KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL  NO: 98/2010

                              JUDGMENT DATED: 26-05-2011

PRESENT

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

SHRI.S. CHANDRAMOHAN NAIR                             : MEMBER

Tata AIG Insurance Company Ltd.,

Delphi B Wing, Second Floor,

Arcade Avenue, Hiranandani,                            : APPELLANT

Business Park, Powai,

Mumbai – 400 076.

(By Adv:Sri.A.G.Syamkumar)

          Vs.

1.      V.Surendran,

S/o Vasu, Vasu Nivas,

Neithala, Erattakulam Post,

Palakkad.

(R1 by Adv:Sri.Koliyakkode K.Rajeev)

                                                                   : RESPONDENTS

2.      P.Vijaya Menon,

S/o K.Krishnan Nair,

Perumbullissery, Cherpu,

Thrissur.

                                                JUDGMENT

JUSTICE SHRI. K.R. UDAYABHANU:  PRESIDENT

The appellants are the opposite parties/Tata AIG Life Insurance Company in CC.80/08 in the file of CDRF, Palakkad.  The appellants are under orders to pay a sum of Rs.2.lakhs being the assured sum together with Rs.5000/- as compensation and Rs.1000/- as cost.

2.      The case of the complainant is that he had availed the medicalim policy of the opposite party for the period from 1/11/2006 to 31/10/2007.  He was admitted at Palana Hospital, Palakkad on 14/8/2007 due to hypertension.   Later he was referred to KG Hospital, Coimbatore, wherein he underwent brain surgery.  The claim has been repudiated alleging that the complainant was suffering from hypertension, dyslipidemia and had a history of dispynea and was advised for angiogram prior to the date of application.  According to the complainant he was not suffering from the above disease earlier.

3.      The opposite parties have contended that the complainant answered as to the material facts regarding to his health in the proposal form in the negative.  The discharge summary of KG Hospital reveals that he was a chronic alchoholic for the past 20 years and heavy smoker.  The complainant has suppressed the above material facts.  The medical certificate shows that the complainant was suffering from hypertension for the past 2 years.  The same can be ascertained from the discharge summary issued from Palana Hospital.  The above discharge summary also shows that he was having accelerated hypertension with mild renal failure and was treated at local hospital.

4.      The evidence adduced consisted of the proof affidavit filed by the respective sides, Exts.A1 to A3, B1 to B9.

5.      The Forum has allowed the complaint mainly on the ground that the opposite parties have not taken steps to examine the signatory to the certificate issued and that it is not mentioned in the repudiation letter that he has suppressed that he was a chronic alchoholic and smoker for 20 years.  Of course the repudiation letter, Ext.A2 did not mention anything with respect to the suppression of the fact that he was a chronic alchoholic and smoker for the past 20 years.  Ext.A2 repudiation letter only mentions that he was suffering from hypertension, dyslipidemia and had a history of dispynea and was advised for angiogram prior to the application and the same was suppressed.  It is the settled position that the insurer is not entitled to raise new grounds other than the grounds mentioned in the repudiation letter in advance.  Hence only as to whether he was having hypertension, dyslipidemia and had a history of dispynea and was advised for angiogram prior to the application is relevant.  The evidence adduced would show that he was advised for angiogram.  All the same we find that Ext.B1 application form contains answers to the question as to whether he used to drink alchohol, whether he used to smoke in the negative.  The same is the answer with respect to whether he had raised cholesterol, high or low blood pressure and kidney disorder.  Ext.B5 discharge summary from KG Hospital, Coimbatore mentions that he was a known hyper tensive since 6 to 8 months on treatment and that he is a chronic smoker, 1 to 1 ½  packet per day for the past 20 years and chronic alchoholic taking 380 ml per day.  The complainant had right parietal intracranial haemorrhage and underwent right parietal cranioctomy and intracranial haemorrhage evacuation.  Ext.B5 case summary of Palana Institute of Medical Sciences, Palakkad mentions as the person having a history of hypertension, on irregular treatment, presented with acute onset of left hemiparesis.  It is dated 14/8/2007.  He was immediately taken therefrom to KG Hospital, Coimbatore.  Ext.B7 is a certificate issued from Palana Institute of Medical Sciences, wherein it is mentioned that he was having hypertension for two years.  Ext.B7 certificate is a certificate issued to Whomsoever It may Concern.  The same is issued by the Consultant Cardiologist but the same has not been proved properly.  We find that although the opposite parties could not exactly established that on the date of application, the complainant was having the alleged illness in view of the history mentioned in the treatment records it is evident that he would be certainly having such a physical condition that has resulted in the strocke that he sustained.  There is nothing to disbelieve the history mentioned in the discharge summary of KG Hospital that he was a chronic smoker for about 2 decades.  We find that the case file also contains the discharge summary from Amritha Institute of Medical Sciences ie Ext.B9 series.  It would show that he was admitted on 23/11/2006 and discharged on 24/11/2006.  It is mentioned therein that he was experiencing dyspnea on exertion class II since 9 months and was evaluated at local hospital and advised coronary angiogram for risk stratification and has been advised medication after undergoing relevant tests, like Electro Cardiogram and Echo Cardiogram and Dopler.  Of course the same is also subsequent to the date of the commencement of the policy.  Taking the entire circumstances into consideration we find that it would be reasonable to confine the eligible amount of the sum insured to Rs.75,000/-.  The order of the Forum is modified accordingly.  Opposite parties are directed to make the payment within 3 months from the date of receipt of this order failing which the complainant will be entitled for interest at 9% from 26/5/2011, the date of this order.

The appeal is allowed in part as above.

The office will forward the LCR along with the copy of this order to the Forum.

JUSTICE K.R. UDAYABHANU:  PRESIDENT

S. CHANDRAMOHAN NAIR : MEMBER

VL.