In the proposal form at para.38 the insured had answered the following questions as under: 38. HAVE YOU EVER SUFFERED FROM ANY DISEASE IN RESPECT OF FOLLOWING. MORE PARTICULARLY DISEASES LISTED BELOW. IF SO, GIVE DETAILS AND PERIOD OF ILLNESS. (a) STOMACH OR DIGESTIVE SYSTEM esp. peptic ulcer, colities, piles, fistula. NO (b) HEART, CIRCULATORY OR LYMPHATIC SYSTEM esp. Angina, Ischaemic heart disease, Hoemophaelia, low/high blood pressure NO (c) LUNGS OR RESPIRATORY SYSTEM esp. Tuberculosis, pleurisy, cedema, asthama NO (d) BRAIN OR NERVOUS SYSTEM esp. Insanity, Epilepsy, Paralysis, Neuralgia, Neurasthenia. NO (e) KIDNEYS OR EXCRETORY SYSTEM esp. Kidney Failure NO (f) BONES SKELETAL SYSTEM OR JOINTS esp. Arthrilin, Gout. NO (g) SEXUAL ORGANS OR REPRODUCTIVE SYSTEM esp. Hyderocoele, Syphilils, Gonorhoea or any other venereal diseases. NO (h) SENSE ORGANS, MUSCLES, SKIN OR ENDOCRINE GLANDS esp. Hernia, diabetes, Cancer, Glands, tumours, flariasis, leprosy NO The OPs have produced copy of death summary and case history issued by Garden City Hospital, Bangalore where the insured was admitted for treatment. These documents show that he was admitted at 4.45 a.m. on 13.08.2006 and he died on the same day at about 10.00 a.m. The causes of death as shown in the said documents are 1. Severe metabolic acedoses secondary to renal failure, 2. Severe sepsis due to cellulitis of B/L lower limbs and external genitals, 3. Diabetics mellitus. The case history shows that the insured was a known case of diabetes mellitus and hypertension and was 8 years on treatment, recently said to have developed chronic renal failure. Further the case history shows that before bringing the patient to Garden City Hospital he was taken to different hospitals in Bangalore, but each one of those hospitals without admitting the patient referred him to other hospitals and finally he was referred by St. Johns Hospital to Garden City Hospital. Further it shows that the patient was apparently normal one day back when he suddenly developed altered sensation and de-cleared urinary output since one day, loss of consciousness since 2 hours. 7. The Learned Counsel for OPs submitted that the insured was suffering from diabetes and hypertension since 8 years and he had not disclosed these facts in his proposal, therefore withheld material facts regarding the state of his health at the time of proposal. According to Learned Counsel for OPs this suppression of fact disentitles the complainant to claim the insurance amount. On the other hand the Learned Counsel for complainant submitted that the insured was hale and healthy and all of a sudden on 13.08.2006 he developed hypoglyceamic and hypertension and also renal impairment and died on the same day. From the hospital records it cannot be disputed that the insured was suffering from diabetes and hypertension at the time of furnishing the proposal for insurance. Diabetes and hypertension are not so serious diseases if proper treatment is taken from time to time. The hospital records show that the patient was unconscious 2 hours prior to his admission. It is not known who gave the history of diabetes and hypertension and that patient was on treatment from 8 years. The person who gave the history of ailment is not mentioned in the hospital record. Therefore at best it can be said that patient was a known case of diabetes and hypertension for some years, but may not be from 8 years. There is also no evidence that he was on treatment for such a long time for these diseases. There is no record that the policy holder was inpatient at any time prior to 13.08.2006 in any hospital. 8. From the above facts and circumstances one can say that the misstatement or concealment was of a material matter which it was material to disclose. However there is no evidence that it was fraudulently made by the insured and he knew at the time of making it that the statement was false. The sum assured was Rs.60,000/- and the policy holder was aged 42 years at the time of taking the policy and he was tailor by profession and he had not taken any insurance policy on his life earlier to it. There is no evidence that he was inpatient in any hospital earlier to 13.08.2006. In such circumstances it is not possible to infer that he suppressed the facts and it was fraudulently done. There is no proper pleading and evidence led by OPs to establish that suppression of material facts were fraudulently made by the policy holder. If the repudiation was before the expiry of 2 years from the date of commencement of the policy, then the mere suppression of material facts was sufficient to repudiate the claim. In the present case, the repudiation had taken place after 3½ years from the commencement of the policy. The decision in W.P. No. 5963/2001 between Girija V Arakeri v/s. LIC of India, the repudiation was within 2 years from the date of commencement of the policy. In the other case of Honble State Commission between Smt. Rudramma and Others v/s. LIC of India and Others, it cannot be ascertained from the facts narrated in it whether the repudiation was earlier to 2 years from the date of commencement of the policy or not. It appears in that case also the repudiation was within 2 years from the date of commencement of policy. Therefore the above said decisions produced by the Learned Counsel for OPs are not helpful to him. In the present case, fraudulent suppression of material facts is to be proved by the OPs and their mere plea that insured at the time of making the proposal had suppressed the material facts is not sufficient to establish the fraudulent suppression. As already noted there is no clear pleading or proof to establish such fraudulent suppression. Hence point No.1 held in negative. Point No.2: The complainant is entitled to the policy amount of Rs.60,000/- and the other benefits accrued if any under the terms of policy. She can also be awarded interest at 6% p.a. from 20.02.2008 the date of repudiation of the claim till the date of payment. Point No.2 is held accordingly. Point No.3: Hence we pass the following: O R D E R The complaint is allowed with costs of Rs.1,000/-. The OPs are directed to pay Rs.60,000/- and other benefits accrued if any with interest at the rate of 6% p.a. from 20.02.2008 till the date of payment, within 45 days from the date of this order. Dictated to the Stenographer, corrected and pronounced in open Forum this the 27th day of August 2009. MEMBER MEMBER PRESIDENT
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