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  1. #151
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    FIRST APPEAL NO. :1888 OF 2005

    IN COMPLAINT CASE NO.:104 OF 2005

    DISTRICT CONSUMER FORUM :AHMEDNAGAR.

    Life Insurance Corporation of India,

    Through its Branch Manager,

    Aurangabad Gulmandi Branch No.98-G,

    Dwarka Region, Adalat Road,

    Aurangabad.


    Life Insurance Corporation of India,

    Zonal Manager,

    Through its Zonal Office,

    Yogakshema, Jeevan Bima Marg,

    Mumbai 21. …APPELLANT

    (Org.Opponent)

    VERSUS
    1. Smt.Manik Sudhakar Dahale,

    2. Smt. Deepali Chandrakant Dahale,

    3. Om Chandrakant Dahale,

    R/o Dattatraya Krupa,

    Near Jagtap Hospital,

    Kadu Lane, Nevasa,

    Tq.Nevasa, Dist.Ahmednagar. …RESPONDENTS

    (Org.Complainants)
    CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.

    Mrs.Uma S.Bora, Hon`ble Member.

    Present : Adv.Shri.S.R.Malani for appellant,

    Adv.Shri.Ravindra Bedre for respondents.

    O R A L O R D E R

    Per Shri.S.G.Deshmukh Hon`ble Presiding Judicial Member.


    1. The present appeal is filed by L.I.C. against the judgment and order dated 05.09.2005 in complaint case No. 104/05 passed by District Consumer Forum, Ahmednagar.



    2. Respondents/Org.Complainants case before the Forum is that, deceased Chandrakant Dahale had obtained policy bearing No.982162393 for sum assured of Rs.1,50,000/- on 28.3.2003. It is contended that Chandrakant died on 30.12.2003 at Newasa. Complainant No.1 is the mother, complainant No.2 is the widow and complainant No.3 is the son of deceased Chandrakant. It is contended that after death of Chandrakant complainant approached the appellant and preferred the claim. The claim was repudiated on the ground that at the time of submitting proposal form the necessary particulars about previous policies held by Chandrakant were not mentioned. It is contended that after receipt of said repudiation letter complainant filed application to Western Zonal Office, Mumbai. Zonal officer informed vide letter dated 17.12.2005 that the claim can not be considered. Thus complainant approached the Forum.



    3. Present appellant appeared before the Forum and resisted the claim. It is contended that policy holder deceased Chandrakant had not disclosed the particulars of previous insurance policy held by him at the time of submitting proposal for the policy in question. It is contended that question No.9 in the proposal form deals with particulars of all the life insurance policies held by proposer. Said question has been replied in ‘negative’ by proposer. It is contended that investigation was conducted by appellant officer and appellant came to know that he was holding other 3 policies;

    Policy No. Date of Plan & Term Sum

    Commencement Assured

    i) 952302183 28.03.1992 14/30 Rs.1,00,000/-

    ii)952307411 28.01.1998 93/25 Rs.1,00,000/-

    iii)952378130 28.10.2001 112/25 Rs.5,00,000/-.

    It is contended that as per rules, as the sum assured of the policies including present policy exceeds Rs.6,00,000/- appellant would have called for special report like ECG, CBC, ESR. In the instant case, if the policy holder would have disclosed earlier policies, appellant would have called special reports like ECG, CBC, ESR information about existing insurance policies was material which has been concealed by appellant. They have rightly repudiated the claim.



    4. The Forum below after going through the papers and hearing the parties allowed the complaint and directed appellant to pay Rs.1,50,000/- with interest @ 12% p.a. from the date of repudiation. Forum also directed that the amount of Rs.50,000/- and interest on it be paid to complainant No.1 i.e. respondent No.1 and Rs.50,000/- and interest on it be paid to respondent No.2 and Rs.50,000/- and interest on it be kept in F.D.R. in Nationalised Bank till respondent No.3 becomes major.



    5. Being aggrieved by the said judgment and order passed by the District Forum, Ahmednagar, L.I.C. came in appeal.



    6. Notices were issued to the appellant as well as respondents. Learned counsel Shri.S.R.Malani appeared on behalf of appellant whereas learned counsel Shri.Bedre appeared on behalf of respondents. We heard both the counsels. Learned counsel Shri.Malani submitted that deceased Chandrakant did not disclose the details about his earlier policies. Had he disclosed other existing policies appellant would have called special report of ECG, CBC, ESR as the total sum assured of all policies including present is more than Rs.6 lakhs. He submitted that appellant has rightly rejected the claim on the ground of non discloser of earlier policies. He submitted that Forum erred in concluding that underwriting chart showing the requirement of the special reports shows that if the policies are maturing before age of 65 years, these special reports are not required to be called by Corporation. According to him chart clearly shows, up to age 35 for the sum assured over Rs.6 lakhs to 15 lakhs ECG, CBC, ESR are the special reports to be called. Learned counsel submitted that foot note at the chart which is referred by District Forum clearly states that the requirement in the bracket are not required if the age of maturity is less than or equal to 65 years and age at entry is 45 years or less. According to him, learned Forum overlooked the vital suppression of earlier policies. Learned counsel Shri.Malani relied on ratio in judgment of National Commission in ‘Jashwanthiben Vallabhdas –Vs- LIC of India’ in Revision Petition No.1573 of 2005 dated 11.8.2005(NC). He also relied on ‘LIC –Vs- Roshan Lal Gupta’ in Revision Petition No.982 of 2004 decided on 19th Sept.2005(NC).



    7. On the other hand, learned counsel Shri.Bedre fully supported the judgment and order passed by the Forum. Learned counsel submitted that Forum has rightly considered that non discloser of earlier policies in the proposal form is not material suppression.



    8. We perused the papers and gave our anxious thoughts to the arguments advanced by both the counsels. On perusal of papers it is apparent that deceased had obtained policy under plan & term 112-25, bearing No.952378130 of Rs.5 lakhs on 28.10.2001. He had also obtained policy under plan & term 93-25 bearing No.952307411 of Rs.1,00,000/- and policy under plan & term 14-30 bearing No.952302183 for Rs.1,00,000/-. It is also apparent that policy holder has answered question No.9 in negative which deals with all life insurance policies held by proposer. As per rules as sum assured of policies exceeds Rs.6,00,000/- LIC would have called special report like ECG, CBC, ESR, had life assured disclosed other existing policies. Principle of utmost good faith was not observed by deceased while submitting proposal. The ratio in Roshanlal`s case is squarely applicable in the instant case. Deceased did not stick to the principle by showing utmost good faith while submitting proposal. Policy was obtained on 28.3.2002 and he died on 30.12.2003. As per provision in Section 45 of Insurance Act 1938 if the claim under the policy occurs within two years from the date of commencement insurer is not required to prove materiality & fraud. It is sufficient ground for the insurer that the claim is based on misrepresentation. Appellant had rightly repudiated the claim in terms of Section 45 of ‘Insurance Act 1938’. Forum did not consider this aspect and erred in allowing the complaint. We are inclined to quash and set aside the judgment and order passed by the Forum. Accordingly we pass the following order.

    O R D E R

    1. Appeal is allowed.

    2. The impugned judgment and order passed by the Forum is hereby quashed and set aside.

    3. Complaint stands dismissed.

    4. No order as to cost.

    5. Copies of the judgment be issued to both the parties.

  2. #152
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    D.F.Case No.18/2008
    Complainant: Santosh Hore,

    Baidyadanga, P.O.-Rasulpur,

    P.S.-Memari, Dist.-Burdwan

    VERSUS

    Opposite Party:1. The Branch Manager,

    Life Insurance Corporation of India,

    Burdwan Branch-I,

    G.T.Road, Burdwan, Dist.-Burdwan

    2. The Manager,

    The Pranabananda Co-operative Bank Ltd.,

    at Sita Sadan, 63 R.B.Ghosh Road, Burdwan.


    Present : Hon’ble President: Sri Tushar Kanti Paladhi

    Hon’ble Member : Smt. Jharna Majumdar

    Hon’ble Member : Sri Ajit Kr. Basu


    Appeared for the Complainant: Ld. Advocate, Sourav Kr. Mitra.

    Appeared for the Opposite Party No.1: Ld. Advocate, Ahibhusan De.

    Appeared for the Opposite Party No. 2: Ld. Advocate, Soma Mukhopadhyay
    Date of delivery:09/11/2009
    JUDGEMENT

    This is a case U/S 12 of C.P. Act, alleging deficiency in service against O.P. Life Insurance Corporation of India, and praying for giving direction for payment of the assured money along with interest to the complainant.

    The complainant was a holder of a policy of O.P. Life Insurance Corporation of India, bearing No.460588841 and he used to pay the premium on regular basis. The complainant under some compelling circumstances assigned the said policy as security against a loan of his son namely at Pronobananda Cooperative Credit Society, O.P. No.2. The office of O.P. No.2 closed in the year 1999. The policy as stated above is in the custody of O.P. No.2. The said policy was matured on February, 2006. The O.P., Life Insurance Corporation of India is not willing to pay the amount to the complainant. The complainant served a legal notice upon O.P. but got no valid answer. Hence, this case.

    O.P. LICI contests this case by filing written statement, stating that unless or until the certificate is handed over to LICI, the maturity money cannot be given.

    Points for consideration in this case are:-

    1. Whether there is deficiency in service on the part of O.P. LICI?

    2. Whether the complainant is entitled to get relief as prayed for?

    FINDING WITH REASONS

    Admittedly, the complainant is a policy holder, being policy No. 460588841 of LICI. Admittedly, the policy was matured in February, 2006. The certificate of the policy has been assigned against a loan of the complainant’s son at Pronobananda Cooperative Credit Society of Burdwan. The said certificate is now in the custody of that Cooperative Society. The Society is not coming to contradict such. The Forum is of the view that unless or until the certificate of this policy is placed before O.P. LICI, the assured money cannot be give to the complainant by LICI. Under above circumstances, O.P., Pronobananda Cooperative Credit Society may be directed to hand over the said certificate to the complainant upon bond. The O.P., LICI may be directed to make payment of the maturity money to the complainant upon submission of the policy certificate by the complainant. Thus the complaint case succeeds. C.F. paid is sufficient. Hence,

    ORDERED

    that the case be allowed on contest against O.P. No.1 and exparte against O.P. No.2. The complainant will furnish a bond, stating that if the loan money is not yet fully paid, he will make payment of the same to the O.P. Cooperative Society. Upon getting such bond O.P. No.2 will hand over the policy certificate in question to the complainant, who will produce such before LICI. The LICI will make payment of the maturity money within one month from this date of order.

    Dictated and corrected by me.

  3. #153
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    D.F.Case No.167/2007
    Complainant: Mira Majumdar,

    W/o.Sushil Kr. Majumdar,

    3 number of Shankharipukur,

    P.O.-Sripally Town,

    P.S. & Dist.-Burdwan.
    VERSUS
    Opposite Party:1. The Branch Manager,

    Life Insurance Corporation of India,

    Burdwan Branch-I,

    G.T.Road, Burdwan, Dist.-Burdwan

    2. The Manager,

    The Pranabananda Co-operative Bank Ltd.,

    at Sita Sadan, 63 R.B.Ghosh Road, Burdwan.

    Present : Hon’ble President: Sri Tushar Kanti Paladhi

    Hon’ble Member : Smt. Jharna Majumdar

    Hon’ble Member : Sri Ajit Kr. Basu

    Appeared for the Complainant: Ld. Advocate, Sourav Kr. Mitra.

    Appeared for the Opposite Party No.1: Ld. Advocate, Ahibhusan De.

    Appeared for the Opposite Party No. 2: Ld. Advocate, Soma Mukhopadhyay
    Date of delivery:09/11/2009

    JUDGEMENT
    This is a case U/S 12 of C.P. Act, alleging deficiency in service against O.P. Life Insurance Corporation of India, and praying for giving direction for payment of the assured money along with interest to the complainant.

    The complainant was a holder of a policy of O.P. Life Insurance Corporation of India, bearing No.468492207 and she used to pay the premium on regular basis. The complainant under some compelling circumstances assigned the said policy as security against a loan of her son namely Nemai Majumder at Pronobananda Cooperative Credit Society, O.P. No.2. The office of O.P. No.2 closed in the year 1999. The policy as stated above is in the custody of O.P. No.2. the said policy was matured on March-2007. The O.P., Life Insurance Corporation of India is not willing to pay the amount to the complainant. The complainant served a legal notice upon O.P. but got no valid answer. Hence, this case.

    O.P. LICI contests this case by filing written statement, stating that unless or until the certificate is handed over to LICI, the maturity money cannot be given.

    Points for consideration in this case are:-

    1. Whether there is deficiency in service on the part of O.P. LICI?

    2. Whether the complainant is entitled to get relief as prayed for?

    FINDING WITH REASONS

    Admittedly, the complainant is a policy holder, being policy No. 468492207 of LICI. Admittedly, the policy was matured in March-2007. The certificate of the policy has been assigned against a loan of the complainant’s son at Pronobananda Cooperative Credit Society of Burdwan. The said certificate is now in the custody of that Cooperative Society. The Society is not coming to contradict such. The Forum is of the view that unless or until the certificate of this policy is placed before O.P. LICI, the assured money cannot be give to the complainant by LICI. Under above circumstances, O.P., Pronobananda Cooperative Credit Society may be directed to hand over the said certificate to the complainant upon bond. The O.P., LICI may be directed to make payment of the maturity money to the complainant upon submission of the policy certificate by the complainant. Thus the complaint case succeeds. C.F. paid is sufficient. Hence,

    ORDERED

    that the case be allowed on contest against O.P. No.1 and exparte against O.P. No.2. The complainant will furnish a bond, stating that if the loan money is not yet fully paid, he will make payment of the same to the O.P. Cooperative Society. Upon getting such bond O.P. No.2 will hand over the policy certificate in question to the complainant, who will produce such before LICI. The LICI will make payment of the maturity money within one month from this date of order. Let a certified copy of this judgement be sent to the address of O.P. No.2 by registered post.



    Dictated and corrected by me.

  4. #154
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    C.C.NO. 108 OF 2009

    Sudip Majumder

    Charkhairamari,

    P.O. & P.S. Balagarh,

    Dist.Hooghly. …. Petitioner

    -vs-

    l. The Life Insurance Corporation of India,

    having its Divisional office : Howrah

    The Divisional Manager,

    16, Hare Street,

    Kolkata-700 001
    2. The Life Insurance Corporation

    of India, Santasila Market, 2nd floor,

    in front of S.S.High School,

    (Pandua), P.O. & P.S.Pandua,

    Dist.Hooghly.


    Present : D.K.Basu, President

    S.Basu : Member

    R.Roychowdhury Malakar : Member

    Order no. 06. dated 23.11.09.



    The fact of the petitioner’s case in brief is as follows :

    One Sudip Majumder, the nominee of the deceased Pradip Majumder has filed the instant case against the Op no.l, the Life Insurance Corporation of India, having its Divisional office at Howrah and oP no.2 Life Insurance Corporation of India, Santasila Market, 2nd floor, 2nd floor, in front of S.S.High School (Pandua), P.O. & P.S.Pandua, Dist.Hooghly alleging that his elder brother Pradip Majumder obtained an Insurance policy through the agent Sumanta Mondal to the tune of Rs.2.0 lakhs on 5.10.05 vide policy no. 436646334 which remained valid upto 5.10.2024. He also paid premium on 5.10.2005, 6.10.2006 and next premium was due on 10.10.2007. Sri Pradip Majumder committed suicide on 13.12.2006 by taking poison. After his demise an UD case was started at Chinsurah P.S. vide U.D. case no. 352 of 2006 dated 13.12.2006 and after investigation the final report was submitted on 25.4.2008 stating the brief facts . At the time of receiving the policy Pradip Majumder had a business for supplying jute and his annual income was Rs.48000/- from that business. After preferring claim by the complainant the OP no.2 has repudiated the claim on 20.2.2009 alleging that the petitioner falsely represented in his claim from that he had business of jute supply and annual income of Rs.48000/-. Thus suppression of material fact according to Op no.1 his claim was repudiated. Being aggrieved by, the order of the Op no.1, the complainant has filed the instant case with the prayer to pass an order directing the OP to make payment of Rs.2.0 lakhs with 18% interest from the date of death of insured and also litigation cost of Rs.3,000/- and anyother relief.



    The oPs by filing a written version has contested this case denying the material averments of the complaint contending inter alia that Pradip Majumder took insurance policy vide number 436646334 on 5.10.05 for a sum of Rs.2.0 lakhs on the basis of the proposal form duly filled up and submitted by him on 5.10.05. At that time, he wrote present occupation, business exact nature of duties jute supplier, annual income Rs.48000/-, source of income business. Sri Sudip Majumder informed the Ops about the death of life assured Pradip Majumder and claimed the policy money after filling up the claim forms along with necessary certificates. On scrutiny it revealed that Pradip Majumder withheld some material facts in the proposal form regarding his annual occupation and annual income which he knew to be not true and the facts were known to him. From the letter no. 469/BSS(1) DATED 15.12.2008 and signed by Biswasuk Sevashram Sangha that the life assured Pradip Majumder was a student there and he had no earning of his own. As the declaration, in the proposal form of the deceased was wrong, pursuant to the verdict of the Apex court in AIR 2008 at page 424 the claim was repudiated and the case is liable to be dismissed.



    In view of the above facts the following issues can be taken into account for proper adjudication.

    1) Whether the deceased during his life time at the time of taking policy suppressed the material facts ?

    2) Whether the complainant is entitled to get relief as prayed for ?



    FINDINGS WITH REASONS:

    Both the points are taken up together for the sake convenience and also for the purpose of needless repetitions.

    It is admitted fact that the deceased Pradip Majumder obtained the policy to the tune of Rs.2.0 lakhs during his life time. It is also admitted fact that he committed suicide and Unnatural Death case at the Chinsurah P.S. was registered and after due investigation Final report was submitted. It is also admitted fact that the complainant preferred an appeal and the Op repudiated the claim on 20.2.2009 on the allegation that the insured suppressed the material fact at the time of obtaining policy.



    Perused the Xerox copy of the certificate issued by Biswasuk Sevashram Sangha on 15.12.2008 which transpires that Pradip Majumder was a student in their Chatrabas. He was mentally normal and earnless boy. This certificate does not disclose for what period he was student and he resided thereon. The death certificate clearly transpires that at the time of his death his age was 21 years. It is not clear from the above cited certificate whether he was the student at the time of his death or at the time of taking policy at that Sevashram Sangha or not. As the certificate does not reveal that during obtaining the policy i.e. at the age about 20 years he was the student at that religious Sangha, the Op must have to prove that deceased Pradip Majumder was the student at the time of his death. Pradip Majumder in his claim form for obtaining policy as stated that at the time of obtaining of policy he used to deal in jute and his income was Rs.48000/- per year. As Biswasuk Sevashram Sangha has not stated the period of Pradip Majumder as student in that Sevashram Sangha , it creates doubt in the mind of a prudent man whether he was actually the student at the time of his obtaining policy or not.

    It is admitted fact that if there is any doubt on any question then the benefit will be placed on the side of the beneficiary.

    The only allegation of the Op that he suppressed the material facts at the time of obtaining the policy. It is the cardinal principle that he who avers something onus lies upon him to prove that. Thus the averment that Pradip Majumder had no income at that time and he had no business must have to prove by the oP. But in the instant case there is no such proof which helps to conclude that Pradip Majumder had no income or he had no business as alleged.

    From the written version of the oP it is crystal clear that that the Ops have repudiated the claim on the plea that the deceased Pradip Majumder had suppressed some material facts which the OP has failed to prove that fact. The letter issued by Biswasuk Sevashram Sangha is the only document on the hand of the OP , by which the OP has repudiated the claim of the complainant. We have also mentioned that letter issued by Biswasuk Sevashram Sangha has not stated for what period he was the student at that Sangha. Even the Op has not produced the concerned Register from that Sangha to show that the insured was the student of that Sangha at the time of obtaining policy and he had no income or business.

    In view of the above facts there creates doubt in the mind of a prudent man as to the student of the said Sangha. It is settled principle that if any doubt is created then the benefit of doubt will be placed towards the beneficiary.

    Considering the above facts we are of opinion that the oP has failed to substantiate the averment of suppression of facts. On the other hand, we find that repudiation of the claim of the complainant without cogent reason is no doubt deficiency in service. Thus the case succeeds.

    Hence it is Ordered

    That the instant case is allowed on contest with cost of Rs.2000/-. The Ops are directed either jointly or severally to pay the insured amount of Rs.2.0 lakhs to the complainant with interest @ 8% p.a. from the date of filing of this case i.e. on and from 30.7.2009 till today. The Ops either jointly or severally are further directed to pay Rs.2.0 lakhs (Rupees two lakhs) with interest @ 8% and Rs.2000.00 (Rupees two thousand) as cost to the complainant within 40 (forty) days from the date of this order, failing which the entire amount will accrue further interest @ 8% per annum till the date of making payment from this date.

    Let a copy of this order be handed over to the parties free of cost.

  5. #155
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    Default lic of india

    Consumer Complaint No
    :
    976 of 2009

    Date of Institution
    :
    14.07.2009

    Date of Decision
    :
    19.11.2009
    Rohit Garg, aged 28 years, S/o Sh. Pawan Kumar Garg, R/o H.No. 1712, Sector 15, Panchkula.

    ….…Complainant

    V E R S U S

    HDFC Standard Life Insurance Co. Ltd., SCO No. 139-142, Sector 9-C, Madhya Marg, Chandigarh, through its Branch Manager.

    .…..Opposite Party

    CORAM: SH.JAGROOP SINGH MAHAL PRESIDENT

    SH.SIDDHESHWAR SHARMA MEMBER

    DR.(MRS) MADHU BEHL MEMBER

    Argued by: Mrs.Anurag Goyal, Adv. for Complainant.

    Sh.Aman Bansal, Adv. for OP.

    PER SH.JAGROOP SINGH MAHAL, PRESIDENT

    Concisely put, Smt. Neena Rani, mother of the Complainant purchased a medical insurance policy under HDFC Critical Care Plan by paying a premium of Rs.3400/-. It was alleged that on account of her illness, she was admitted in Alchemist Hospital on 4.1.2009, where it was detected that she was suffering from Pneumonia. When her condition did not improve, she was shifted to PGI, where she breathed her last on 11.1.2009. The OP was duly informed about the same, supported by all the relevant documents with a request to do the needful, but to his utter surprise, the OP refunded the premium of Rs.3400/-. He immediately approached the OP to know the reason, but was told that since the medical was not submitted, so Policy was not issued and it was not their liability to clear the claim. Hence this complaint, alleging that the aforesaid acts of the OP amount to deficiency in service and unfair trade practice.

    2] Notice of the complaint was sent to OP seeking their version of the case.

    3] In their written reply, the OP did not dispute the factual matrix of the case. It was pleaded that the proposal form was never accepted by the OP for want of medical examination. Mere collection of the amount of the premium did not signify that there was acceptance of proposal. Furthermore, as per the Critical Plan also, the plan had a waiting period of 180 days from the date of inception or issuance of policy or revival whichever is less. No claim shall be paid during this waiting period unless the claim arises due to accidental causes. The claim of the Complainant was dismissed as the proposed life assured submitted the application/ proposal form on 24.10.2008 and she was to be medically examined by the authorized medical examiner of the Company, for which purpose even a letter was sent to her, but she failed to comply with the aforesaid requirement. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

    4] Parties led evidence in support of their contentions.

    5] We have heard the learned counsel for the parties and have also perused the record.

    6] The contention of the complainant is that after receiving the premium the OP did not send the policy and, therefore, it will amount to acceptance of application for issuance of the insurance policy. In support of his contention he has referred to the case of Oriental Insurance Co. Ltd. Vs. Dr. Mahendra Kumar Saraf-III (2001) CPJ 504 and Life Insurance Corporation of India & Anr. Vs. Anoop Kumar & Anr.-2003(3) CLT 554. As against it, the OP have referred to the letter dated 11.11.2008 (Annexure R-2) vide which the deceased was asked to get her medical examination etc. conducted and that the policy would be issued only thereafter. It is alleged by the complainant that she never received this letter and it has been fabricated subsequently to justify the delay in issuing the policy. We, however, do not find any merit in this contention of the complainant. In case of insurance policies, the medical examination is got conducted by the OP and, therefore, if they chose to get it done, no fault can be found with the OP. This fact is also corroborated from the conduct of the OP because they had not issued the policy so far and, therefore, it cannot be said if the medical examination had been waived.

    7] In the absence of the policy, no contract can be said to have come into being between the parties and, therefore, the complainant would not be entitled to claim the compensation amount.

    8] Even if the contention of the complainant is accepted to be correct and we presume that a policy was issued to the life assured, even then the complainant is not entitled to claim any amount. Annexure R-1 are the terms and conditions of the critical care plan policy and condition No.(D) provides as follows :-

    “D. Waiting period. This plan has a waiting period of 180 days from the date of inception or issue of policy or revival whichever is later. No claim will be paid during this waiting period unless the claim arises due to accidental causes.”

    9] In the present case, the first premium was paid by the deceased on 6.11.2008 whereas she is alleged to have died on 11.1.2009 after about two months. However, in view of terms and condition D of the insurance policy, no compensation for the death was payable during the period of 180 days from the date of inception of the policy. Viewed from this angle also, the complainant is not entitled to claim the said amount of compensation.

    10] The OP have already refunded the amount of Rs.3,400/- to the complainant on 21.4.2009. They retained this amount for the period from 6.11.2008 to 21.4.2009 and did not even pay interest on the said amount. We are of the opinion that the OP should pay damages @9% per annum on the amount of Rs.3,400/- for the period from 6.11.2008 to 21.4.2009 alongwith litigation costs of Rs.2,200/-. We order accordingly. The aforesaid amount be paid by the OP within thirty days of the receipt of copy of the order failing which the amount shall be paid alongwith penal interest @ 12% per annum since the filing of the present complaint i.e. 14.7.20009 till actual payment to the complainant.

    Certified copies of this order be sent to the parties free of charge. The file be consigned.

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    Consumer Complaint No.143/07

    Date of presentation: 31.5.2007

    Date of decision: 30.11.2009
    Smt. Sandhya Rastogi wife of late Sh. Virender Kumar, resident of H.No.677, Purana Charri Road, K.B. Dharamshala, Tehsil Dharamshala, District Kangra

    Complainant
    Versus
    1. Life Insurance Corporation of India, through it’s Branch Manager, Jeevan Jyoti Opposite War Memorial Civil Lines, Dharamshala, District Kangra (HP)

    Opposite parties

    Complaint under section 12 of the Consumer Protection Act, 1986

    PRESIDENT: R.K.MITTAL

    MEMBER: PARDEEP DOGRA

    For the complainant: Sh. Rahul Gupta, Advocate

    For O.P: Sh. Rajeshwar Sapeya, Advocate

    R.K.MITTAL, PRESIDENT (ORAL)

    The brief facts of the complaint, as alleged are that Sh. Virender Kumar, (husband of the complainant) was having two Insurance Polices Nos. 150872266, and 15035391, with the opposite party, and he had been regularly paying the premiums of both these Insurance Polices. It is alleged that both the Insurance Policies, held by her husband Sh. Virender Kumar, (herein-in-after referred to as deceased) were stated to be accidental Policies.

    It is alleged that the deceased alongwith his family (including the complainant) was on his way to Udaipur on 30.8.2006, in his Alto Car bearing No.HP-39-A-5225 from Delhi to Udaipur. A truck came from the opposite side near Dev Garh (Udaipur) in Rajasthan. However, the deceased could not control his car, and had met with an accident on the night of 30.8.2006, round about 2.30 a.m. near Dev Garh.

    All the family members of the deceased had got injured in this accident, and they were shifted to RNT Medical College, and Maharana Bhupal Government Hospital at Udaipur. The deceased was admitted in this hospital on 31.8.2009 vide registration No.33007, Ward No.34, Bed No.19 with the history of Road Traffic Accident. Although, the other family members of the deceased were also admitted in the same hospital, but very shortly, they were discharged from the hospital, after giving the medical treatment. Since, the condition of the deceased was very critical, so on the request of the complainant; he was discharged on 1.9.2006, and was taken to Delhi, where, he was admitted in Jeevan Jyoti Clinic, and Hospital Delhi, from where he was referred to Fortis Hospital Noida on 2.9.06 at 10.30 P.M.

    It is alleged that the deceased had died on the way from Jeevan Jyoti Clinic, and Hospital upto Fortis Hospital Noida. It is alleged that the complainant had submitted the claim papers after completing all the formalities for getting the claim from the opposite party. The matter was processed/investigated by the opposite party, and the claim to the tune of Rs.3,27,800/- was given to the complainant under Policy No.150353919, and further claim of Rs.45525/- was also given to the complainant under Policy No.150872266, vide their letter dated 10.11.2006.

    It is alleged that the complainant was entitled to get accidental benefits under both the policies, but the opposite party did not release the said accidental benefits to her, for the reasons best known to them. It is alleged that by doing so, the opposite party has indulged ingot unfair trade practice, and they were deficient in rendering proper services to her. She has alleged that the opposite party has not considered her claim in a right prospective, and the accidental benefits, under both the Insurance Policies, to which, she was entitled, and it was wrongly denied by the opposite party. Hence, the complainant has sought the relief seeking directions to the opposite party to pay the accidental benefits of the aforesaid both the insurance Policies. She has also claimed compensation to the tune of Rs.50,000/-, for her mental agony, and harassment.

    2. The opposite party has contested this complaint by filing their reply on 4.10.2007, in which they have contended that the complete amount, as due, under both the Insurance Policies, has already been paid to the complainant, and now she is not entitled to any other amount under both these Insurance Policies. The opposite party has also contended that the complainant has not fulfilled the required conditions/requirements of getting the accidental benefits under the aforesaid both Insurance Policies, as per procedure, and their satisfaction. There is no solid proof on the file to prove the accidental death of the deceased. They have also contended that a manipulation has been managed by the complainant to get the accidental benefits, under the aforesaid Insurance Policies. They have contended that there is no deficiency in service on their part, and there is no unfair trade practice, so they have prayed for dismissal of the complaint with costs.

    3. The complainant has refuted the contentions of the opposite party, made in their reply, and she has re-asserted the facts/averments of the complaint, in her rejoinder, filed on 8.11.2007. From the pleadings of the parties, the following points were framed by this Forum for determination, on 6.11.2007:-

    1. Whether the Opposite party has committed deficiency in service, as alleged? OPC

    2. Whether the complaint is not maintainable, as alleged? OPOP

    3. Relief

    4. We have considered the arguments of Sh. Rahul Gupta, Advocate, learned counsel appearing on behalf of the complainant, and of Sh. Rajeshwar Sapeya, Advocate, learned counsel appearing on behalf of the opposite party, and we have also carefully gone through the case file, facts, and the evidence on record.

    5. For the reasons to be recorded hereinafter while discussing the points for determination, our findings on the aforesaid points are as under:-

    Point No.1: No

    Point No.2: Yes

    Relief: The complaint is dismissed as per operative part of the order.

    REASONS FOR FINDINGS

    POINTS No.1 and 2

    6. Since, both these points are inter-linked/interconnected, so in order to avoid repetition in discussion, and for the sake of brevity, both the parties, are taken up together for determination. During the course of arguments, the learned counsel for the complainant has admitted that both the Insurance Policies taken by the deceased, were having clause of “Accidental Benefits”. It is also an admitted fact that the original value of both these Insurance Policies, alongwith their accrual benefits has already been paid to the complainant. The only dispute remains that whether under both these insurance Policies, the complainant is also entitled to get the accidental benefits? If the complainant is able to prove by leading cogent, convincing, strong, reliable, and satisfactory evidence to our entire satisfaction that the deceased had died due to injuries in the road accident, then certainly, the complainant is entitled to get accidental benefits of both these insurance policies.

    7. Now, we proceed further to consider how Sh. Varinder Rastogi, had died. The fact is not denied by the opposite party that the Alto Car bearing registration No.HP-39-A-5225, being driven by the deceased, had met with an accident on the early morning of 31.8.2006, round about 2.30 am, near Deg Garh (Udaipur). This fact is also not denied by the opposite party that immediately after the accident, the deceased alongwith his family members, was shifted to RNT Medical College, and “Maharana Bhupal Government Hospital, at Udaipur”. It is also not disputed by the opposite party that on the request of the complainant, the deceased in the injured condition was taken from RNT Medical College, and “Maharana Bhupal Government Hospital, at Udaipur” to Delhi. It is also not disputed by the opposite party that the deceased in the injured condition, was admitted in the Jeevan Jyoti Clinic, and Hospital-Delhi.

    8. During the course of arguments, the learned counsel for the complainant has stated at bar, that they had submitted the original documents of the medical treatment of the deceased, in the office of the opposite party, for getting the claim, and they are having only the photo copies with them. He has further stated that for want of availability of the original record, they have filed un-attested photo copies of the record of medical treatment of the deceased, alongwith this complaint, filed before this Forum.

    9. However, for the sake of convenience, and fair decision in the case, we also consider the photo copies of the record of medical treatment of the deceased Sh. Varinder Rastogi. We have perused the photo copy of admit-cum-discharge certificate of the deceased issued by Jeevan Jyoti Clinic, and Hospital-Delhi. It looks tht it is not a big hospital. It is a sort of clinic only. When the patient/deceased Sh. Varinder Rastogi, in seriously injured condition in the road accident, is stated to be admitted was shifted from the Government Hospital at Udaipur, we fail to understand that why the complainant had got admitted her seriously injured husband in a small clinic. No qualification with any specialty of the doctor is mentioned on this admit card-cum-discharge slip. Moreover, from the perusal of un-attested photo copy of the death certificate, issued by the Fortis Hospital, Noida, it is revealed out that the deceased was brought dead in the said hospital. There is no cogent, convincing, strong, and reliable evidence on the file, at all, to show that the deceased had died only, due to the injuries received by him in the aforesaid road accident. The chances of failure of his heart, or some other disease, cannot be ruled out, at all. We have considered the rulings cited by the learned counsel for the complainant. The learned counsel for the complainant has cited a ruling I (1993) ACC-308 titled as Baburao Venkatrao Kotgire and another Versus Venkati Jaiwanta Thote and others, of the Hon’ble Bombay High Court. In this ruling, their Lordship has held that in the absence of post mortem report, cause of death can be attributed to the accident. Admittedly, in the present case, neither there is any F.I.R. lodged by any friend/relative of the deceased, in the Police Station of the surrounding area, about the alleged accident, nor the post mortem of the deceased was got done by the complainant, or her relatives, for the reasons best known to them. The learned counsel for the complainant, has further cited another ruling 1989(2)Sim.L.C.-298, titled as Shri Brestu Ram Versus Shri Anant Ram, and others, in which the Hon’ble justice Bhawani Singh, Judge has held that even if no report to the police was made, no adverse inference can be drawn out of this failure. His Lordship was dealing with a civil case in this ruling, in which His Lordship has observed that the Tribunal had drawn certain inferences, as if it was trying a criminal case. It was further held that such a course is not available to the Tribunal. No doubt, this Forum is neither deciding a criminal case, nor a civil case. It is a complaint under the Consumer Protection Act. We are satisfied that in the present case, neither there is any F.I.R. of the alleged accident, nor there is any post mortem report of the deceased Sh. Varinder Rastogi, on the file to show that he had died due to the injuries received by him in the aforesaid admitted accident. Since, there is no iota of evidence on the file before us to prove that the death of the deceased had occurred only due to the injuries received in the aforesaid accident, so for want of evidence on the file, we are unable to hold that the deceased had died, only due to the injuries received him, n the aforesaid accident. Hence, the complainant is not entitled to claim accident benefits of the aforesaid Insurance Polices. Hence, point No.1 is answered in negative, and point no.2 is answered in affirmative.

    10. No other point has been argued or urged before us.

    Relief

    11. In view of our findings on points No.1 and above, the complaint is dismissed leaving the parties to bear their own costs. The copy of this order be sent to the parties, free of costs, by posts, and the file after it’s due completion be consigned to the record-room.

  7. #157
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    Consumer Complaint No.144/08

    Date of presentation: 16.6.08

    Date of decision: 25.11.2009

    1. Sh. Parkash Chand son of Sh. Chanako Ram, and father of deceased Kuldeep Singh,

    2. Kailasho Devi wife of Sh. Parkash Chand, and mother of deceased Kuldeep Singh, both residents of village Kamnala PO Bhaleta, Tehsil Nurpur, District Kangra, HP

    Complainants
    Versus

    1. LIC of India, through it’s Divisional Manager, LIC of India, Divisional Office-Shimla, (HP)

    2. Branch Manager LIC of India, Branch Office Nurpur, District Kangra (HP)

    Opposite parties



    Complaint under section 12 of the Consumer Protection Act, 1986



    PRESIDENT: R.K.MITTAL

    MEMBER: SH.PARDEEP DOGRA



    For the complainant: Sh. Tippu Khan, Advocate

    For O.Ps: Sh. Atul Gupta, Advocate, vice Sh. R .R. Sharma, Advocate

    R.K.MITTAL, PRESIDENT (ORAL)

    ORDER

    The brief - facts of the complaint, as alleged are that one Sh. Kuldeep - Chand, (son of the complainants) had taken a Policy bearing No.152406115, for a sum of Rs.50,000/- from the opposite - party No.2, on 15.5.2001. Valid upto 15.5.2021. As per the terms, and conditions mentioned in clause 10-2b of the Insurance Policy, if a person dies - in an - accident, then his legal representatives, are entitled to get an additional – sum - equal to the sum assured. It is alleged that

    Sh. Kuldeep - Chand( hereinafter - referred to as life-assured), had died in an accident on 20.7.2004, at Jassur - Dhameta - Road, near village - Mahtoli, Tehsil Nurpur, District Kangra(HP). F.I.R. No.245/04, regarding the said - accident was registered with Police Station, Nurpur, for an offence under section 279/304-A of the Indian Penal Code, against the driver Sh. Surinder Singh of truck No.HP-38-A-6565. The post mortem of the deceased was conducted by the Doctor Sh. Ashutosh - Sharma Medical officer of civil Hospital Nurpur on 20.7.2004. The claim papers alongwith all the required - documents were submitted with the opposite - parties, but they had only sent a cheque of Rs.58228, to the - complainants.

    It is alleged by the complainants that they are also entitled to the payment of Rs.50,000/-, on - account of accidental benefits, with - interest @ 9% per - annum with effect from the date of death of the deceased i.e. 20.7.2004, till it’s final payment. They have also claimed compensation/damages to the tune of Rs.50,000/-, for their mental - agony, and harassment. They have also claimed litigation charges, because the opposite parties are stated to be deficient in rendering the proper - services to them.

    2. The opposite parties have contested this complaint by filing their - reply on 18.2.2008, in which they have contended that since there is no consumer - dispute, so, the present complaint is not maintainable. The complainants do not have any cause of action to file this - complaint. They are also estopped from filing this complaint, by their act, conduct, commissions, and omissions. They have contended that the complaint is false one. The life assured had taken the Insurance Policy with profits, for 20 years, which was to start with effect from 18.5.2001, and it was to mature on 15.5.2021.

    They have contended that the complainants have failed to produce the registration certification of the - scooter, and driving licence of the deceased before - them, despite number of requests/reminders. They have also contended that the deceased-life assured was driving the scooter, and had died on the spot, as the result of collusion of the scooter with the said - tralla/truck. They have contended that the registration - certificate of the scooter, and the driver - licence of the deceased were very vital - documents, for the settlement of the accidental - benefits. Since, the complainants had failed to produce the copies of the same, so the claim of the complainants qua the accidental benefits, could not be - settled. So, they have prayed for dismissal of the - complaint.

    3. We have considered the arguments of Sh. Tippu Khan, Advocate, learned counsel for the complainant, and of Sh. Atul - Gupta, Advocate vice Sh.R.R.Sharma, Advocate, learned counsel for the opposite parties, and we have also carefully gone through the case file, facts, and the evidence on the record.

    4. The complainant No.1 Sh. Parkash Chand, has fully supported, and corroborated the facts/averments of the - complaint, on - oath, in his affidavit Ex.CW-1. Annexure C-1, and

    C-2, are the copies of the payments of the premiums of the Insurance - Policy. Annexure C-3, is the photo - copy of the Insurance Policy of the deceased/life assured. Annexure C-4 is the photo - copy of the Award dated 1.10.2008, passed by the learned Motor Accident Claim Tribunal (I), Kangra at Dharamshala (HP), in which it is discussed that the driving - licence of the deceased was not - required, at - all. However, it is a fact that the deceased-life assured had died in an - accident. Under the terms and conditions of the Insurance - Policy, his legal - representatives/parents are entitled to get the accidental - benefits of the Insurance - Policy, purchased by the deceased-life - assured from the opposite parties.

    5. On the other - hand, Ex.OPW-1, is the affidavit of Sh. Vishwanath, Manager, on behalf of the opposite parties. Annexure RW-1, is the original – Insurance - Policy. Annexure RW-4, is the copy of the F.I.F. of the afore said accident.

    6. Admittedly, the deceased-life assured, had died in an accident of his scooter, with the tralla/truck bearing registration No.HP-38A-6565 on 20.7.2004, at village Mohtli, Tehsil Nurpur, District Kangra, so, the repudiation of the claim of the complainant by the opposite parties on the ground that they (complainants) had failed to supply the copy of the registration - certificate of the scooter, and the copy of the driving - licence of the deceased-life assured, is totally un-justified. Hence, it is crystal - clear that the opposite - parties have been - deficient in rendering the proper - services to the complainants. So, the present complaint deserves to be partly - allowed.

    7. Accordingly, it is partly - allowed. The opposite parties are directed jointly and severally to release the amount of Rs.50,000/-,on account of accidental - benefits, to the parents of the deceased - life - assured, alongwith - interest @ 9% per annum from the date of complaint, till it’s final - payment. Due to un-justified, and un-wanted act, and conduct of the opposite parties, the complainants have suffered mental agony, and harassment, so we assess Rs.5000/- as compensation, for their mental - agony, and harassment, and Rs.3000/-, as litigation costs of this complaint, which will be paid by the opposite parties, jointly and severally, to the complaints within 30 days after the receipt of copy of this - order. The copy of this - order be sent to the parties, free of costs, and the file after it’s due completion be consigned to the record-room.

  8. #158
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    Consumer Complaint No.33/2008.
    Date of institution : 26.02.2008.
    Date of decision : 30.11.2009.
    In the matter of :

    Shri Vinod Kumar son of Shri Kishore Chand, C/o Deepak Hosiery & Readymade Garments, Pirnigaha Road Una, District Una, H.P.
    … … … Complainant.
    Versus.
    1. The Life Insurance Corporation of India, Divisional Office Shimla, Bolock 14 & 15, SDA Complex Kasaumpti, Shimla through its Divisional Manager.
    2. The Branch Manager, Life Insurance Corporation of India, Branch Office Una, District Una, H.P.

    … … … Opposite parties.

    COMPLAINT UNDER SECTION 12 OF CONSUMER PROTECTION ACT, 1986.

    Before :-

    1. Shri D. D. Sharma : President.

    2. Shri Ajay Sharma : Member.

    3. Ms. Saroj Modgil : Member.
    For the complainant : Shri Rakesh Kumar, Advocate.

    For opposite parties : Shri V.K. Dharmani, Advocate.

    O R D E R

    ( Per Shri D.D. Sharma, President );

    Complainant Shri Vinod Kumar son of Shri Kishore Chand, C/o Deepak Hosiery & Readymade Garments, Pirnigaha Road Una, District Una, H.P. in his complaint under Section 12 of Consumer Protection Act, 1986 against the opposite parties- (1) The Life Insurance Corporation of India, Divisional Office Shimla, Bolock 14 & 15, SDA Complex Kasaumpti, Shimla through its Divisional Manager and (2) The Branch Manager, Life Insurance Corporation of India, Branch Office Una, District Una, H.P. has alleged that the nephew of the complainant namely Shri Vinay Kumar son of Shri Joginder Paul (hereinafter called as deceased ) had insured himself with the opposite parties vide policy No.150570333, dated 08.11.1996 in the sum of Rs.50,000/- and the complainant was nominee in the said policy and that the deceased paid the premium amount regularly till his death. That the date of maturity of policy is 08.11.2021. It is further alleged that on 09.11.2006 the deceased Shri Vinay Kumar was crossing the Railway line in Village Malahat to reach a temple on the other side of the track and due to darkness, he struck against the iron girder of the line and fell on the track and in the meantime, the DMU Amballa Churaru train arrived and the deceased was run over by the same and he died on the spot, but the police of Una Police Station which visited the place of occurrence after the accident did not record the facts of incident and with a view to avoid the registration and hazels of the case, the police wrongly recorded the fact that the deceased was suffering from epilepsy, whereas the death of Vinay Kumar was caused only due to accident, which is very much evident from the post mortem report No.192/06, dated 10.11.2006 conducted by the doctors in Regional Hospital Una. That the complainant has supplied for the insured sum alongwith other benefits under the policy to the opposite parties, but they have wrongly repudiated the claim by levelling vague objection of epilepsy vide letter dated 06.12.2007 reference No.7804, which act is illegal and arbitrary and amounts to deficiency in service and negligence on the part of opposite parties. The complainant has prayed for a direction to the opposite parties to make the payment of the sum assured amounting to Rs.50,000/- with interest and bonus and to pay Rs.10,000/- as compensation on account of harassment, mental agony and torture besides Rs.5000/- as cost of complaint.

    2. Notice of complaint was issued to the opposite parties to state its version of the case, who on appearance resisted and contested the complaint and raised preliminary objections in their joint reply that the complaint is not maintainable in the present form; that the complainant has not approached the Forum with clean hands; that the complainant himself has filled up in the claim form that the life assured died due to epileptic attack and the opposite parties have already paid the basic sum assured plus accrued bonus payable against the policy, but in view of the documents submitted and facts placed before the opposite parties, the complainant is not entitled to Double Accident Benefits; that the complaint is totally devoid of any merit; that the complainant is not a consumer as per Section 2 (d) of the Consumer Protection Act and that the complex question of facts are involved and as such, the complaint is triable by the Civil Court. On merit, it is admitted that the policy No.150570333 dated 08.11.1996 amounting to Rs.50,000/- was sold to Shri Vinay Kumar and it is alleged that the complainant had lodged death claim against the said policy and after processing the claim, the opposite parties have paid Rs.80,726/- i.e. Basic Sum Assured plus accrued bonus which was payable against the said policy. It is denied that Shri Vinay Kumar died due to darkness, but the complainant himself disclosed in the FIR as well as in the claim form that the life assured had suffered epileptic attack. That the documents were not supplied to the opposite parties and as such, the opposite parties reserve its right to controvert if anything adverse comes in the documents, however, after due application of mind, the Double Accident Benefits are declined being non-payable as per policy conditions. It is alleged that there is no deficiency in services on the part of opposite parties and as such, the complainant does not come within the definition of Consumer as envisaged in the Consumer Protection Act and thus, no question of causing mental agony, torture and harassment arises. The opposite parties have prayed for dismissal of complaint being devoid of merit. The reply is duly supported by affidavit of Shri Vishwa Nath Manager of opposite parties.

    3. In the rejoinder, the contents of reply filed on behalf of opposite parties have been controverted and that of complaint have been re-asserted.

    4. In support and to prove their respective contentions, the complainant relied on and tendered in evidence documents annexure C-2 to C-5 besides his affidavit annexure C-1 and the opposite parties relied on and tendered documents annexure R-2 to R-5 besides affidavit of Shri Vishwa Nath Manager of opposite parties annexure R-1.

    5. We have heard the learned counsel appearing for the parties and have perused the record of this case, carefully.

    6. Document annexure R-1 is affidavit of the complainant. Document annexure C-3 and R-4 are copies of Rapat Roznamcha dated 09/10.11.2006 of Police Post Railway Traffic Una. Document annexure C-4 is copy of post mortem report in respect of deceased Vinay Kumar. The opinion of Medical Officer reads as under:

    “Death has been caused due to crush injuries separating the upper and lower part of body from the middle of abdomen with injuries to internal organs of the body leading to severe hemorrhage with irreversible shock and is sufficient to cause in death in normal circumstances. All injuries are ante mortem in nature.”

    7. Document annexure C-5 is copy of letter dated 06.12.2007 vide which the complainant was informed that cause of death is due to disease and hence, the competent authority has regretted the DAB claim. Document annexure R-1 is affidavit of Shri Vishwa Nath, Manager of opposite parties. Document annexure R-2 is insurance policy. Document annexure R-3 is proposal form.

    8. On close scrutiny of complaint, reply filed on behalf of opposite parties, rejoinder filed and the documents relied on and tendered by the parties and after hearing the learned counsel for the parties, it emerges that the opposite parties have paid a sum of Rs.80,726/- as basic sum assured with accrued bonus. The case of the complainant is that the claim for DAB has been wrongly repudiated as per letter dated 06.12.2007 copy annexure C-5 and the stand of opposite parties is that the life assured died due to epileptic attack, so DAB is not payable.


    9. The learned counsel for the complainant relying on the authority of Hon’ble High Court of Himachal Pradesh in case titled as Life Insurance Corporation of India & Anr. Versus Shashi Sethi & Ors., reported as “2009 (2) Civil Court Cases 741 (H.P.)” has contended that the post-mortem report copy annexure C-4 and opinion of the Medical Officer do not disclose any abnormality in the internal organs of deceased, which may have been caused by any disease which had not been disclosed by the deceased and thus, there was no material suppression of facts and the deceased was in good health on the date when the proposal was accepted, otherwise there was no reason for the opposite parties to have sold the insurance policy in favour of the deceased.


    10. The post-mortem report copy annexure C-4 makes it abundantly clear that death has been caused due to crush injuries separating the upper and lower part of body from the middle of abdomen with injuries to internal organs of the body leading to severe hemorrhage with irreversible shock sufficient to cause death on normal circumstances and all the injuries are ante-mortem in nature caused within 24 hours. In view of the above facts and circumstances of the case and the authority supra, we are of the considered opinion that the complainant is entitled to the additional sum equal to the sum assured under the policy. Accordingly, we pass the following order;

    11. The opposite parties are ordered and directed to pay to the complainant an additional sum equal to the sum assured under the policy within interest at the rate of 9% per annum from the date of filing of complaint i.e. 26.02.2008 till realization besides litigation cost, which we assess at Rs.2000/-. The complaint stands allowed, accordingly. Certified copy of this order, be supplied to the parties, free of cost. The file after its due completion, be consigned to record room.

  9. #159
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    Consumer Complaint No: 41/2008

    Date of presentation: 22.04.2008

    Date of decision: 11/11/2009.


    Mr. Rajender Kumar, S/o Sh. Madho Ram,

    R/o Vill. Rampur Banjaran, Tehsil Paonta Sahib, Distt. Sirmour, H.P.

    … Complainant.

    Versus

    1 The Life Insurance Corporation of India,

    Shimla Division, Through its Divisional Manager,

    Shimla Division, Distt. Shimla, H.P.

    2. The Branch Manager,

    Branch Office Paonta Sahib,

    Distt. Sirmour, H.P.

    …Opposite Parties.


    For the complainant: Mr. A.A. Ansari, Advocate.

    For the Opposite Party: Mr. V.R. Chauhan, Advocate.

    O R D E R:

    Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, Smt. Anuradha Gupta, was holder of policy bearing No.151149075, for an amount of Rs.50,000/-, who died in P.G.I. Chandigarh, as she had been attacked by one Ram Prasad. After her death, the insurance claim was lodged with the OP-LIC, for indemnification, but the OP-LIC, instead of indemnifying the claim, repudiated the same. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Company, in not indemnifying the complainant, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

    2. The OP-LIC, besides raising preliminary objections, contended that the claim of the complainant was rightly repudiated by them as per terms and conditions of the policy, as contemplated in clause 4-B.They further contend that since the life assured by murdered, hence, the claim was not payable, as per the terms and conditions of the policy. Hence, it is contended that there was no deficiency in service on their part.

    3. Thereafter, the parties led evidence in the shape of affidavits/documents, in support of their respective rival contentions.

    4. We have heard the learned counsel for the parties and have thoroughly scanned the entire record of the case.

    5. The wife of the complainant was done to death by one Shri Ram Parsad. She said Ram Parsad, came to be convicted by the Learned Sessions Judge, Nahan, for murdering the deceased, who, had purchased, the, insurance cover, from the OP-LIC. The said fact, is, not controverted by the OP-LIC. However, the OP-LIC, excludes its liability, on, the strength of clause 4-B existing, in, the conditions accompanying the insurance cover, which excluded the liability of the OP-LIC, where, the, deceased meets her end by murder. Since, the deceased was done to death by a murderous attack on her body by one Ram Parsad, who came to be convicted by the learned Sessions Judge, Nahan. Obviously, in the light of clause 4-B existing, in, the terms and conditions of the policy, excluding, the, liability of the OP-LIC, where the deceased, is, murdered, resultantly, the repudiation of the claim, by the OP-LIC, is, within the parameters and ambit of the terms and conditions of the insurance policy.

    6. Hence, the complaint being without any substance, is, liable to be dismissed. Ordered accordingly. No order as to the costs. The learned counsel for the parties have undertaken to collect the certified copy of this order from the office. The file after due completion, be consigned to record room.

  10. #160
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    Complaint No. 23/12.1.2009.

    Date of order: 12.11.2009.

    1. Rasshmi widow of Sh. Raj Kamal alias Rajinder Om Pujara.
    2. Rummani aged about 17 years minor daughter of Sh. Raj Kamal alias Rajinder Om Pujara
    3. Rishabh aged about 16 years minor son of Sh. Raj Kamal alias Rajinder Om Pujara

    4. Sumedh aged about 11 years minor son of Sh. Raj Kamal alias Rajinder Om Pujara

    (minor complainants no.2 to 4 through their mother and natural guardian Smt. Rasshmi, complainant no.1)

    All residents of C/o Smt. Sita Devi, House No.141, Gali No.4, Wait Ganj, Opp. Dr. Ram Pal Jain, Ludhiana.

    (Complainants)
    Vs.

    1. Life Insurance Corporation of India, Amar Singh Palace, Sham Nagar, Ludhiana through its Branch Manager.

    2. Life Insurance Corporation of India, Jeevan Parkash Divisional Office Urban Estate, Phase-1, Dugri Ludhiana through its Senior Divisional Manager.

    (Opposite parities)

    COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

    Quorum:

    Sh. T.N. Vaidya, President.

    Sh. Rajesh Kumar, Member.
    Present:
    Sh. B.L. Saini Advocate for the complainant.

    Sh. M.S. Jassal Advocate for opposite parties.

    O R D E R

    T.N. VAIDYA, PRESIDENT:

    1. Sh. Raj Kamal alias Rajinder Om Pujara husband of complainant no.1 and father of minor complainants no.2 to 4, had taken on 9.3.2007, policy bearing no.300641663 from the opposite party, taking insurance from 28.12.2006. The policy holder Sh. Raj Kamal alias Rajinder Om Pujara fell ill when suffered from jaundice and taken to Suman Hospital, Model Town Ludhiana where remained admitted for about a week and thereafter referred to Nehru Hospital Post Graduate Institute of Medicate Education and research Chandigarh and remained admitted there from 20.6.2007 to 3.7.2007. He was diagnosed a case of Obstructive Jaundice, for which was treated. Thereafter, Sh. Raj Kamal alias Rajinder Om Pujara again fell ill, admitted in Bassi Hospital Pvt. Ltd. from 21.12.2007 and discharged on 2.1.2008. At that time also suffered ailment of Obstructive Jaundice and died on 3.1.2008. Claim under the policy was lodged. But opposite party wrongly and illegally repudiated the same vide letter dated 15.12.2008 on the grounds that deceased was suffering from diabetes, which information he suppressed while purchasing the policy. It is claimed that at the time of taking the policy, deceased was not aware that he was suffering from diabetes. His medical examination was also conducted by doctor of opposite party, who also took his blood test and was found not suffering from diabetes. So, the claim was wrongfully and illegally repudiated. Therefore, claimed that opposite party is liable to pay the insurance sum of Rs. 3,00,000/- besides compensation of Rs.1,00,000/-.

    2. Opposite party took objection qua maintainability of the complaint on the ground that the complainant never took up the matter before the Insurance Ombudsman. Contract of insurance is based on principles of uberrimafide i.e. utmost good faith. It is on the basis of information supplied by the applicant that opposite party decides to accept or decline the proposal. But proposer in the instant case, never disclosed that he was diabetic since 7 years. Such fact was disclosed by him for the first time when was admitted in PGI, Chandigarh on 20.6.2007 vide CR No. A102251. He had made incorrect statement while purchasing back dated policy, issued on 9.3.2007, commencing from 28.12.2006. Repudiation is justified and legal.

    3. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

    4. We have heard the arguments addressed by the ld. counsel for parties, gone through file, scanned the documents and the material on record.

    5. it is admitted that husband of the complainant got himself insured by filling the proposal form Ex.R.1 and sequal thereto policy Ex.R3 was issued in his favour on 9.3.2007, commencing from back date 28.12.2006. The claim after death of the policy holder Sh. Sh. Raj Kamal alias Rajinder Om Pujara was repudiated vide letter dated 15.12.2008 Ex.R.6. The ground taken was that the policy holder was diabetic since 7 years, which disease he had not disclosed while purchasing the policy from the back date.

    6. It is in such scenario food for thought whether repudiation of the claim is justified or not and diabetes would amount to ailment, which proposer withheld while purchasing the policy commencing from back date.

    7. Before we come to discuss the point would like to say that at the time obtaining the proposal form Ex.R.1, opposite party got the proposer medically examined from Dr. S.K. Bhalla, as apparent from his medical report Ex.R.2 appended with the proposal form Ex.R.1. Doctor of opposite party on 9.3.2007 vide his report found proposer to be healthy.

    8. Repudiation of the claim was based upon the discharge summary Ex.R.4 of the PGI, Chandigarh where Sh. Raj Kamal alias Rajinder Om Pujara was admitted on 20.6.2007 and discharged on 3.7.2007. He was diagnosed a case of Obstructive Jaundice, which was treated in the hospital. In the past history recorded as under:

    “Known diabetic for about 7 years on oral hypoglycemic agent . Tb Glimad. No H/o hypertension, tuberculosis coronary artery disease.”

    9. As such the past history recorded is that he was diabetic since seven years but was free from hypertension, tuberculosis, coronary artery disease.

    10. It is in this backdrop, food for thought whether diabetes is a disease, so to authorize the opposite party to refute the claim of the complainants.

    11. Hypertension and diabetes have been termed not amounting to any disease. The Hon’ble Delhi State Consumer Disputes Redressal Commission in case titled as Maneti Rawat Vs LIC of India reported in 1998 (1) CLT 418, has held that :-

    (i) ‘Disease’ means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the medi-claim policy.



    (ii) “Such a disease should not only be existing at the time of taking the policy but also should have existed in then near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or one year, he is supposed to disclosed the said fact to rule out the failure of his claim on the ground of concealment of information as to “pre-existing”.



    (iii) “Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day of life which is full of tension at the place of work, in and out of the house and are controllable on day-to-day basis by standard medication and can not be used as concealment of ‘pre-existing disease’ for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these disease or any other disease.



    (iv) “If insured had been even otherwise living normal and health life and attending to his duties and daily chores like any other persons and is not declared as a ‘diseased person’ as referred above, he can not be held guilty for concealment of any disease, the medical terminology of which is even not known to an education person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.



    (v) “Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insurance is not supposed to disclosed such disease because of otherwise leading a normal and health life and can not be branded as ‘diseased person’.



    (vi) “Insurance company can not take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi- claim policy whether a person is fit to be insured or not. It appears that insurance companies don’t discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business. Thus, any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is ‘exclusion clause’ invokable.



    (vii) “Claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so-called disease from the discharge summary of the insured by involving the ‘exclusion clause’ or non disclosure of ‘pre-existing disease’ unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above.



    (viii) “Day-to-day history of several years of some or the other physical problem one may face occasionally without having landed for hospitalization or operation for the disease can not be used for repudiating the claim. For instance, an insured had suffered from a particular disease for which, he was hospitalized or operated upon 5,10 to 20 years ago and since then, had been living healthy and normal life can not be accused of concealment of ‘pre-existing disease’ while taking medi-claim policy as after being cured of the disease, he doesn’t suffer from any ‘disease’ much less the ‘pre-existing disease’.



    (ix) For instance, to say that insured has concealed the fact that he was having pain in chest off and on for years but has never been diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and, therefore, is disentitled for claim bares dubious design of the insurer to defeat the rightful claim of the insured on flimsy ground. Instances, are not rare where people suffer a massive attack without having even been hospitalized or operated upon at any age say for 20 years or so.



    (x) “Non-disclosure of hospitalization/or operation for disease that too in the reasonable proximity of the date of medi-claim policy is the only ground on which, insured’s claim can be repudiated and on no other ground.



    12. Thus, it is apparent that view of law taken is that hypertension and diabetes were taken to normal bear and tear and door of modern day of life and not equated with any disease.

    13. Also, there is no evidence that in the near proximity of date of taking the insurance policy, the insured on account of diabetes, was hospitalized. When he was never hospitalized due to such disease, so claim in view of the ratio of the decision of the Hon’ble Delhi State Commission, could not have been repudiated.

    14. Further, the Hon’ble Delhi State Commission in National Ins. Co. Ltd. Vs Sri Chand Jain, appeal no.931 of 2005 decided on 4.5.2006, had an occasion to define the words “disease”. ‘Disease’ has been defined as serious derangement of chronic deep seated disease frequently one that is ultimately fatal for which, an insured must have been hospitalized or operated upon in the near proximity of obtaining the medi-claim policy”. In the present case, there is no proof that for diabetic problem, complainant ever got hospitalized or operated prior to inception of medi-claim insurance policy for the first time. Further, in that very case, National Ins. Co. Ltd.Vs Sri Chand Jain (supra), held malaise of hypertension, diabetes, occasional pain, cold, headache, and arthritis and the like in the body are normal wear and tear of modern day of life, which are controllable on day to day basis by standard medication and can not be used as concealment of pre-existing disease to repudiate the insurance claim, unless the insured in near proximity or taking of the policy, was hospitalized or operated upon, took the treatment of this disease. It was further observed that “claim of any insured should not and can not be repudiated by taking clue or remote reference to any so called disease from the discharge summary of the insured by invoking exclusion clause or non disclosure of ‘pre-existing disease’ unless the insured had concealed his hospitalization of operation for the said disease”.

    15. Hon’ble Delhi State Commission, in Oriental Insurance Company Ltd. Vs Madhusudhan Sharma I(2006)CPJ-494, has held that “disease like hypertension, diabetes etc. are common and always controllable. Unless, the patient has undertaken long treatment including hospitalization and undergoes operation in near proximity of taking the policy, can not be accused of concealment of material facts.

    16. In another case, Hon’ble Delhi State Commission reported in United India Ins. Co. Ltd. Vs Mehtab Singh I(2005)CPJ-420, while dealing with term “pre-existing disease” existing at the time of taking the policy, has held that such disease can not be considered if insured received treatment for disease few years back, but thereafter enjoying good health at the time of policy. Such claim, was held, can not be repudiated.

    17. Neither there is proof in the instant case that prior to inception of the insurance policy for the first time in 2006,deceased had actually taken treatment as indoor patient for diabetes. In these circumstances, we can not take this ailment to be disease. Reliance in this respect, is placed on a case reported as New India Assurance Company Limited Vs Raj Kumar Chuchra III(2007)CPJ-320(NC), in which, it has been held that there was no evidence that the insured suffering from any disease or received treatment (emphasis laid) before purchase of policy. Hence, claim of the insured was allowed. This authority on all the force applies to facts of the case in hand. Resultantly, the conclusion derived by the opposite party that the deceased was guilty of suppressing this disease or withholding the correct information while purchasing the policy, is not justifiable or justified. Because, if the deceased failed to mention suffering from diabetes while purchasing the policy from the opposite party, can not be considered to have suppressed the true information from the opposite party.

    18. Moreover, in the instant case, cause of death was not policy holder being diabetic, but it was on account of obstructive jaundice. There appears no link between ailment of jaundice and a person being diabetic. Ailment of jaundice can not be attributed on account of a person being diabetic.

    19. In a similar like case with which are dealing Hon’ble Punjab state Consumer Disputes Redressal Commission, Chandigarh in case Life Insurance Corporation of India Vs. Smt. Mohinder Kaur (appeal no. 1425 of 2005, decided on 18.12.2006 has rejected the version of the Insurance Company repudiating the claim. In that case, cause of death was Intra Cranial Tension i.e. hypertension. Medical history of the insured recorded in PGI showed that he was suffering from Diabetes Mellitus. Hon’ble State Commission held that Life Insurance Corporation can not repudiate the claim on the ground that insured submitted false information. There is nothing on the record that deceased was getting treatment for this alleged disease of diabetic. Also took that insured might not be thinking it to be a disease and might not be knowing that he was suffering from diabetes mellitus.

    20. In the instant case also no proof is there that policy holder took diabetes to be a disease or ever took any treatment for it. Therefore, by not disclosing while purchasing the policy, suffering from diabetes, would not amount to suppressing true information qua his health from the opposite party nor he could be construed to have played fraud with the opposite party or breached good faith.

    21. In these circumstances, we feel that opposite party was not justified in repudiating the claim. Resultantly, we allow this complaint and direct opposite party to pay sum insured of Rs.3,00,000/- of Sh. Raj Kamal alias Rajinder Om Pujara under the policy along with any other connected benefits, if admissible thereunder, to the complainants. No order as to compensation. But opposite party directed to pay litigation cost of Rs.2000/-(Rs. Two Thousands only). Compliance of the order be made within 45 days of receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record.

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    consumer case(CC) No. CC/09/167

    Sh Shashi Bala Goyal
    ...........Appellant(s)

    Vs.

    Life Insaurance Corporation Of India

    Harbhagwan Singh
    ...........Respondent(s)


    BEFORE:


    Complainant(s)/Appellant(s):


    OppositeParty/Respondent(s):


    OppositeParty/Respondent(s):


    OppositeParty/Respondent(s):
    ORDER


    DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB) CC.No.167of 27.07.2009 Decided on: 11.11.2009 Shashi Bala Goyal wife of Late Sh. Ramesh Goyal, aged about 37 years, resident of # 13062, St. No. 8, Namdev Nagar, Bathinda. …….Complainant. Versus 1. Life Insurance Corporation of India, through its Branch Manager, Jeevan Jyoti Building, Bibi Wala Road, Bathinda. 2. Harbhagwan Singh, LIC Agent C/o Branch Manager, LIC Jeevan Jyoti Building, Bibi Wala Road, Bathinda. ……..Opposite parties. Complaint under Section12 of the Consumer Protection Act, 1986. Present: For the Complainant : Sh. R.K. Gupta, counsel for the complainant. For the Opposite parties : Sh. Inderjit Singh, counsel for opposite party No.1. Sh. Bansi Lal, counsel for opposite party No.2. QUORUM Sh. George, President. Dr. Phulinder Preet, Member. Sh. Amarjeet Paul, Member. ORDER GEORGER, PRESIDENT:- 1. Briefly stated, complainant’s case is that she got her son namely Rishi Goyal (born on 9th Dec., 1997) insured with opposite party No.1, through opposite party No.2 being agent of opposite party No.1 for a sum of Rs. 50,000/-, and paid the premium of Rs. 10,000/- on 12.04.2008. She was issued Policy No. 30075983 dated 30.04.2008. She was assured at the time, when she filled up the Proposal Form, and paid the premium by opposite party No.2, who is authorized agent of opposite party No.1, that in case of any mishappening, she is likely to get full amount of insurance, and she was told that insurance cover started from the day, when premium was paid. Unfortunately, Rishi Goyal her son, suddenly died on 06.04.2009 at Bathinda, due to heart failure. She approached opposite party No.1 for payment of the insurance amount in respect of Insurance Policy of Rishi Goyal her son. She supplied all the required documents alongwith Claim Form. She received a letter dated 08.07.2009 from opposite party No.1, wherein she has been asked to file a fresh claim, and also intimated her that only a sum of Rs. 6979.20 is payable to her instead of Rs. 50,000/-. She approached opposite party No.1 time and again, but she was told by opposite party No.1 that she will be paid only an amount of Rs. 6979.20 instead of Rs. 50,000/-. However, lastly, she has been told by opposite party No.1 that the age of child was less than 12 years at the time of insurance, so the claim is repudiated, and settled at Rs. 6979.20. She pleaded that opposite party No.1 played unfair trade practice, and she was not bound by any hidden conditions laid down in the Policy, which does not find mention in proposal form, which in fact, were not shown and got singed, at the time of Insurance. She has claimed that opposite party No.1 be directed to release insurance claim of Rs. 50,000/- alongwith compensation to the tune of Rs. 20,000/- alongwith cost of litigation expenses. 2. Opposite parties contested the allegations of the complainant raising legal objections that complaint is not maintainable, as the complainant has not disclosed true and material facts, regarding the health of her child. As the child, died within two years of the Policy as per Section 45 of the Insurance Act, claim is not payable. Complainant was informed to submit Form No. 3801 vide letter dated 12.06.2009, but she failed to supply the required documents, due to which, the claim of the complainant has not been finalized, and present compliant is premature. Moreover, vide the aforesaid letter, dated 12.06.2009, complainant was conveyed that a net amount of Rs. 6979.20 paise is liable to be paid to the complainant, as per terms and conditions of the LIC’s Profit Plus (Plan No.188) of the Policy, the Policy has been issued on 12.04.2008, and risk of the life assured was to commence w.e.f. 12.04.2010 as per clause (b) (ii) of the Policy. It has been held that in case of death of the life assured aged less than 12 years before the commencement of risk, only fund value of the unit held in the Policy Holder’s shall become payable, and therefore, complainant was conveyed vide letter dated 12.06.2009 that she is only entitled to an amount of Rs. 6979.20 paise; complaint is not maintainable; this Forum has no jurisdiction to entertain the complaint; complainant has no locus-standi or cause of action; complainant is estopped by her own act and conduct to file the present complaint; there is neither deficiency in service nor unfair trade practice on the part of opposite parties, and complaint is liable to be dismissed. 3. On merits also, opposite parties while denying the facts on merit, reiterated the facts pleaded by the opposite parties in reply as has been referred to here in above. 4. Complainant in order to prove her allegations, filed his own affidavit dt. 01.10.09 Ex.C-1 and affidavit of Sh. Zia Lal dt. 01.10.09 Ex.C-10 and also brought on record, copy of claimant’s statement Ex.C-2; photo copy of Medical Attendance Certificate Ex.C-3; copy of death certificate of Rishi Goyal Ex.C-4; copy of policy Ex.C-5; copy of endorsement Ex.C-6; copy of premium receipt Ex.C-7; copy of letter dt. 12.06.09 Ex.C-8; copy of Performa of Form No. 3801 Ex.C-9 and Performa of Profit Plus Plan Form Ex.C-11. 5. To controvert the evidence of the complainant, opposite parties filed affidavits of Sh. Harbhagwan Singh dt. 07.10.09 Ex.R-1 and Sh. P.K. Saxena, Manager Legal dt. 12.10.09 Ex.R-6, and also brought on record, copies of policy Ex.R-2 to Ex.R-3; copy of letter dt. 12.06.09 Ex.R-4 and copy of death certificate of Rishi Goyal Ex.R-5. 6. We have heard the learned counsel for both the parties and perused the entire record of the case carefully. 7. It is an admitted fact that complainant got insured her son namely Rishi Goyal, who was born on 09.12.1997 with opposite party No.1 through opposite party No.2, who is an authorized agent of opposite party No.1 for Rs. 50,000/-, and opposite party No.1 received first premium of Rs. 10,000/- on 12.04.2008. It has been urged by counsel on behalf of the complainant that complainant has not signed the Insurance Policy Ex.R-2, she has only singed the Proposal Form for insurance, and in Proposal Form of the insurance, for which she paid premium of Rs. 10,000/- on 12.04.2008, there was no such condition, that the Policy will covering the risk, commencing from same later date, nor there was any such condition that as per clause (b) (ii) of the policy, whereby it has been laid down by the Insurance Company that in case of death of the life assured aged less than 12 years before the commencement of risk, only fund value of the unit held in the Policy Holder’s shall become payable. The learned counsel has strongly urged that any condition, which has been incorporated in the policy, at a later stage, was not admittedly, the part of the Proposal Form, signed by the complainant, and the same is not binding on her. The learned counsel has also urged that opposite parties have brought on record the Original Proposal Form of insurance, which was singed by the complainant. 8. We have considered the rival contentions of learned counsel for both the parties, and record of the case carefully. 9. It is an admitted fact that opposite party No.1, is in possession of the Original Proposal Form of Insurance, which in fact, is filled up by the complainant, and she singed the same, and paid the premium of Rs. 10,000/- for Insurance of her son. It is an admitted fact that Insurance is a contract between the parties. Both the parties are bound by the terms and conditions, agreed at the time of entering into contract of Rs. 10,000/- on 12.04.2008, and therefore, there is no reason, that after receiving the premium of such a big amount, the Insurance Co. will postpone the date of risk covered to 12.04.2010. If this would have been the terms in the proposal form, complainant is bound by such terms. But opposite parties have failed to brought on the record Proposal Form, and no reason has been given by opposite parties, as to why the Proposal Form has been with held. 10. We are of the considered view that insurance cover Ex.R-2 prepared by the Insurance Co. is one sided, and complainant is not a party or not signatory to the same, and as such, even opposite parties have laid down a clause (b) (ii) in the Policy, whereby in case of death of the life assured aged less than 12 years before the commencement of risk, only fund value of the unit held in the Policy Holder’s, shall become payable. This condition, if, it would have been mentioned in Proposal Form, definitely the complainant would have been bound by the terms and conditions, but since Proposal Form is not brought on the record by opposite party No.1, and terms and conditions Ex.R-2 are not signed by the complainant, complainant is not bound by the terms and conditions mentioned in Ex.R-2. After receiving the premium on 12.04.2008 and also introducing a clause (b) (ii) in Insurance Policy, opposite parties appear to be indulging in unfair trade practice, creating unwarranted extension clause, which amounts to deficiency in service and unfair trade practice. Contractual terms are binding on the parties. A person, who signed a document containing contractual terms, is normally bound by them, even though, he had not read them or was ignorant of their precise legal effect. Similar view has been taken by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in case titled M/s. Desk to Desk Courier & Cargo Vs. Kerala State Electronics Development Corpn. Ltd., 2004 (2) CLT 117. In the present case, since Proposal Form is not brought on the record by opposite party No.1, and terms and conditions, Ex.R-2, are not signed by the complainant, complainant is not bound by the terms and conditions mentioned in Ex.R-2. 11. We accordingly, accept the complaint, and opposite party No.1 shall be liable to pay the full amount of the Insurance i.e. Rs. 50,000/- to the complainant alongwith litigation expenses to the tune of Rs. 2,000/-. 12. The compliance of this order be made within 45 days from the date of receipt of copy of this order. 13. The copy of this order be sent to the parties concerned free of cost and file be indexed and consigned. Pronounced (GEORGE) 11.11.2009 PRESIDENT (DR. PHULINDER PREET) MEMBER (AMARJEET PAUL) MEMBER

    DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB) CC.No.167of 27.07.2009 Decided on: 11.11.2009 Shashi Bala Goyal wife of Late Sh. Ramesh Goyal, aged about 37 years, resident of # 13062, St. No. 8, Namdev Nagar, Bathinda. …….Complainant. Versus 1. Life Insurance Corporation of India, through its Branch Manager, Jeevan Jyoti Building, Bibi Wala Road, Bathinda. 2. Harbhagwan Singh, LIC Agent C/o Branch Manager, LIC Jeevan Jyoti Building, Bibi Wala Road, Bathinda. ……..Opposite parties. Complaint under Section12 of the Consumer Protection Act, 1986. Present: For the Complainant : Sh. R.K. Gupta, counsel for the complainant. For the Opposite parties : Sh. Inderjit Singh, counsel for opposite party No.1. Sh. Bansi Lal, counsel for opposite party No.2. QUORUM Sh. George, President. Dr. Phulinder Preet, Member. Sh. Amarjeet Paul, Member. ORDER GEORGER, PRESIDENT:- 1. Briefly stated, complainant’s case is that she got her son namely Rishi Goyal (born on 9th Dec., 1997) insured with opposite party No.1, through opposite party No.2 being agent of opposite party No.1 for a sum of Rs. 50,000/-, and paid the premium of Rs. 10,000/- on 12.04.2008. She was issued Policy No. 30075983 dated 30.04.2008. She was assured at the time, when she filled up the Proposal Form, and paid the premium by opposite party No.2, who is authorized agent of opposite party No.1, that in case of any mishappening, she is likely to get full amount of insurance, and she was told that insurance cover started from the day, when premium was paid. Unfortunately, Rishi Goyal her son, suddenly died on 06.04.2009 at Bathinda, due to heart failure. She approached opposite party No.1 for payment of the insurance amount in respect of Insurance Policy of Rishi Goyal her son. She supplied all the required documents alongwith Claim Form. She received a letter dated 08.07.2009 from opposite party No.1, wherein she has been asked to file a fresh claim, and also intimated her that only a sum of Rs. 6979.20 is payable to her instead of Rs. 50,000/-. She approached opposite party No.1 time and again, but she was told by opposite party No.1 that she will be paid only an amount of Rs. 6979.20 instead of Rs. 50,000/-. However, lastly, she has been told by opposite party No.1 that the age of child was less than 12 years at the time of insurance, so the claim is repudiated, and settled at Rs. 6979.20. She pleaded that opposite party No.1 played unfair trade practice, and she was not bound by any hidden conditions laid down in the Policy, which does not find mention in proposal form, which in fact, were not shown and got singed, at the time of Insurance. She has claimed that opposite party No.1 be directed to release insurance claim of Rs. 50,000/- alongwith compensation to the tune of Rs. 20,000/- alongwith cost of litigation expenses. 2. Opposite parties contested the allegations of the complainant raising legal objections that complaint is not maintainable, as the complainant has not disclosed true and material facts, regarding the health of her child. As the child, died within two years of the Policy as per Section 45 of the Insurance Act, claim is not payable. Complainant was informed to submit Form No. 3801 vide letter dated 12.06.2009, but she failed to supply the required documents, due to which, the claim of the complainant has not been finalized, and present compliant is premature. Moreover, vide the aforesaid letter, dated 12.06.2009, complainant was conveyed that a net amount of Rs. 6979.20 paise is liable to be paid to the complainant, as per terms and conditions of the LIC’s Profit Plus (Plan No.188) of the Policy, the Policy has been issued on 12.04.2008, and risk of the life assured was to commence w.e.f. 12.04.2010 as per clause (b) (ii) of the Policy. It has been held that in case of death of the life assured aged less than 12 years before the commencement of risk, only fund value of the unit held in the Policy Holder’s shall become payable, and therefore, complainant was conveyed vide letter dated 12.06.2009 that she is only entitled to an amount of Rs. 6979.20 paise; complaint is not maintainable; this Forum has no jurisdiction to entertain the complaint; complainant has no locus-standi or cause of action; complainant is estopped by her own act and conduct to file the present complaint; there is neither deficiency in service nor unfair trade practice on the part of opposite parties, and complaint is liable to be dismissed. 3. On merits also, opposite parties while denying the facts on merit, reiterated the facts pleaded by the opposite parties in reply as has been referred to here in above. 4. Complainant in order to prove her allegations, filed his own affidavit dt. 01.10.09 Ex.C-1 and affidavit of Sh. Zia Lal dt. 01.10.09 Ex.C-10 and also brought on record, copy of claimant’s statement Ex.C-2; photo copy of Medical Attendance Certificate Ex.C-3; copy of death certificate of Rishi Goyal Ex.C-4; copy of policy Ex.C-5; copy of endorsement Ex.C-6; copy of premium receipt Ex.C-7; copy of letter dt. 12.06.09 Ex.C-8; copy of Performa of Form No. 3801 Ex.C-9 and Performa of Profit Plus Plan Form Ex.C-11. 5. To controvert the evidence of the complainant, opposite parties filed affidavits of Sh. Harbhagwan Singh dt. 07.10.09 Ex.R-1 and Sh. P.K. Saxena, Manager Legal dt. 12.10.09 Ex.R-6, and also brought on record, copies of policy Ex.R-2 to Ex.R-3; copy of letter dt. 12.06.09 Ex.R-4 and copy of death certificate of Rishi Goyal Ex.R-5. 6. We have heard the learned counsel for both the parties and perused the entire record of the case carefully. 7. It is an admitted fact that complainant got insured her son namely Rishi Goyal, who was born on 09.12.1997 with opposite party No.1 through opposite party No.2, who is an authorized agent of opposite party No.1 for Rs. 50,000/-, and opposite party No.1 received first premium of Rs. 10,000/- on 12.04.2008. It has been urged by counsel on behalf of the complainant that complainant has not signed the Insurance Policy Ex.R-2, she has only singed the Proposal Form for insurance, and in Proposal Form of the insurance, for which she paid premium of Rs. 10,000/- on 12.04.2008, there was no such condition, that the Policy will covering the risk, commencing from same later date, nor there was any such condition that as per clause (b) (ii) of the policy, whereby it has been laid down by the Insurance Company that in case of death of the life assured aged less than 12 years before the commencement of risk, only fund value of the unit held in the Policy Holder’s shall become payable. The learned counsel has strongly urged that any condition, which has been incorporated in the policy, at a later stage, was not admittedly, the part of the Proposal Form, signed by the complainant, and the same is not binding on her. The learned counsel has also urged that opposite parties have brought on record the Original Proposal Form of insurance, which was singed by the complainant. 8. We have considered the rival contentions of learned counsel for both the parties, and record of the case carefully. 9. It is an admitted fact that opposite party No.1, is in possession of the Original Proposal Form of Insurance, which in fact, is filled up by the complainant, and she singed the same, and paid the premium of Rs. 10,000/- for Insurance of her son. It is an admitted fact that Insurance is a contract between the parties. Both the parties are bound by the terms and conditions, agreed at the time of entering into contract of Rs. 10,000/- on 12.04.2008, and therefore, there is no reason, that after receiving the premium of such a big amount, the Insurance Co. will postpone the date of risk covered to 12.04.2010. If this would have been the terms in the proposal form, complainant is bound by such terms. But opposite parties have failed to brought on the record Proposal Form, and no reason has been given by opposite parties, as to why the Proposal Form has been with held. 10. We are of the considered view that insurance cover Ex.R-2 prepared by the Insurance Co. is one sided, and complainant is not a party or not signatory to the same, and as such, even opposite parties have laid down a clause (b) (ii) in the Policy, whereby in case of death of the life assured aged less than 12 years before the commencement of risk, only fund value of the unit held in the Policy Holder’s, shall become payable. This condition, if, it would have been mentioned in Proposal Form, definitely the complainant would have been bound by the terms and conditions, but since Proposal Form is not brought on the record by opposite party No.1, and terms and conditions Ex.R-2 are not signed by the complainant, complainant is not bound by the terms and conditions mentioned in Ex.R-2. After receiving the premium on 12.04.2008 and also introducing a clause (b) (ii) in Insurance Policy, opposite parties appear to be indulging in unfair trade practice, creating unwarranted extension clause, which amounts to deficiency in service and unfair trade practice. Contractual terms are binding on the parties. A person, who signed a document containing contractual terms, is normally bound by them, even though, he had not read them or was ignorant of their precise legal effect. Similar view has been taken by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in case titled M/s. Desk to Desk Courier & Cargo Vs. Kerala State Electronics Development Corpn. Ltd., 2004 (2) CLT 117. In the present case, since Proposal Form is not brought on the record by opposite party No.1, and terms and conditions, Ex.R-2, are not signed by the complainant, complainant is not bound by the terms and conditions mentioned in Ex.R-2. 11. We accordingly, accept the complaint, and opposite party No.1 shall be liable to pay the full amount of the Insurance i.e. Rs. 50,000/- to the complainant alongwith litigation expenses to the tune of Rs. 2,000/-. 12. The compliance of this order be made within 45 days from the date of receipt of copy of this order. 13. The copy of this order be sent to the parties concerned free of cost and file be indexed and consigned. Pronounced (GEORGE) 11.11.2009 PRESIDENT (DR. PHULINDER PREET) MEMBER (AMARJEET PAUL) MEMBER

  12. #162
    adv.singh is offline Senior Member
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    C.C.No.133/2003
    Between:
    Kancharla Aruna Kumari, w/o.Sreenivasa Rao, age: 34 years,

    R/o.Kakarlapalli village, Khammam District.

    …Complainant
    and

    1. Life Insurance Corporation of India, rep. By its Divisional

    Manager, Post Box No.17, Balasamudram, Hanmakonda.

    2. Life Insurance Corporation of India, rep. By its Branch

    Manager, Wyra Road, Khammam.

    …Opposite parties.

    This C.C. came before us for final hearing on 23-9-2009; in the presence of Sri.T.Ramesh Babu, Advocate for complainant and of Sri.P.L.Narasimha Rao, Advocate for opposite parties; upon hearing the arguments and upon perusing the material papers on record, and having stood over for consideration till this day, this Forum passed the following order:

    O R D ER

    (Per Sri.Vijay Kumar, President)

    1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The brief facts of the complaint are that the husband of the complainant, late Srinivasa Rao had taken policy bearing No. 682297842, dt.31-1-2002 for a sum of Rs.5,00,000/- with the opposite party corporation. At the time of taking policy, the opposite parties have satisfied with the requirements of the proposal of assurances regarding the health and other conditions, the said policy was given and the complainant is shown as nominee for the same. Unfortunately, the life assured/husband of the complainant died on 2-4-2002 leaving the complainant as his legal heir and nominee. After the death of the life assured, the complainant approached the opposite parties for settlement of the policy and had surrendered the original policy bonds. The authorities of the opposite parties corporation had made the complainant to make rounds so many times. Later the opposite party No.1 addressed a letter by repudiating the claim on the ground of suppressing the material facts regarding the health. In fact the husband of the complainant had never suppressed any material facts, while issuing the policy, the authorities of opposite parties having satisfied with the health condition, after due check up. As such the repudiation on that account is misconceived and the same is not sustainable. The complainant got issued a legal notice on 11-3-20003. On receipt of the said notice, the opposite parties also got issued a reply notice on 20-3-2003 and directed the complainant to approach the Zonal manager, Hyderabad. Inspite of it, there was no response. As such the complainant lost all the hopes and hence she filed this complaint.

    2. In support of the complaint, she also filed affidavit reiterating the contents of the complaint.

    3. On receipt of the notice, the opposite parties appeared through their counsel and filed written version. They admitted that late K.Srinivasa Rao had taken policy for Rs.5,00,000/- from the branch office at Sathupally by submitting proposal form. The opposite parties received intimation from the complainant regarding the death of the life assured on 2-4-2002. Since the duration of the policy is two years from the date of issue of policy, and they classified it as “early claim” and caused investigation into the claim. During the course of investigation, it was revealed that the life assured had undergone treatment for Cancer at Adayar hospital, Chennai from 9-11-1998 to 12-2-2002. This hospitalization/treatment is certified by Deputy Director/Chairman of Oncology of the Cancer Institute in Form No.3784, dt.17-1-2003 and form No.3816, dt.17-1-2003. The disease is diagnosed and treated for non-Hodgkin’s lymphoma, stage III(A) and it was classified as “Recurrence of disease”. It is further certified by the Cancer Institute that the life assured was investigated at NIZAM’S institute, Hyderabad. At the time of filing of proposal, the life assured gave wrong answers regarding his health in question No.11 and intentionally suppressed the material information regarding his health and he also signed the declaration in the proposal form that all the information furnished by him are true and correct. The contract shall be absolutely null and void and all monies, which have to be paid in respect of the policy shall stand forfeited to the corporation. In the light of the evidence gathered by the opposite parties regarding the health of the life assured, it is evident that he was intentionally suppressed and concealed material information and fraudulently obtained the policy. The cause of death (jaundice) is directly related to the disease of life assured. Therefore, the opposite parties are rightly repudiated the death claim against the policy, informed the same to the complainant and prayed to dismiss the complaint.

    4. On behalf of the complainant, she herself got examined as P.W.1 and also got examined P.W.2, Dr.Venkata Neelagiri by way of commission and got marked Exs.A.1 to A.7. Ex.A.1 is the legal notice, Ex.A.2 is the courier receipt, Ex.A.3 is the reply notice, Ex.A.4 is the Xerox copy of letter addressed to the opposite party No.1, dt.19-10-2002, Ex.A.5 is the acknowledgment of the opposite party No.1, Ex.A.6 is the Xerox copy of certification issued by P.W.2, Dr.Venkata Nilagiri, Vasantha Nursing home, Sathupalli, dt.8-6-2002, Ex.A.7 is the Diagnostic report, dt.28-3-2002.

    5. On behalf of the opposite parties, R.Ws.1 to 4 are examined. Exs.B.1 to B.13 are marked. Ex.B.1 is the signature of N.Narasimha Rao, Ex.B.2 is the signature of the N.Narasimha Rao, Ex.B.3 is the Letter, dt.7-12-1998, Exs.B.4 and B.5 are the photographs, Ex.B.6 is the letter issued by Superintendent, Ex.B.7 is the copy of the policy, Ex.B.8 is the proposal form containing signature of sum assured, Ex.B.9 is the repudiation letter, Ex.B.10 is the another repudiation letter of Divisional Manager, Warangal, Ex.B.11 is the repudiation letter issued by the opposite parties, Ex.B.12 is the legal notice, Ex.B.13 is the proposal form.

    6. Among the aforesaid witnesses, R.W.1 is the Dr.T.G.Sagar, working as Deputy Director, principal of Oncological Sciences and Chairman of Medical oncology, Adayar Cancer hospital, Chennai. R.W.1 is examined by way of commission. While examining R.W.1, the court commissioner got marked Exs.C.1 to C.11, the documents, which are in the custody of the cancer hospital, Adayar, Chennai. R.W.2 is the relative of deceased/life assured, K.Srinivasa Rao, R.W.3 is Sri.K.Mangapathi, who is working as Secretary, Zonal office, Hyderabad, R.W.4 is Sri.V.Bhaskar, working as Manager, LIC of India, Divisional office, Warangal. The evidence of R.Ws.2 to 4 is formal in nature. The evidence of R.W.1 is crucial and material to decide the entire case of the complainant and opposite parties.

    7. Both the counsels filed their written arguments and also quoted number of case laws. Heard the oral arguments from both sides.

    8. Now the points that arose for consideration are,

    1) Whether the complainant is entitled to claim the amount

    covered under the policy?

    2) Whether the repudiation of the claim of the complainant by

    the opposite parties is sustainable?

    3) To what relief?

    Point No.1:

    9. During the pendency of the complaint, the counsel for the opposite parties filed a petition requesting this forum to send the letters said to have addressed by the life assured, K.Srinivasa Rao to the expert for comparison of the signature with the signature appearing on proposal form submitted to the opposite parties at the time of taking policy. The said petition was contested by the complainant and at last the said petition was dismissed by holding that the said signature appearing in proposal form and also the signatures contained in the letters said to have addressed by life assured to the cancer institute, Adayar hospital can be compared by this forum without sending the said signatures for comparison. In this case, the only question in dispute is regarding the health condition of the life assured, whether he was suffering from the serious disease of cancer even at the time of filing proposal form and even prior to filing of proposal also. But he has not disclosed the material facts relating to his state of health. The assured also gave false answers to the questions in the proposal form relating to the state of health inducing the opposite parties to accept the proposal form. On this aspect of the case, the opposite parties got examined Dr.T.G.Sagar, R.W.1, by way of commission. During the course of recording his evidence, the court commissioner got marked Exs.C.1 to C.11. Among the said documents, Exc.C.4 is consent form given by the life assured/K.Srinivasa Rao, dt.7-12-1998 and it is attested by R.W.2, N.Narasimha Rao, who accompanied him and signed in Ex.C.4. Ex.C.5 is the letter said to have addressed by the life assured, dt.14-1-1999 with a request to send estimation for the treatment. Ex.C.6 is the certificate issued by Adayar hospital, wherein the treatment was given to life assured, Srinivasa Rao. Ex.C.7 is the case summary of the life assured, who suffered with cancer disease. Ex.C.8 is the inpatient certificate issued by the cancer Institute, Adayar, Chennai. Ex.C.9 is the progress chart and contains information in 6 pages, Ex.C.10 is the progress chart contains information of radio therapy for obtaining treatment for recurrence of the cancer. Ex.C.11 contains information towards the follow up treatment, it contains regarding the date of admission as inpatient from 30-7-2001 and discharged on 2-8-2001. He was again admitted for liver biopsy, it shows the recurrence of cancer. Ex.C.11 contains information for treatment in two spells. R.W.1 has categorically stated in his chief-affidavit that after recurrence of cancer to the life assured, he observed that he may be surviving not more than one year because of widespread of liver involvement and he was in advanced stage of cancer. He was in stage III A. The patient was investigated at NIMS, Hyderabad, the disease was diagnosed by the doctors at NIMS, Hyderabad as the disease is cancer.

    10. On the other hand the learned counsel for the complainant vehemently argued to disprove the fact that the treatment given to one Srinivasa Rao is not that of life assured, but he could not succeed in proving the fact that the treatment given to one Srinivasa Rao is not the life assured. During the course of cross-examination, it was tried on behalf of the complainant that it is not the life assured, who has taken the treatment with Adayar hospital, but the same was turned down by the witness. In order to verify the signatures, which contained in Exs.C.3 and C.4 with the signatures appearing on proposal form. The originals of Exs.C.1 to C.11, which are in the custody of Adayar hospital, Chennai were called for. The said originals have been submitted before this forum.

    11. On careful comparison of signatures appearing in the proposal form (Ex.B.13) and Exs.C.3 and C.4 and the letters addressed by the life assured to the cancer institute, Adayar, Chennai were compared. On the said comparison, the signature appearing on these documents found to be tallied with each other. It is the life assured, who submitted the proposal form by rightly signing the proposal form and letter. It is the life assured who submitted Exs.C.3 and C.4, which are the consent for treatment. The signature appearing on these documents found to be one and the same and belong to the life assured, K.Srinivasa Rao.

    12. The learned counsel for complainant vehemently argued on so many points. In the arguments, he submitted that the person, who got treatment in cancer hospital, Adayar, Chennai is not the same person, who has submitted the proposal form. He contended that the opposite parties has failed to establish the fact that it is the life assured, who was taken treatment in the Cancer hospital, Adayar, Chennai. The next argument is that the husband of the complaint, who is the life assured died due to jaundice, it is no way related to cancer and also made reliance to the following decisions

    AIR 1991 Supreme Court, 392, wherein their lordships held that insured being guilty of making false representations and suppressing material facts – burden is on the corporation.

    13. He also made reliance on a citation reported in 2005(1) ALT 22 (NC) (CPA) wherein their lordships held that the onus to prove the material concealment of any disease which directly proved fatal lies on insurance company to repudiate the claim and also relied on a citation reported in 2005(3) ALT 9 (CPA) wherein it is held that no evidence that insured was suffering from hypertension since six years prior to submitting proposal form – Doctor was not examined to prove on what basis the said fact was mentioned in admission record - Repudiation of the claim was not bonafide. All the citations referred by the counsel for the complainant are regarding burden of proof on the corporation to prove that the life assured being guilty of making false representations and concealing of material facts and regarding failing to examine the doctor, who gave treatment for the said disease. In the instant case on behalf of the opposite parties produced ample evidence oral as well as documentary evidence. The opposite parties got examined R.W.1, Dr.T.G.Sagar, who has categorically stated in his evidence that the deceased/life assured was admitted in his hospital, i.e. at Oncological institute, Adayar cancer hospital, Chennai. At first he was admitted on 2-12-1998 and took treatment for the cancer disease and he issued case summary as inpatient in O.P.No.8423/98 and he was treated as inpatient from 9-2-1998 to 10-12-1998 and he is known cancer patient. Apart from this, the learned counsel for opposite parties referred to Ex.C.3, the consent form for treatment and Ex.C.4 is the consent letter given by the life assured, K.Srinivasa Rao and also estimation for treatment. These letters were written by K.Srinivasa Rao in his own handwriting and signed by him. The evidence of R.W.1 coupled with the documentary evidence in Exs.C.3 to C.11, amply establishes the fact that late K.Srinivasa Rao was suffering with cancer and he has taken treatment with Adayar Hospital, Chennai even prior to submission of proposal form, Ex.B.13. Ex.C.3, dt.7-12-1998, Ex.C.4, dt.7-12-1998, Ex.C.5, dt.14-10-1999 amply go to establish that late K.Srinivasa Rao was suffering with cancer even prior to filing of the proposal form for taking insurance policy from the opposite party.

    14. The person seeking insurance is bound to disclose all the material facts, questions in proposal form relating to state of health, false answers given by the assured, insurer is entitled to repudiate the policy and decline payment. In the instant case the assured was suffering from cancer ailment at III stage, it was known to him, at the time of filing of proposal form. The said ailment was detected several years prior to filing of the proposal form and the assured gave false answers to the questions in the proposal form relating to the state of health. Therefore, the complainant is not entitled to claim the policy amount and opposite party rightly declined the payment. He referred to the following decisions reported in AIR 1984 Calcutta 316, AIR 1984 Calcutta 317, 2008(2) ALT 483 regarding comparison of signature. In the instant case, the forum found no necessity to send the disputed documents to expert for comparison. But the forum itself compared the disputed signatures, which are appearing in Exs.C.3 to C.5 with Ex.B.13. In the law itself opined for the court itself can compare disputed signature with admitted signature to find out its genuineness. On comparison of the said signatures, we have found that the signatures on these documents are one and the same and belong to the life assured, K.Srinivasa Rao. He also made reliance on another citation reported in (2008) 1 Supreme Court Cases 321 wherein it is held that non-disclosure and misstatement in the proposal form, the insured is entitled for the repudiation of the contract of the insurance. In that case, although the insured was undergone major operation 4 years prior to the date of proposal, but he did not disclose prior to obtaining the insurance policy and he died within 6 months from the date of taking policy. In the instant case also, the life assured died within 4 months from the date of taking policy. Though he was suffering with chronic disease of cancer, the life assured suppressed the material facts and did not disclose that he was suffering with disease of cancer and fraudulently obtained the policy by suppressing the material facts. Therefore, the opposite parties rightly repudiated after discovering the fraudulent act of the life assured. The intention of the life assured was not bonafied, but he has fraudulently obtained the policy though he was aware that he suffered with cancer disease and suppressed this material fact and gave deliberate wrong answers, in the proposal form and thereby he has deliberately misrepresented and failed to disclose the disease of cancer by which he was suffering, which amounts suppression of material facts.

    When the matter is reserved for orders, the learned counsel for complainant filed application in I.A.180/2009 praying to reopen the matter for further arguments. After hearing the other side, the matter is reopened and further arguments are heard. The leaned counsel for complainant made reliance on a citation reported in 1986 Andhwar-1-86, 1987-CC-62-40, 1987(TLS) 406484, wherein their lordships came to the opinion that the doctor who examined the deceased/insured at the time of taking policy was not examined and no reasons were assigned as to why the doctor was not examined and also the person who issued the proposal form, presumption of non examination to know the health condition of the deceased. It is fatal on the part of opposite parties. But in the instant case, there is ample evidence adduced by the opposite parties about the health condition of the insured. There is evidence of D.W.1 to ascertain the state of health of the deceased at the time of furnishing the proposal form. In the light of said circumstances ruling not applicable to the facts of the case. Similarly he also placed another ruling of justice Chinnappa Reddy regarding section 45, section 45 will come in to force before the expiry of two years from the date of taking policy. In the instant case, there is ample evidence on record to show that the insured died within 4 months from the date of taking of policy. As such the opinion of his lordships is not helpful to the facts and circumstances of the case.

    15. In view of the aforesaid facts and circumstances of the case, we are of the opinion that the complainant is not entitled to any amount covered under the policy on the ground that her husband, late K.Srinivasa Rao obtained the said policy by misrepresenting the real facts and concealment of suffering from cancer. Accordingly the point is answered against the complainant.

    Point No.2:

    16. The opposite parties have amply established by oral and documentary evidence that the life assured, K.Srinivasa Rao had suffered with chronic disease of cancer even at the time of submitting the proposal form, which amounts to suppression of material facts and concealment of the real facts. Therefore, the opposite parties have rightly repudiated the claim of the complainant and point No.2 is answered in favour of the opposite parties.

    17. In the light of the above circumstances, the complaint is liable to be dismissed.

    18. In the result, the complaint is dismissed.

    Dictated to the Steno, transcribed by her, corrected and pronounced by us in the open forum on this 6th day of November, 2009.

  13. #163
    adv.singh is offline Senior Member
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    Default

    C.C.No.133/2003
    Between:
    Kancharla Aruna Kumari, w/o.Sreenivasa Rao, age: 34 years,

    R/o.Kakarlapalli village, Khammam District.
    …Complainant
    and

    1. Life Insurance Corporation of India, rep. By its Divisional

    Manager, Post Box No.17, Balasamudram, Hanmakonda.

    2. Life Insurance Corporation of India, rep. By its Branch

    Manager, Wyra Road, Khammam.
    …Opposite parties.
    This C.C. came before us for final hearing on 23-9-2009; in the presence of Sri.T.Ramesh Babu, Advocate for complainant and of Sri.P.L.Narasimha Rao, Advocate for opposite parties; upon hearing the arguments and upon perusing the material papers on record, and having stood over for consideration till this day, this Forum passed the following order:


    O R D ER

    (Per Sri.Vijay Kumar, President)

    1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The brief facts of the complaint are that the husband of the complainant, late Srinivasa Rao had taken policy bearing No. 682297842, dt.31-1-2002 for a sum of Rs.5,00,000/- with the opposite party corporation. At the time of taking policy, the opposite parties have satisfied with the requirements of the proposal of assurances regarding the health and other conditions, the said policy was given and the complainant is shown as nominee for the same. Unfortunately, the life assured/husband of the complainant died on 2-4-2002 leaving the complainant as his legal heir and nominee. After the death of the life assured, the complainant approached the opposite parties for settlement of the policy and had surrendered the original policy bonds. The authorities of the opposite parties corporation had made the complainant to make rounds so many times. Later the opposite party No.1 addressed a letter by repudiating the claim on the ground of suppressing the material facts regarding the health. In fact the husband of the complainant had never suppressed any material facts, while issuing the policy, the authorities of opposite parties having satisfied with the health condition, after due check up. As such the repudiation on that account is misconceived and the same is not sustainable. The complainant got issued a legal notice on 11-3-20003. On receipt of the said notice, the opposite parties also got issued a reply notice on 20-3-2003 and directed the complainant to approach the Zonal manager, Hyderabad. Inspite of it, there was no response. As such the complainant lost all the hopes and hence she filed this complaint.

    2. In support of the complaint, she also filed affidavit reiterating the contents of the complaint.

    3. On receipt of the notice, the opposite parties appeared through their counsel and filed written version. They admitted that late K.Srinivasa Rao had taken policy for Rs.5,00,000/- from the branch office at Sathupally by submitting proposal form. The opposite parties received intimation from the complainant regarding the death of the life assured on 2-4-2002. Since the duration of the policy is two years from the date of issue of policy, and they classified it as “early claim” and caused investigation into the claim. During the course of investigation, it was revealed that the life assured had undergone treatment for Cancer at Adayar hospital, Chennai from 9-11-1998 to 12-2-2002. This hospitalization/treatment is certified by Deputy Director/Chairman of Oncology of the Cancer Institute in Form No.3784, dt.17-1-2003 and form No.3816, dt.17-1-2003. The disease is diagnosed and treated for non-Hodgkin’s lymphoma, stage III(A) and it was classified as “Recurrence of disease”. It is further certified by the Cancer Institute that the life assured was investigated at NIZAM’S institute, Hyderabad. At the time of filing of proposal, the life assured gave wrong answers regarding his health in question No.11 and intentionally suppressed the material information regarding his health and he also signed the declaration in the proposal form that all the information furnished by him are true and correct. The contract shall be absolutely null and void and all monies, which have to be paid in respect of the policy shall stand forfeited to the corporation. In the light of the evidence gathered by the opposite parties regarding the health of the life assured, it is evident that he was intentionally suppressed and concealed material information and fraudulently obtained the policy. The cause of death (jaundice) is directly related to the disease of life assured. Therefore, the opposite parties are rightly repudiated the death claim against the policy, informed the same to the complainant and prayed to dismiss the complaint.

    4. On behalf of the complainant, she herself got examined as P.W.1 and also got examined P.W.2, Dr.Venkata Neelagiri by way of commission and got marked Exs.A.1 to A.7. Ex.A.1 is the legal notice, Ex.A.2 is the courier receipt, Ex.A.3 is the reply notice, Ex.A.4 is the Xerox copy of letter addressed to the opposite party No.1, dt.19-10-2002, Ex.A.5 is the acknowledgment of the opposite party No.1, Ex.A.6 is the Xerox copy of certification issued by P.W.2, Dr.Venkata Nilagiri, Vasantha Nursing home, Sathupalli, dt.8-6-2002, Ex.A.7 is the Diagnostic report, dt.28-3-2002.

    5. On behalf of the opposite parties, R.Ws.1 to 4 are examined. Exs.B.1 to B.13 are marked. Ex.B.1 is the signature of N.Narasimha Rao, Ex.B.2 is the signature of the N.Narasimha Rao, Ex.B.3 is the Letter, dt.7-12-1998, Exs.B.4 and B.5 are the photographs, Ex.B.6 is the letter issued by Superintendent, Ex.B.7 is the copy of the policy, Ex.B.8 is the proposal form containing signature of sum assured, Ex.B.9 is the repudiation letter, Ex.B.10 is the another repudiation letter of Divisional Manager, Warangal, Ex.B.11 is the repudiation letter issued by the opposite parties, Ex.B.12 is the legal notice, Ex.B.13 is the proposal form.

    6. Among the aforesaid witnesses, R.W.1 is the Dr.T.G.Sagar, working as Deputy Director, principal of Oncological Sciences and Chairman of Medical oncology, Adayar Cancer hospital, Chennai. R.W.1 is examined by way of commission. While examining R.W.1, the court commissioner got marked Exs.C.1 to C.11, the documents, which are in the custody of the cancer hospital, Adayar, Chennai. R.W.2 is the relative of deceased/life assured, K.Srinivasa Rao, R.W.3 is Sri.K.Mangapathi, who is working as Secretary, Zonal office, Hyderabad, R.W.4 is Sri.V.Bhaskar, working as Manager, LIC of India, Divisional office, Warangal. The evidence of R.Ws.2 to 4 is formal in nature. The evidence of R.W.1 is crucial and material to decide the entire case of the complainant and opposite parties.

    7. Both the counsels filed their written arguments and also quoted number of case laws. Heard the oral arguments from both sides.

    8. Now the points that arose for consideration are,

    1) Whether the complainant is entitled to claim the amount

    covered under the policy?


    2) Whether the repudiation of the claim of the complainant by

    the opposite parties is sustainable

    3) To what relief?

    Point No.1:

    9. During the pendency of the complaint, the counsel for the opposite parties filed a petition requesting this forum to send the letters said to have addressed by the life assured, K.Srinivasa Rao to the expert for comparison of the signature with the signature appearing on proposal form submitted to the opposite parties at the time of taking policy. The said petition was contested by the complainant and at last the said petition was dismissed by holding that the said signature appearing in proposal form and also the signatures contained in the letters said to have addressed by life assured to the cancer institute, Adayar hospital can be compared by this forum without sending the said signatures for comparison. In this case, the only question in dispute is regarding the health condition of the life assured, whether he was suffering from the serious disease of cancer even at the time of filing proposal form and even prior to filing of proposal also. But he has not disclosed the material facts relating to his state of health. The assured also gave false answers to the questions in the proposal form relating to the state of health inducing the opposite parties to accept the proposal form. On this aspect of the case, the opposite parties got examined Dr.T.G.Sagar, R.W.1, by way of commission. During the course of recording his evidence, the court commissioner got marked Exs.C.1 to C.11. Among the said documents, Exc.C.4 is consent form given by the life assured/K.Srinivasa Rao, dt.7-12-1998 and it is attested by R.W.2, N.Narasimha Rao, who accompanied him and signed in Ex.C.4. Ex.C.5 is the letter said to have addressed by the life assured, dt.14-1-1999 with a request to send estimation for the treatment. Ex.C.6 is the certificate issued by Adayar hospital, wherein the treatment was given to life assured, Srinivasa Rao. Ex.C.7 is the case summary of the life assured, who suffered with cancer disease. Ex.C.8 is the inpatient certificate issued by the cancer Institute, Adayar, Chennai. Ex.C.9 is the progress chart and contains information in 6 pages, Ex.C.10 is the progress chart contains information of radio therapy for obtaining treatment for recurrence of the cancer. Ex.C.11 contains information towards the follow up treatment, it contains regarding the date of admission as inpatient from 30-7-2001 and discharged on 2-8-2001. He was again admitted for liver biopsy, it shows the recurrence of cancer. Ex.C.11 contains information for treatment in two spells. R.W.1 has categorically stated in his chief-affidavit that after recurrence of cancer to the life assured, he observed that he may be surviving not more than one year because of widespread of liver involvement and he was in advanced stage of cancer. He was in stage III A. The patient was investigated at NIMS, Hyderabad, the disease was diagnosed by the doctors at NIMS, Hyderabad as the disease is cancer.

    10. On the other hand the learned counsel for the complainant vehemently argued to disprove the fact that the treatment given to one Srinivasa Rao is not that of life assured, but he could not succeed in proving the fact that the treatment given to one Srinivasa Rao is not the life assured. During the course of cross-examination, it was tried on behalf of the complainant that it is not the life assured, who has taken the treatment with Adayar hospital, but the same was turned down by the witness. In order to verify the signatures, which contained in Exs.C.3 and C.4 with the signatures appearing on proposal form. The originals of Exs.C.1 to C.11, which are in the custody of Adayar hospital, Chennai were called for. The said originals have been submitted before this forum.

    11. On careful comparison of signatures appearing in the proposal form (Ex.B.13) and Exs.C.3 and C.4 and the letters addressed by the life assured to the cancer institute, Adayar, Chennai were compared. On the said comparison, the signature appearing on these documents found to be tallied with each other. It is the life assured, who submitted the proposal form by rightly signing the proposal form and letter. It is the life assured who submitted Exs.C.3 and C.4, which are the consent for treatment. The signature appearing on these documents found to be one and the same and belong to the life assured, K.Srinivasa Rao.

    12. The learned counsel for complainant vehemently argued on so many points. In the arguments, he submitted that the person, who got treatment in cancer hospital, Adayar, Chennai is not the same person, who has submitted the proposal form. He contended that the opposite parties has failed to establish the fact that it is the life assured, who was taken treatment in the Cancer hospital, Adayar, Chennai. The next argument is that the husband of the complaint, who is the life assured died due to jaundice, it is no way related to cancer and also made reliance to the following decisions

    AIR 1991 Supreme Court, 392, wherein their lordships held that insured being guilty of making false representations and suppressing material facts – burden is on the corporation.

    13. He also made reliance on a citation reported in 2005(1) ALT 22 (NC) (CPA) wherein their lordships held that the onus to prove the material concealment of any disease which directly proved fatal lies on insurance company to repudiate the claim and also relied on a citation reported in 2005(3) ALT 9 (CPA) wherein it is held that no evidence that insured was suffering from hypertension since six years prior to submitting proposal form – Doctor was not examined to prove on what basis the said fact was mentioned in admission record - Repudiation of the claim was not bonafide. All the citations referred by the counsel for the complainant are regarding burden of proof on the corporation to prove that the life assured being guilty of making false representations and concealing of material facts and regarding failing to examine the doctor, who gave treatment for the said disease. In the instant case on behalf of the opposite parties produced ample evidence oral as well as documentary evidence. The opposite parties got examined R.W.1, Dr.T.G.Sagar, who has categorically stated in his evidence that the deceased/life assured was admitted in his hospital, i.e. at Oncological institute, Adayar cancer hospital, Chennai. At first he was admitted on 2-12-1998 and took treatment for the cancer disease and he issued case summary as inpatient in O.P.No.8423/98 and he was treated as inpatient from 9-2-1998 to 10-12-1998 and he is known cancer patient. Apart from this, the learned counsel for opposite parties referred to Ex.C.3, the consent form for treatment and Ex.C.4 is the consent letter given by the life assured, K.Srinivasa Rao and also estimation for treatment. These letters were written by K.Srinivasa Rao in his own handwriting and signed by him. The evidence of R.W.1 coupled with the documentary evidence in Exs.C.3 to C.11, amply establishes the fact that late K.Srinivasa Rao was suffering with cancer and he has taken treatment with Adayar Hospital, Chennai even prior to submission of proposal form, Ex.B.13. Ex.C.3, dt.7-12-1998, Ex.C.4, dt.7-12-1998, Ex.C.5, dt.14-10-1999 amply go to establish that late K.Srinivasa Rao was suffering with cancer even prior to filing of the proposal form for taking insurance policy from the opposite party.

    14. The person seeking insurance is bound to disclose all the material facts, questions in proposal form relating to state of health, false answers given by the assured, insurer is entitled to repudiate the policy and decline payment. In the instant case the assured was suffering from cancer ailment at III stage, it was known to him, at the time of filing of proposal form. The said ailment was detected several years prior to filing of the proposal form and the assured gave false answers to the questions in the proposal form relating to the state of health. Therefore, the complainant is not entitled to claim the policy amount and opposite party rightly declined the payment. He referred to the following decisions reported in AIR 1984 Calcutta 316, AIR 1984 Calcutta 317, 2008(2) ALT 483 regarding comparison of signature. In the instant case, the forum found no necessity to send the disputed documents to expert for comparison. But the forum itself compared the disputed signatures, which are appearing in Exs.C.3 to C.5 with Ex.B.13. In the law itself opined for the court itself can compare disputed signature with admitted signature to find out its genuineness. On comparison of the said signatures, we have found that the signatures on these documents are one and the same and belong to the life assured, K.Srinivasa Rao. He also made reliance on another citation reported in (2008) 1 Supreme Court Cases 321 wherein it is held that non-disclosure and misstatement in the proposal form, the insured is entitled for the repudiation of the contract of the insurance. In that case, although the insured was undergone major operation 4 years prior to the date of proposal, but he did not disclose prior to obtaining the insurance policy and he died within 6 months from the date of taking policy. In the instant case also, the life assured died within 4 months from the date of taking policy. Though he was suffering with chronic disease of cancer, the life assured suppressed the material facts and did not disclose that he was suffering with disease of cancer and fraudulently obtained the policy by suppressing the material facts. Therefore, the opposite parties rightly repudiated after discovering the fraudulent act of the life assured. The intention of the life assured was not bonafied, but he has fraudulently obtained the policy though he was aware that he suffered with cancer disease and suppressed this material fact and gave deliberate wrong answers, in the proposal form and thereby he has deliberately misrepresented and failed to disclose the disease of cancer by which he was suffering, which amounts suppression of material facts.

    When the matter is reserved for orders, the learned counsel for complainant filed application in I.A.180/2009 praying to reopen the matter for further arguments. After hearing the other side, the matter is reopened and further arguments are heard. The leaned counsel for complainant made reliance on a citation reported in 1986 Andhwar-1-86, 1987-CC-62-40, 1987(TLS) 406484, wherein their lordships came to the opinion that the doctor who examined the deceased/insured at the time of taking policy was not examined and no reasons were assigned as to why the doctor was not examined and also the person who issued the proposal form, presumption of non examination to know the health condition of the deceased. It is fatal on the part of opposite parties. But in the instant case, there is ample evidence adduced by the opposite parties about the health condition of the insured. There is evidence of D.W.1 to ascertain the state of health of the deceased at the time of furnishing the proposal form. In the light of said circumstances ruling not applicable to the facts of the case. Similarly he also placed another ruling of justice Chinnappa Reddy regarding section 45, section 45 will come in to force before the expiry of two years from the date of taking policy. In the instant case, there is ample evidence on record to show that the insured died within 4 months from the date of taking of policy. As such the opinion of his lordships is not helpful to the facts and circumstances of the case.

    15. In view of the aforesaid facts and circumstances of the case, we are of the opinion that the complainant is not entitled to any amount covered under the policy on the ground that her husband, late K.Srinivasa Rao obtained the said policy by misrepresenting the real facts and concealment of suffering from cancer. Accordingly the point is answered against the complainant.

    Point No.2:

    16. The opposite parties have amply established by oral and documentary evidence that the life assured, K.Srinivasa Rao had suffered with chronic disease of cancer even at the time of submitting the proposal form, which amounts to suppression of material facts and concealment of the real facts. Therefore, the opposite parties have rightly repudiated the claim of the complainant and point No.2 is answered in favour of the opposite parties.

    17. In the light of the above circumstances, the complaint is liable to be dismissed.

    18. In the result, the complaint is dismissed.

    Dictated to the Steno, transcribed by her, corrected and pronounced by us in the open forum on this 6th day of November, 2009.

  14. #164
    adv.singh is offline Senior Member
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    C.C.NO.72/2009
    Between :
    D. Satya Murthy
    S/o late D.V. Ganga Raju,
    69 years, Advocate & Tax Consultant,
    Dr.No;4-2-3A, Kothagraharam,
    Vizianagaram Town & District of
    Andhra Pradesh --- Complainant.

    And :

    1. The Branch Manager, LIC of India,

    Lower Tank Bund Road, Vizianagaram Town

    & District of Andhra Pradesh

    2. The Divisional Manager, LIC of India,

    Jeevan Prakash, 9th floor, Visakhapatnam. --- Opposite Parties

    This complaint is coming on for final hearing before us in the presence of Sri N. Appala Raju Advocate for Complainant and Sri K. Venkateswara Rao Advocate for opposite parties and having stood over for consideration, the Forum made the following:-



    O R D E R

    This is a complaint filed on behalf of the complainant under Section-12 of Consumer Protection Act against the opposite parties 1 & 2 praying this forum to direct the opposite parties to make payment of the penal interest on sum assured amount of Rs.10,000/- from the date of policy i.e., 08-01-1960 to 19-04-20 i.e., the date of payment @ 18% p.a. which comes to Rs.86,400/- and also bones and other benefits as per policy bond. The opposite parties are further directed to pay the compensation of Rs.2,00,000/- for the inconvenience, mental agony, mental strain and mental torture caused to the complainant and direct the opposite parties to pay a sum of Rs.1,000/- towards costs and expenses and to pay Rs.2,000/- towards the advocate fee and such other reliefs, as the Honourable Forum deems fit and proper in the circumstances of the case.



    The complainant submits the opposite party No:1 is the policy issuing office and the 2nd opposite party is it controlling office of it and the complainant submits that he had taken one LIC policy on his life with 1st opposite party bearing Policy No:12930078 for the sum assured of Rs.10,000/- under Table 46-15 on 08-01-1960 for the period of 15 years and maturity date is 28-01-1975 with half yearly payment of premium i.e., January and July and premiums had been paid regularly by him. On the advise of the 2nd opposite party vide their Letter Dt:10-07-1971 (document No:1) he had availed the option of conversion of the above said policy in to increased paid-up insurance policy (whole life policy) vide his Letter Dt:11-12-1971 (document No:2) and the 2nd opposite party had accepted the complainant option and endorsed the same on the original policy and registered the same to the complainant vide their letter dt:22-01-1972 (document No:3). After some time, he had handed over the original policy bond to one of the 1st opposite party’s officials, on request of him and the said officer had given acknowledgment dt:02-05-1982 (document No:4) in which he had written that policy bond need for onward transmission to do. He surrendered the above policy and he had intimated the same to the 2nd opposite party vide his letter Dt:10-02-2001 (document No:5) and handed over the said letter on 12-02-2001 to the Then Branch Manager V. Madhusudhana Rao in person, in which the complainant clearly mentioned that the original policy bound is with them.



    The complainant made lot of correspondence with the opposite parties for payment, but surprisingly, opposite parties sent only policy sum assured amount Rs.10,000/- by way of Demand Draft vide their letter dt:19-04-2008 (document No:9). The complainant submits that the opposite parties did not pay any single pie towards interest, compensation etc. The opposite parties’ organization used to collect the penal interest for any delay payment of premiums from customers. But surprisingly in this case, the respondents did not apply such concept of payment of penal interest for their mistake of delay payment. He had written a Letter to the opposite parties for payment of interest, bonus etc., vide his letter Dt:06-05-208 (document No:10) and they received the same from the office of the 2nd opposite party and given reply to complainant that nothing is payable except sum assured amount and no reasons were mentioned vide their letter dt:21-05-2008(document No:11). Since 1960 onwards they have been collecting premiums from the complainant, but they supposed to pay bonus, and interest on the sum assured. The opposite parties had not paid policy surrender amount due to the complainant till 9-04-2008, the complainant became restless, suffered lot of pain, mental agony for inconvenience caused to him, in addition to the mental loss. Hence this complaint.



    The opposite party No:2 filed counter, opposite party No;1 filed memo adopting the same. The opposite parties submit that all the allegations made by the complainant are all not true and correct and they are not admitted by these respondents and the complainant is put to strict proof of the same which are not specifically admitted herein and denied all other allegations. The opposite parties submit that this forum has no jurisdiction to entertain this complaint, as there sis no relationship of consumer as defined under the Act and hence this complaint is liable to be dismissed for want of jurisdiction.

    The opposite parties submits that the complainant suppressed the true facts and filed the present complaint with all false and untenable allegations and the true and correct facts are hereunder:



    The complainant had taken a policy bearing No:12930078 under the scheme Guaranteed Triple Benefit without profit for the sum assured of Rs.10000/-. As per the policy conditions clause-46 no bonus payment is envisaged under the said plan and only payment of sum assured is payable is Rs.10,000/- on the date of maturity on the survival of policy holder to date of maturity. The opposite parties further submit that as desired by the complainant, the surrender of the policy was accepted long time back and as per the terms and conditions of the policy, the opposite parties paid a sum of Rs.10,000/- to the complainant on 14-04-2008 towards the full and final settlement of the entire policy covered under the case. The complainant having received and accepted the same towards the full and final settlement of the policy and to that effect, the complainant passed a receipt. These opposite parties submit that the complainant is not entitled for the claim as claimed in the complaint. Hence the complaint may be dismissed with costs.



    Both sides filed evidence affidavits in support of the respective contentions and filed elaborate written arguments not brief written arguments as envisaged in the regulations.



    Heard both sides. Posted for orders. The orders are as follows:

    The contentions of the opposite parties submits that this forum has no jurisdiction, cannot be accepted. Admittedly the policy was surrendered long back in the year 2001. The complainant requested the opposite parties to pay the amount covered by the policy. But admittedly, the same was paid in the year 2008. The act of the opposite parties in causing delay in payment of the money amounts to deficiency of service and unfair trade practice, as such this forum has no jurisdiction. The further contentions that there is a limitation and the complaint is not filed within time. There is a delay in filing the complaint and the complaint is not filed within 2 years. As such there is a limitation and the complaint is liable to be dismissed. On that ground it is quite acceptable. No doubt the complainant filed the complaint after 8 years after opting for encashment, there is an abnormal delay. No doubt as seen from the complaint and the complainant’s evidence affidavit, it is very clear that the complainant made correspondence with the opposite parties.



    In the meanwhile, as per the documents filed into this Forum, in view of the complaint, he opted for encashment of policy in the year 2001, but the complainant explain that he made correspondence with the opposite parties etc., may be good ground for condonation of delay as per amended C.P. act. The complaint can be filed with delay condonation petition even beyond two years. But no delay condonation petition is filed in this respect; as such the complaint is barred by limitation. The contention of the opposite parties that the complainant received the amount of Rs.10,000/- which is the sum assured towards full and final settlement, as such they have no right to claim bonus, interest etc. The original policy was for Rs.10,000/- for a period of 15 years. Later, the complainant converted the same in to life policy and the opposite parties accepted the same.



    What are the conditions of life policy, they are with the opposite parties only. Opposite parties fails to produce those policy conditions, though the opposite parties stated that clause-46 of condition, the complainant is not entitled for bonus and interest, but the said condition was not filed into the court, which is with the opposite parties. The complainant categorically mentioned at the time of conversion of policy that the original policy is with the opposite parties, as the opposite parties are in possession and enjoyment of the same, the opposite parties are bound to produce the same, without production of conditions particularly condition no:46. The contention of the opposite parties that the complainant is not entitled for bonus, interest etc., cannot be accepted. At the same time, when the complainant is entitled for benefits under the policy, simply because a receipt obtained at the time of receiving Rs.10,000/- there is a mention in it that the amount received by the complainant is towards full and final settlement. When the complainant is entitled for bonus etc., as per the policy conditions, simply mentioning in the receipt in typed words towards full and final settlement of all the claims cannot alter the liability. When the opposite parties are liable to pay Rs.10,000/- with bonus etc., they are liable to pay the same, simply because they obtained in the proforma of receipt towards full and final settlement of all the claims cannot be accepted if really amount accepted by the complainant towards full and final settlement, they ought to have obtained in writing by him. As the amount was not paid and the mention in the receipt towards full and final settlement is contrary to law, as such it is not binding. The opposite parties are liable to pay bonus and interest though not penal interest. The complainant fails to show any material in support of his contention that he is entitled for penal interest from the year 1960 onwards, the complainant is entitled for interest and bonus from the date of taking policy in the year 1960 till the date of encashment i.e., 2001. In the result, though the complainant is entitled for reliefs, as there is a delay and the complaint is not filed within 2 years, the complaint is liable to be dismissed. There is no petition to condone the delay as such the complaint is liable to be dismissed.



    In the result, the complaint is dismissed in the circumstances of the case, no orders as to costs



    Dictated to the Steno, transcribed by her, corrected by me and pronounced us in the open Forum, this the 16th day of November, 2009.

  15. #165
    adv.singh is offline Senior Member
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    C.C.NO.87/2008
    Between :

    Sri Vangapandu Simhadri Naidu

    S/o late Pentam Naidu

    59 years, Chinavanthram Village,

    Vanthram Post Balijipeta Mandal

    Vizianagaram District --- Complainant.



    And :



    1. The Branch Manager, LIC of India,

    Rajam.



    2. The Branch Manager, LIC of India,

    Vizianagaram.



    3. The Divisional Manager, LIC of India,

    Divisional Office, Jeevana Sima Road,

    P.B. No:411, Visakahpatnam.



    4. The Zonal Manager, LIC of India,

    S.C. Zonal Office, Opp: Secretairate,

    Saifabad, Hyderabad. --- Opposite Parties



    This complaint is coming on for final hearing before us in the presence of Sri Ashok Kumar Sharma Advocate for Complainant and Sri A. Srinivas Rao Advocate for opposite party No:3, opposite parties 1, 2 & 4 set exparte and having stood over for consideration, the Forum made the following:-



    O R D E R

    This is a complaint filed on behalf of the complainant under Section-12 of Consumer Protection Act against the opposite parties praying this forum to pass an order cum award in favour of the complainant and against the opposite parties by directing them to pay a sum of Rs.32,550/- along with interest @ 12% from the date of claim application till the date of realization of the amount and further directed to pay a sum of Rs.50,000/- towards damages for mental agony and for costs and other reliefs, as the Honourable Forum deems fit and proper in the circumstances of the case.

    The complainant submits his wife took a policy by paying a premium of Rs.2,345/- on 22-03-2004 at Chinavantram Village and the opposite parties agents approached her and convinced her. She submitted all her medical records and at the time of issuing policy, the opposite parties physician checked her and afterwards, issued a policy after satisfying themselves that she is having good health, they issued policy. The complainant’s wife died on 06-08-2005 he approached the opposite parties for the death benefits and submitted a form, but the 3rd opposite party without hearing the complainant against the natural justice, high acted and on 31-03-2006 repudiated the claim of the complainant with all false and untenable allegations and the letter also did not disclose the correct reasons for repudiating the claim. The opposite parties alleged that the complainant’s wife Kannamma is having Carcinoma of Cervix and for which she under went radiation treatment in the Hospital and further alleged that she made an incorrect statements and withheld correct information regarding her health at the time of effecting the assurance and violated the terms and conditions of the policy. Even as per the terms and conditions of the policy, the opposite parties are liable to pay the death benefits of the said Kannamma to the complainant, but without any proper reasons, the opposite party repudiated the claim for the reasons best known to them. Aggrieved by the said letter, the complainant preferred an application before the claims Review Committee, LIC of India, Visakhapatnam. But quite surprisingly to the complainant, the claims officer, without mentioning any reasons for rejection of the claim, issued a letter Dt:18-09-2006 alleging that the 3rd opposite party decision was Upheld. On 26-11-2007 complainant gave a complaint to the Insurance Ombudsman at Hyderabad and in turn they registered the same in Complaint No:I.O/Hyd/2007 L-21-001-03

    Dt:24-07-08. While matter stood thus, before the Ombudsman on 29-08-2008, opposite parties personally approached the complainant and stated that he was awarded death benefits of his wife and he would get the death benefits of Rs.32,550/- against the above said policy and obtain some signatures of the complainant on printed forms. But the opposite party failed to pay the said amount, but the letter clearly shows that on 16-03-2006 the 3rd opposite party prepared the cheque bearing No:0241315 for Rs.32,550/- as against the death benefits of said Kannamma, but quite contrary to the said letter, on 31-03-2006 repudiated the claim with all false and untenable allegations. The Insurance Ombudsman gave a letter dt:28-12-2007 and the same was served on 05-01-2008. The complainant attended the office of the Ombudsman on 09-01-2008 and no person gave any response. So, he returned to Vizianagaram and even today, they have no reply letter from Ombudsman. Hence this complaint.

    The opposite party filed counter denying all the allegations mentioned in the complaint. Opposite parties 1, 2 & 4 called absent, set exparte on 17-10-2008. Opposite party No:3 filed counter denying all the allegations mentioned in the complaint except those allegations which are not expressly admitted herein and puts the complainant to strict proof of the same and the opposite party No:3 further submits that the wife of the complainant i.e., Kannamma had taken a Endowment Assurance policy with profits + Accident benefit, policy bearing No:69340641 with the branch office of opposite party on 28-03-2004 for a sum assured of Rs.30,000/- and mode of payment being yearly and premium being Rs.2,336/-. The complainant informed the office of the opposite party about the death of the life assured through a letter. The opposite party issued the claim forms to the claimant and since, it is a very early claim opposite party also conducted an enquiry through Branch Manager, Rajam Branch. The claimant died of Heart attack, but on investigation of opposite party revealed that the deceased Kannamma was suffering from “Carcinoma of Carvis” and had undergone radiation treatment in Lions District 324 C-1 cancer Treatment and Research Centre, in Seethammadhara, Visakhapatnam from 24-04-2001 to 23-05-2001 and was also on follow up till 15-10-2003. This fact was not mentioned in the proposal form, while intending to insure the life. The contract of Life insurance is a contract of Uberimma fides (utmost good faith) and rely on the answers given to the questions in the proposals form and assess the risk. The question-11(a) whether consulted a medical practitioner for any ailment requiring treatment for more than a week- the answer was given as No. There is a delay in filing the complaint and on that ground this complaint is liable to be dismissed. There is no evidence on the part of LIC there is no deficiency of service. Hence this complaint is liable to be dismissed.

    The complainant and 3rd opposite party filed evidence affidavits to establish their respective contentions. Heard both sides. Posted for orders. The orders are as follows:

    Perused the entire material availed on record. The opposite party submits that there is a delay in filing the complaint, the complaint is not filed within 2 years on that ground, the complaint liable to be dismissed. Admittedly, the wife of the complainant died in the year 2005. The complainant approached the 3rd opposite party, but the opposite party No:3 without hearing the complainant highhandedly repudiated the claim of the complainant on 31-03-2006. Even as per the terms and conditions of the policy, the opposite party is liable to pay the death benefits of the said Kannamma to the complainant. But without any proper reasons, the opposite party repudiated the claim for the reasons best known to them. Aggrieved by the said letter, the complainant preferred an application before the claims review committee, LIC of India, Visakhapatnam. But quite surprisingly to the complainant, the claims officer, without mentioning any reasons for rejection of the claim, issued a Letter Dt:18-09-2006 alleging that the 3rd opposite party decision was upheld. Against the same, on 26-11-2007 complainant gave a complaint to the Insurance Ombudsman at Hyderabad and in turn they registered the same in Complaint No:I.O/Hyd/2007 L-21-001-03 Dt:24-07-08. As seen from the entire material it is very clear that there is a proper explanation for the delay, but delay condonation was not filed. As such, the claim is not within 2 years and no delay condonation petition was filed, the complaint is liable to be dismissed, as rightly contended by the opposite party. The other contentions of the opposite party that the complainant suppressed the material facts i.e., deceased suffered with “Carcinoma of Cervix” and she underwent radiation treatment in the hospital and further alleged that she made an incorrect statement and withheld correct information regarding her health at the time of taking the insurance and violated the terms and conditions of the policy. As per the complaint, the complainant disclosed all the material facts and submitted medical reports etc., and the opposite party also got her examined by the physician and came to a conclusion that her health is in good condition and accordingly, after verification only policy was issued. The contention of the opposite party that she was suffering with a decease stated above must be established by the opposite party as the complainant was examined by physician of opposite party and found her fit as such, the contention of the opposite party that she fails to disclosed material facts cannot be accepted.

    As per AIR 1994 SC 787 equivalent to 1993 (III) CPJ, Page-7 para-2 in Lucknow Development Authority Vs M.K. Gupta.

    Para-2: To begin with the preamble of the act, which can afford useful assistance to ascertain the legislative intention, it was enacted, ‘to provide for the protection of the interest of consumers’. Use of the word “protection” furnishes key to the minds of makers of the act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the state to intervene and protect interest of the consumers have become a heaven for unscrupulous ones as the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated. The importance of the act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, ‘a network of rackets’ or a society in which, ‘producers have secured power’ to ‘rob the rest’ and the might of public bodies which are degenerating in to store house of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting for it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot.

    As per the judgment reported in A.P. State Consumer Disputes Redressal Commission at Hyderabad in FA.No.925/2006 against CC.No.1/2006 District Consumer Forum-I, Krishna at Machilipatnam.

    We may also state that in Life insurance corporation of India Vs Dr.P.S.Aggarwal reported in 2005 (1) ALT 22 (NC) (CPA), the National Commission after considering the facts in the said case opined that onus to prove that there was material concealment of any disease, which directly proved fatal, lies on insurance company to repudiate the claim. Plea of insurer that insured concealed material fact of disease cannot be accepted in such circumstances.

    In another decision in Life Insurance corporation of India Vs. Badri Nageswaramma reported in 2005 (5) Alt 25 (NC) (CPA), the National Commission opined that the repudiation should not be made unless the insured had made false representation and suppressed material facts on the date of proposal. That was a case where the death was due to acute viral meningo encephalitis and secondary cause as diabetes mellitus The contention of the Insurance company was that he was suffering from T.B. on the date of proposal. The National Commission after going through the evidence opined that the doctor certificate produced by the corporation does not show that the deceased knew on the date of proposal that he was suffering from T.B. Apart from it there was no nexus of ailment with the cause of death and that the repudiation was unjust. We may also add another decision of the National Commission in Oriental Insurance Co, Ltd., Vs. Asim J.Pandya reported in 2006 (2) ALD (Cons.) 29 (NC), wherein it was held that the insurance Company should establish that there was nexus between the cause of death and the ailment suffered by the insured. It should be proximate.

    Coming to the facts, when the Insurance Company could not prove that the death was due to pleural effusion, nor a column was there in the proposal form to inform about the disease of pleural effusion we may not find fault for non disclosing of the same. The death was due to cardiac arrest nothing to do with his previous ailment The non-mention of earlier ailment cannot be said to e material to repudiate the just claim. Therefore, the insurance Company was not entitled to repudiate the claim, more so when its own panel doctor examined and certified his health basing on which policies were given. Therefore, we are of the opinion that the complainant was entitled to the benefits covered under these two policies.

    In the result, the appeal is allowed. Consequently the complaint is allowed and the opposite party insureance company is directed to pay the amounts covered under Jeevan Mitra (Triple Cover Endowment Plant) with Profits (With Accident Benefit) policies by giving three times benefit as per their entitlement with interest at 9% per annum from the date of repudiation till the date of payment together with costs of Rs.2,000/-. Time for compliance four weeks.



    AIR (SC) 1962 814, SCR Supp2 (1962) 571 Mithoolal Nayak, Appellant Versus Life Insurance corporation of India Respondent.

    “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 on 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.

    ………………………………..”

    It would be noticed that the operating part of S.45 states in effect (so far as it is relevant for our purpose) that no policy of life insurance effected after the coming into force of the 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, the second part of the section is in the nature of a proviso which creates an exception. It says in effect that if 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, then the insurer can call in question the policy effected as a result of such inaccurate or false statement, in the case, before us the policy was issued on March 13, 1945 and it was to come in to effect from January 15, 1945. The amount insured was payable after January 15, 1968 or at the death of the insured, if earlier. The respondent company repudiated the claim by its letter dated October 10, 1947. Obviously, therefore, two years had expired from the date of which the policy was effected. We are clearly of the opinion that S.45 of the insurance Act applies in the present case in view of the clear terms in which the section is worded, though learned counsel for the respondent company sought at one stage, to argue that the revival of the policy some time in July, 1946 constituted in law a new contract between the parties and if two years were to be counted from July, 1946, then the period of two years had not expired from the date of the revival. Whether the revival of a lapsed policy constitutes a new contract or not for other purposes, it is clear from the wording of the operative part of S.45 that the period of two years for the purpose of the section has to be calculated from the date on which the policy was originally effected; in the presence present case this can only mean the date on which the policy (Ex.P.2) was effected. From that date a period of two years had clearly expired when the respondent company repudiated the claim. As we think that s.45 of the Insurance Act applies in the Present case, we are relieved of the task of examining the legal position that would follow as a result of inaccurate statements made by the insured in the proposal 819 form or the personal statement etc. in a case where S.45 does not apply and where the averments made in the proposal form and in the personal statement are made the basis of the contract.



    AIR 1986 Kerala 201 P.Sarojam, Appellant V. LIC of India Respondent.

    As the opposite party failed to establish that the deceased died as a result of depression, as such the cause of death is not directly connected with the death. There is no proof that the material submitted by the deceased is false and not disclosed the true facts. As such both judgments have no application.

    As the opposite party fails to bring atleast affidavit of the doctor who given a report that the complainant’s wife was treated for the ailment “Carcinoma of Cervix” stated above, in the absence of proof, the contention of the opposite party that the deceased was given radiation treatment cannot be accepted, as there is no proof . In view of the above judgments, the burden is on the opposite party i.e., Insurance company to establish that the complainant’s wife was treated with the radiation treatment of cancer, as such the complainant is not entitled for policy amount.

    In the result, the complaint is dismissed as barred by time. As the complaint is not filed within 2 years, the complaint is liable to be dismissed. Accordingly, complaint dismissed, no orders as to costs.

    Dictated to the Steno, transcribed by her, corrected by me and pronounced us in the open Forum, this the 16th day of November, 2009.

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