BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 120/2001 Filed on 13.03.2001 Dated : 30.05.2009 Complainant: A. Lalitha, W/o late K. Bhaskaran, Kariyakonam, Kizhakkumkara Puthen Veedu, Kunnampara, Ooruttambalam P.O, Thiruvananthapuram.
(By adv. Bhoj Raj) Opposite parties:
The Zonal Manager, LIC of India, Southern Zonal Office, LIC Building, Anna Salai, Chennai – 600 002. The Senior Divisional Manager, Divisional Office, Jeevan Prakash, Pattom, P.B. No. 1001, Thiruvananthapuram-4.
(By adv. S.S. Kalkura)
This O.P having been heard on 15.04.2009, the Forum on 30.05.2009 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT The facts leading to the filing of the complaint are that complainant's husband was a policy holder of the LIC vide policy No. 781177961, that the sum assured by the said deceased was Rs. 50,000/- and that the complainant, being his wife, has been put as his nominee. The deceased insured had been a businessman and his health was quite normal till his last breath. He committed suicide by hanging on the early hours of 07.06.1996 due to a sudden change of his mood which caused as a result of alcohol withdrawal syndrome. He was subjected to de-addiction treatment. For a continuous period of 5 days in the month of January 1996 he was admitted to a private hospital where a course of de-addiction drugs were administered. After discharge he was advised to take medicines at home followed by absolute teetotalism. The deceased insured had never been admitted in any hospital for any sort of illness during the period between 1989 and 1995. The deceased started consuming alcohol only during the late of 1995 out of bad company and stopped it completely after said de-addiction course. However the deceased secretly started consuming alcohol by June 1996. Consequently on 07.06.1996 he hanged himself. The claim form was duly submitted by the complainant. The same was repudiated by the opposite parties on account of the deceased having withheld material information regarding his health at the time of effecting the assurance. In reply complainant on 12.11.1997 sent a letter to the 1st opposite party denying all the false statements and further requested for the early settlement of the claim. Opposite parties maintained total silence. The attitude of the opposite parties stems out from malafides and it attracts unfair trade practice and deficiency in service. Hence this complaint to direct opposite parties to pay Rs. 50,000/- being the amount assured together with a sum of Rs. 50,000/- as compensation to the complainant. Opposite parties filed version contending that the complaint is not maintainable either in law or on facts, that the complaint is barred by limitation and that the complainant has nothing to explain in the complaint about the reason for the delay in filing the complaint. The policy was issued on the life of one K. Bhaskaran for a sum of Rs. 50,000/- with risk commencing from 25.03.1995 and for a term of 20 years in consideration of the proposal for insurance dated 14.03.1995 and the declaration thereon. The life assured Bhaskaran had named Smt. A. Lalitha his wife as the nominee. Smt. Lalitha had informed the opposite parties about the death of the life assured as happened on 07.06.1996 due to suicide by hanging. Since death of the life assured had happened within a short period after the issuance of the policy an investigation in the matter was conducted, thereby it was revealed that the life assured Bhaskaran was suffering from Dysuria and colic from 05.05.1994 and that he had taken treatment from PNM Hospital, Kattakkada. The life assured Bhaskaran had not disclosed the said illness he was suffering, while submitting his proposal for very specific questions in the proposal form regarding his state of health. The life assured Bhaskaran was aware of his suffering from Dysuria and colic while furnishing the above said answers. He had executed a declaration in the proposal for insurance to the effect that the statement and answers had been given by him after fully understanding the questions. He had further declared that if any untrue statements be contained in the proposal the contract of insurance shall become absolutely null and void and all money which should have been paid in respect thereof shall stand forfeited to LIC of India. In such a situation opposite parties had repudiated the liability on the policy of the complainant with cost to the opposite parties. A misrepresentation renders the policy of insurance void ab initio. The reason for repudiation had been convincingly made known to the complainant by letter dated 25.08.1997 and a copy of the proposal for insurance dated 14.03.1995 containing the wrong answers, misrepresentations and the declarations had been sent to her. There is no deficiency in service of any kind on the part of opposite parties. Hence opposite parties prayed for dismissal of the complaint. The points that arise for consideration are:- Whether the complaint is barred by limitation? Whether the deceased insured was suffering from Dysuria and colic before taking policy? Whether the said disease and its treatment was in his knowledge? Whether the deceased insured was a known alcoholic? Whether the complainant is entitled to get the amount of insurance on the death of the insured? Whether there has been deficiency in service on the part of the opposite party? Other reliefs and costs.
In support of the complaint, complainant has filed an affidavit of herself as PW1in lieu of examination in chief and Exts. P1 to P7 were marked. PW1 has been cross examined by the opposite party and Exts. D1 to D5 were marked. In rebuttal, opposite party has filed affidavit. Opposite party's witness has been examined and cross examined by the complainant. Points (i) to (vii):- The first point requiring consideration is whether the complaint is barred by limitation. Submission by the opposite party is that the claim of the complainant was repudiated by letter dated 25.08.1997 which the complainant herself had admitted in the complaint, that the complainant had filed this complaint well after the expiry of two years from the date of repudiation, that complainant has nothing to explain in the complaint about the reason for the delay in filing this complaint. Ext. D5 is the copy of the repudiation letter dated 25.08.1997 issued by the 2nd opposite party to the complainant. In the last paragraph of Ext. D5 letter it is seen stated that “In case you are not satisfied with the decision and feel that we have not considered any particular facts and circumstances in respect of your claim, you may send your representation within a month for reconsideration of your claim to our Zonal office in the following address: the Zonal Manager, LIC of India, Southern Zonal Office, LIC Building, Anna Salai, Madras”. Ext. P3 is the copy of the letter dated 12.11.1997 addressed to the Zonal Manager, LIC of India, Southern Zonal Office, Anna Salai, Madras. In her cross examination, when Ext. P3 letter was shown to the complainant, she had deposed: അത് എഴുതിയത് മലയിന്കീഴിലുള്ള വക്കീലാണ്. അതിലെ ഒപ്പ് എന്റേതാണ്. അത് അയച്ചതിന്റെ രേഖ എന്തെങ്കിലും ഉണ്ടോ? (Q) Agent ന്റെ കൈയില് കാണും.(A) Ext. P3 കത്തേ നിങ്ങള് അയച്ചിട്ടില്ല എന്നു പറയുന്നു (Q) അല്ല അയച്ചിട്ടുണ്ട് എനിക്കും LIC യില് policy ഉണ്ട്. 3 മാസം കൂടുന്പോള് premium അടയ്ക്കാന് പോകുന്പോള് എല്ലാം ഞാന് claimന്റെ കാര്യം ചോദിക്കുമായിരുന്നു. ഒന്നും നടക്കാതെ ആയപ്പോഴാണ് notice അയച്ചത്. Complainant did not furnish any material to show that Ext. P3 letter was issued to the Zonal Manager, LIC, Chennai. She denied the suggestion put by the counsel for the opposite party that complainant had never sent Ext. P3 letter to 1st opposite party. It is pertinent to point out that though complainant has pleaded in the complaint that the complainant on 12.11.1997 sent a letter to the 1st opposite party denying all the false statements and further requested for the early settlement of the claim, opposite parties have never denied the same in their version. Without a plea of denial of the same in the version, counsel for the opposite parties put a suggestion to the complainant that complainant had never sent a letter dated 12.11.1997 to the 1st opposite party. Absence of plea of denial in the version would amount to admission of the pleading in the complaint. In view of the above we came to the conclusion that complainant had sent letter dated 12.11.1997 to the 1st opposite party and non-issuance of reply to the said letter to the complainant would imply continuing cause of action, on the strength of which we find complaint is not barred by limitation. It is not in dispute that a policy of insurance bearing No. 781177961 was issued on the life of one K. Bhaskaran for a sum assured of Rs. 50,000/- with risk commencing from 25.03.1995 and for a term of 20 years, in consideration of the proposal for insurance dated 14.03.1995. It is also not in dispute that the life assured Bhaskaran had named Smt. A. Lalitha his wife as the nominee under the policy as per Sec. 39 of the Insurance Act, and that Smt. A. Lalitha had informed the 2nd opposite party about the death of the life assured K. Bhaskaran as happened on 07.06.1996 due to suicide by hanging. Submission by the complainant is that complainant being his wife and also as the nominee started taking steps to claim the policy amount through various communications and the claim form was duly submitted which was repudiated by the 2nd opposite party. As per Ext. D5 repudiation letter dated 25.08.1997, opposite parties have decided to repudiate all the liabilities under Ext.D2 policy on account of the deceased having withheld material information regarding his health at the time of effecting the assurance with opposite party. Submission by the opposite parties is that since the death of the life assured had happened within a short period after the issuance of the policy, an investigation in the matter was conducted and on investigation it was revealed that the life assured Bhaskaran was suffering from Dysuria and colic from 05.05.1994 and that he had taken treatment from PNM Hospital, Kattakkada, that the life assured Bhaskaran was referred to Medical College Hospital for further treatment. Opposite parties submit that the life assured Bhaskaran had not disclosed the said illness he was suffering, and the further reference to Medical College Hospital, while submitting his proposal for very specific questions in the proposal regarding his state of health. Ext. D1 is the copy of the proposal for insurance. As per Ext. D1 proposal, the life assured has to answer additional questions in connection with family history and personal history. Opposite parties submit that the claim was repudiated on account of the deceased having withheld material information regarding his health at the time of effecting the assurance with opposite parties. The relevant questions in the proposal for insurance and his answers for the same are as follows: Questions Answers II (a) During the last five years did you consult a medical practitioner for any ailment requiring treatment for more than a week? No. (b) Have you ever been admitted to any hospital or Nursing Home for general check up, observation, treatment or operation? No. (c) Have you remained absent from place of work on grounds of health during the last five years? No. (d) Are you suffering from or have you ever suffered from ailments pertaining to liver, stomach, head, lungs, kidney, brain or nervous system? No. (e) Are you suffering from or have you ever suffered from Diabetes, Tuberculosis, High Blood Pressure, Low Blood Pressure, Cancer, Epilepsy, Hernia, Hydrosele, Leprosy or any other disease? No. (f) Do you use or have you ever used alcoholic drinks, narcotics or any other things? No. (g) What has been your usual state of health? Good
Opposite parties submit that all the above stated answers are false in the light of Ext. X1 series in-patient record, out patient ticket, casualty ticket and certificate dated 05.11.1997. As per outpatient ticket dated 05.05.1994 issued by P.N.M Hospital, Mr. Bhaskaran (the life assured) was seen by Dr. Easaw on 05.05.1994 with complaints of dysuria-wants to pass urine frequently-renal stone etc. As per the certificate issued by Dr. George Varghese, PNM Hospital, it is seen that Mr. Bhaskaran was treated on 05.05.1994 with suspicion of renal stone and he was referred to Medical College Hospital, Trivandrum on the same day itself. As per the inpatient record and casualty/MLC ticket of the PNM Hospital, Mr. Bhaskaran was treated on 15.01.1996 with alcohol withdrawal symptoms. It is seen recorded in casualty ticket that Mr. Bhaskaran was a known alcoholic for past 15 years, stopped alcohol for past 5 days due to Epitascis. The in-patient record reveals the nature of treatment done by the hospital. Dr. G. Vijayan, Medical specialist and Neurologist, PNM Hospital has been examined by the opposite parties and cross examined by the complainant to substantiate the said Ext. X1 series in patient record, O.P ticket,casualty ticket and certificate dated 05.11.1997. In his examination in chief, Dr. Vijayan has deposed that on 15.01.1996 Mr. Bhaskaran gave history of alcoholism for 15 years and 5 days prior to admission to the hospital he stopped alcohol drinking, that he presented with drummer of the hands, hearing abnormal sounds, bleeding from nose, loss of sleep and appetite, that he was admitted and given treatment, that he was very restless and speech was incoherent that he was conscious at the time of admission, but subsequent days he became violent and incoherent stage, abusive and de-oriented, that he was also having hallusinations, all these are alcohol withdrawal symptoms. In his cross examination, on being asked, was it for alcoholic related treatment, that you treated him, Dr. Vijayan replied that the treatment was for alcoholic withdrawal symptoms. On a question that how did you come across that the patient was a known alcoholic for the past 15 years, witness has answered that this fact is available in the records by the doctor at casualty on 15.01.1996. Is Dr. Francis working there now? Doctor replied 'No'. When asked the witness about under whose advice the insured stopped taking alcohol for the past 5 days from the date of admission 15.01.1996; he has replied 'I don't know'. But it is mentioned that he has stopped due to expistascis (bleeding from nose). Complainant, in her cross examination, has deposed that “മകന് ജനിച്ച ശേഷമാണ് ഭര്ത്താവ് മദ്യപാനം തുടങ്ങിയത്. കാട്ടാക്കട PNM Hospital ലെ Dr. Vijayan-ന്റെ ചികിത്സയിലായിരുന്നു. കുടിക്കാതിരുന്നാല് ഭര്ത്താവിന് കയ്യും കാലും വിറയ്ക്കുമായിരുന്നു. അമിതമായി മദ്യപിച്ച് വയറുവേദന ഉണ്ടായി അല്ലേ PNM-ല് അഡ്മിററ് ചെയ്തത്? (Q) അതെ (A) മദ്യപാനം നിറുത്താന് വേണ്ടി de-addiction treatment നടത്തിയിരുന്നു. ഗുളികയും കഴിക്കുന്നുണ്ടായിരുന്നു. പക്ഷേ ആരും അറിയാതെ വീണ്ടും കുടിക്കുമായിരുന്നു.” It is evident from the statement of Dr. Vijayan, PNM Hospital, and deposition of the complainant as well as other documents like Ext. X1 series on the record, that the deceased insured was a known alcoholic and he was suffering from Dysuria before taking policy and the same was suppressed in the proposal form by the insured even though he was aware of the same. In so far as the filing of the proposal form is concerned, Mr. Bhaskaran was a businessman (conducting provisional store) as such it is reasonable to believe that he would have the minimum knowledge of these matters. Consequently it could not be believed that he had simply put his signatures on proposal form without understanding the contents of the relevant items. The submission by the complainant that the deceased never furnished any false particulars and all those were entered under the strict guidance and advice of the authorized agent of the corporation cannot be acceptable, since the agent who got the proposal form was an agent of the person seeking insurance policy. It is to be noticed that neither the agent nor the medical assistant who examined the insured at the time of taking of policy probed the matter in right earnest leaving many loopholes in the system. In this context we need to say that insurance contracts are “ubarima fides”and are founded upon against good faith. If any party fails to observe this utmost good faith, the contract may be avoided by the other. This legal proposition has been reiterated time and again by the Supreme Court as well as various High Courts. In this case there is material to show that that non-disclosure was related to material facts which was required to be answered correctly and insured was aware of the consequence of making misstatements of facts. It is to be noted that not only the insured had given wrong answers to the questions but a declaration was also given by the insured that no untrue averment was made therein. The purpose for taking a policy of insurance is not very material. It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the insured. Proposal can be repudiated if a fraudulent act is discovered. The proposer must show that his intention was bonafide. It must appear from the face of the record. A deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law. In view of the above discussion we find LIC has proved beyond doubt that the insured had suppressed material facts while obtaining the policy. We do not feel that there is any error for taking any view different from the view taken by the opposite party in repudiation of claim. Deficiency in service not proved. In the result, complaint is dismissed. Parties are left to bear their own 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 30th day of May 2009.
G. SIVAPRASAD, President. BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
O.P. No. 120/2001 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Lalitha II COMPLAINANT'S DOCUMENTS :
P1 - Notice-cum-receipt of Policy No. 781177961 dated 25.03.1995 P2 - Discharge summary of Bhaskaran. P3 - Copy of letter dated 12.11.1997 issued by the complainant to the opposite party. P4 - Copy of Legal Notice dated 07.12.2000 to the opposite party by the complainant. P4(a) - Shippers copy dated 07.12.2000 with bar code 5538720. P4(b) - Shippers copy dated 07.12.2000 with bar code 5538719. P4(c) - POD Copy of receipt with bar code No. 5538719. P5 - Copy of Medical Examiner's Confidential Report dated 18.03.1995. P6 - Copy of receipt dated 14.03.1995. P7 - Copy of statement dated 14.03.1995. III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : D1 - Copy of proposal for insurance on own use dated 29.03.95 D2 - Copy of schedule with date of proposal dated 14.03.1995 D3 - Copy of FIR No. 160/96 dated 07.06.1996 D4 - Copy of deposition of witness in FIR No. 160/96 dated 07.06.1996 D5 - Copy of letter dated 25.08.1997 issued to the complainant by opposite party.
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
