Complaint No.245/04.09.2009

Decided on : 16.12.2009


Sh.Hardev Singh S/o Sh.Mukhtiar Singh, Street No.2, Lakha Singh Street, Near Bus Stand, Mansa.


..... Complainant.


VERSUS


Life Insurance Corporation of India, Naraini Building, Near State Bank of India, Mansa through its Branch Manager.


..... Opposite Party.


Complaint under Section 12 of the Consumer Protection Act, 1986.

.....


Present: None for the complainant.

Sh.Sushil Bansal, Advocate counsel for the Opposite Party.

Quorum: Sh.George, President.

Sh.Sarat Chander, Member.

Smt.Neena Rani Gupta, Member.


ORDER:-

Sh.George, President

Briefly stated the complainant's case is that his wife Harjit Kaur was insured for a sum of Rs.50,000/- under Policy No.300585439 and in this regard she paid premium of her policy amounting to Rs.1,792/- on 28.05.2007. The premium was required to be paid in half yearly installments. Smt.Harjit Kaur nominated her husband the present complainant in her policy. The last premium was paid by the policy holder on 7.11.2007 and the next due date for payment of half yearly premium was on 28.5.2008. The complainant deposited this half yearly premium on 23.8.2008. The policy holder, however, expired on 10.7.2008. After her death, complainant her husband, being nominee, approached the OP for payment of insurance amount of Rs.50,000/-. However, the OP vide letter dated 26.5.2009 informed the complainant that the policy was lapsed at the time of death of the life assured i.e. 10.7.2008. So nothing is payable under the policy. The complainant, feeling aggrieved and dissatisfied, the manner in which the OP has repudiated the claim of insurance of his wife, has filed the present complaint, seeking directions to the OP to release the amount of insurance policy and also to pay an amount of Rs.20,000/- as compensation on account of mental agony, tension, harassment and inconvenience he has to suffer on account of inaction of the opposite party alongwith litigation expenses to the tune of Rs.5,000/-.

2. The OP has resisted the complaint and filed preliminary objections that the complaint is not maintainable in the present form; that the complainant is not a consumer; that this Forum has no jurisdiction to try the present complaint; that the complainant has not approached the Forum with clean hands; that there is no deficiency in service on their part and that the complainant has no locus standi or cause of action to file the present complaint.

3. On merits, while denying all the allegations, the OP has asserted that the actual facts of the case are that deceased Harjit Kaur paid the amount of her first premium on 28.5.2007 and thereafter paid the half yearly installment on 7.11.2007 and the next date for payment of half yearly premium was due as on 28.5.2008. However, the premium was not paid on the due date i.e. 28.5.2008. Even during the grace period of 30 days i.e. 28.6.2008, the installment of half yearly premium was not paid. In the meantime the policy holder expired on 10.7.2008. However, her husband, the complainant paid the premium after the death of his wife i.e. policy holder on 23.8.2008. Before he deposited the amount on 23.8.2008, the policy holder had already died on 10.7.2008 and for non deposit of half yearly installment, even after expiry of the grace period i.e. 28.6.2008, her policy expired even during the life time of the policy holder.

3. In order to prove the allegations, the complainant brought on record his own affidavit Ext.C-1, photo copy of premium intimation Ext.C-2, premium receipt Ext.C-3, letter dated 26.5.2009 Ext.C-4, photocopy of New Bima Gold policy Ext.C-5, premium reminder receipt Ext.C-6, Death certificate Ext.C-7 and closed the evidence, whereas the OP in order to controvert the evidence of the complainant, has brought on the record affidavit of Sh.P.K.Saxena, Manager (L&HPF), Ext.OP-1, original New Bima Gold policy Ext.OP-2 and Death certificate Ext.OP-3 .

4. We have heard the learned counsel for the parties and perused the entire record of the case carefully.

5. It appears from the perusal of the record that the claim of the complainant for release of the life insurance policy of his wife Smt.Harjit Kaur, who admittedly died on 10.7.2008, be released to him which has been repudiated by the OP vide letter Ext.C-4 dated 26.5.2009 on the ground that the policy was lapsed at the time of death of the life assured i.e. 10.7.2008. So nothing is payable under this policy. The claim of the complainant that he has paid the last premium and, therefore, he is entitled to the insurance policy amount of his wife, as her nominee, appears to be unsustainable for the reason that the half yearly premium was payable by the policy holder on 28.5.2008. However, this amount was not paid on the due date. This amount was also not paid upto the end of the grace period of 30 days i.e. 28.6.2008 and, therefore, as per terms and conditions of the policy, the policy automatically lapsed. It has also come on the record that the policy holder expired on 10.7.2008. As to how after the death of the policy holder, her premium, which was actually due on 28.5.2008 actually paid on 23.8.2008 without making any application to the competent authority of the OP for revival of the lapsed insurance policy. It appears from the record that this amount was deposited by the complainant on 23.8.2008 in order to stake his claim on the insurance amount of Rs.50,000/-, which is apparently unsustainable. The claim of the complainant being without any merit, the complaint entails dismissal with no order as to costs.

6. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record.

C.C.No.54/2009
Between:-
D.Seetha Sri Laxmi @ Chikiri Sri Lakshmi,

W/o.D.Venkateshwarlu, Age:31 years,

Occ:House hold, R/o.Kandiveedi, Atmakur,

R/o.Sanjay Nagar, Opp.Govt.Primary School,

Near Police Head Quarters, Adilabad. …Complainant.


//AND//


Life Insurance Corporation of India,

Rep.by its Branch Manager, Branch Office,

Beside APSRTC Depo, Atmakur,

Post&Mdl:Atmakur, Dist.Nellore,

Pin code: 524201. …Opp.Party.

Counsel for Complainant : Mr. Sanjay Kumar Vairagare.

Counsel for Opposite Party : Mr. P.Mohan Singh.
QUORUM:-

SRI.P.THIRUPATHI REDDY, M.A., L.L.B. : PRESIDENT.

SRI.G.SRINIVAS, B.COM., L.L.B. : MEMBER.

THURSDAY THE 31st DAY OF DECEMBER 2009.

-:ORDER:-
Order Pronounced by President:-

This complaint is filed under section 12 of C.P. Act 1986.

The brief facts of complaint are as follows:



1. The complainant has deposited an amount of Rs.15,000/- in the Opp.Party office on 29.12.2005 through the Opp.Party’s/LIC Agent namely Challa Dharanuja, D/o.Sri.Pulla Reddy, W/o.Srinivas Reddy, R/o.Atmakur, bearing LIC Agency code no.0092765J. For the purpose obtaining LIC’s Future Plus Policy. The Opp.Party has issued a Miscellaneous receipt of above payment duly incorporating the details of payment and Agent etc., vide receipt no.6569500, dt:29.12.2005. But the Opp.Party failed to issue the policy for which they have collected the premium inspite of complainant’s repeated requests and reminders in person and also through the above said agent of Opp.Party.

The complainant prayed this forum to direct the Opp.Party to issue “Future Plus Policy” only to the complainant from the date of payment premium on 29.12.2005 in favour of the complainant and further direct the Opp.Party to payment of Rs.75,000/- as compensation to the complainant for causing her inconvenience, heavy loss, pain, mental agony and deficiency in service together with costs, in the circumstances of the case, in the interest of justice.



2. The Opp.Party contested the petition and filed counter. The contents of counter is as follows:

the Opp.Party on 08.01.2007 vide inward no.9708 received a proposal form dated 07.06.2006 from Smt.D.Seetha Sri Lakshmi, W/o.D.Venkateshwarlu through her agent friend Smt.C.Dharanija code no.92765J requesting for issue of a policy under “Market Plus” only. Accordingly the proposal submitted by Smt.D.Seetha Sri Lakshmi, under “Market Plus” plan was completed by O.P. after adjusting the amount paid by the complainant earlier in December 2005. Later a policy bond bearing no.843623274 was issued by the O.P. on 17.09.2007 as required by the complainant. The Opp.Party further clarifies that the complainant neither submitted any proposal under “Future Plus” plan nor claimed for the refund or amount deposited by her in December 2005. Further the complainant has not utilized the cooling off facility available to her for 15 days from the date of issue of policy bond i.e., 17.09.2007. In fact at the request of the complainant the amount of Rs.15,000/- paid on 29.12.2005 through agent Sri.C.Dharanija was adjusted by O.P. on 29.08.2007 towards the single premium and issued the policy bearing no.843623274 for “Market Plus” plan. The Opp.Party prayed to dismiss the complaint.

3. Both parties filed Proof Affidavits.

4. On behalf of complainant Ex.A1 & A2 are marked. Ex.B1 & B2 are marked on behalf of Opp.Parties.

5. Now the point for consideration is whether there are grounds to allow the petition?

6. Heard both sides. Perused Exhibits. Ex.A1 shows that complainant paid a sum of Rs.15,000/- towards policy full premium on 29.12.2005. According to complainant the Opp.Party promised and collected Rs.15,000/- for the issuing the policy by name “Future Plus”.

7. The Ld. Advocate for complainant argued that after collecting the said amount, the Opp.Party did not issue policy and delayed the same like anything, then the complainant approached the Opp.Party and demanded for issuing the policy promised. Later the Opp.Party took their own time and issued “Market Plus Policy”. According to Ld. Advocate for complainant it is submitted that the benefits covered under Future Plus policy are more advantageous to the complainant than the policy under Market Plus. Thus according to complainant the conduct of Opp.Party deficiency of service and he brought this action for releifs claimed for.

8. The fact the complainant paid a sum of Rs.15,000/- on 29.12.2005 and obtained Ex.A1 is beyond dispute. The fact that Future Policy scheme was existing on the date of issue of Ex.A1 is admitted. It is a fact that Opp.Parties slept over the matter after issuing Ex.A1 and it is only after complainant approached them and reminding them about the matter, they became vigilant and subsequently issued the present Market Plus policy. The Opp.Party did not explain the delay in issuing the present policy after a gap of more than one and half year. In the mean time the scheme of Future Plus was closed. So, it appears as there was no alternative Opp.Party issued policy under Market Plus.



9. The Ld. Advocate for Opp.Party submitted that Future Plus was closed, now rules will not permit to issue Future Plus Policy antedating the documents and even if this Forum grants relief to the complainant it will give legal complications to the complainant and it is not advantages to her. Under the above circumstances granting the relief as prayed for by the complainant may not be legal. So we have no other go except to ask the complainant to accept the policy issued Market Plus, but in the circumstances we feel it reasonable to award some costs to compensate the mental agony and inconvenience suffered by the complainant.

10. In the result the complaint is allowed in part. The complainant is directed to retain the Market Plus policy. The Opp.Party is directed to pay a sum of Rs.15,000/- (Rupees Fifteen Thousand Only) towards compensation and the amount is payable within one month from the date of receipt of this order, failing which the amount will carry interest @ 9% p.a from the date of Ex.A1, failing which the complainant is at liberty to proceed against the Opp.Party U/S.25/27 of C.P.Act 1986.

Dictated to Steno, transcribed by her, corrected by us and pronounced in the Open Forum on the 31st day of DECEMBER 2009.

C.C.No.49/2009

Between:-

Syeda Noorien, W/o.Late.Mohd.Moizuddin Siddiqui,

Age:37 years, Occ:House hold, R/o.H.No.7-1-47,

Municipal Quarters, Adilabad. …Complainant.
//AND//

1. The Manager,

Life Insurance Corporation of India,

Branch Officer:Collectorate Road,

Dist.Adilabad.



2. Life Insurance Corporation of India,

Rep.by its Divisional Manager,

Division Officer, Karimnagar. …Opp.Parties.
Counsel for Complainant : Mr. Mohd.Ghouse.


Counsel for Opposite Parties : Mr.P.Mohan Singh.

QUORUM:-

SRI.P.THIRUPATHI REDDY, M.A., L.L.B. : PRESIDENT.


SRI.G.SRINIVAS, B.COM., L.L.B. : MEMBER.


FRIDAY THE 18th DAY OF DECEMBER 2009.

-:ORDER:-

Order Pronounced by Member:-

This complaint is filed under section 12 of C.P. Act 1986.

The brief facts of complaint are as follows:

1. The complainant is the wife of Late.Mohd.Moziuddin Siddique, Mohd.Moizuddin Siddiquie a policy holder vide policy no.680272798 under the scheme vide JEEVAN MITRA DOUBLE COVER ENDOWMENT PLAN WITH PROFITS. The said policy commenced from 25.03.1989. Smt.Zahirunnisa Begum, the mother of policy holder was the nominee. Subsequently the marriage of Mohd.Moizuddin Siddiqui was solemnized with the complainant. The policy holder made an application to the Opp.Parties for the change of nominee. By an endorsement dt:07.09.1996 the complainant/Syeda Noorein became the nominee. The husband of the complainant, on 03.04.1999 left his house bearing no.7-1-47, Municipal Colony, Adilabad and told the complainant that he is going to Ichoda to look after some building construction work and he also told that from Ichoda he will be proceeding to Godavari Khani in connection with his case pending in tribunal and he will return back by 6 April 1999. The husband of the complainant did not return back to his house. The relatives of the complainant searched for Mohd.Moizuddin Siddique at various places. As whereabouts of the husband of the complainant could not be traced. A complaint was filed before the Police station Adilabad I Town on 15.04.1999. The Police Adilabad I Town received the complaint and issued F.I.R. vide Cr.No.54/99 under Man missing. The husband of complainant paid the premium regularly till the period of his missing subsequently also the complainant made the payment of some premium. The intimation of missing of the husband of the complainant was given to the Opp.Parties. The complainant waited for the period of 7 years from the date of issuing of FIR by the police Adilabad I Town. Thereafter the complainant filed a application before the Opp.Party No.1 to make the arrangement for the claim amount on 11.2.2009. The Opp.Party No.1 has sent a letter/reply and directed the complainant to obtain Declaration of Presumption of death. In this connection it is stated that U/s.108 of Indian Evidence Act 1872 if it is proved that a person is not been heard for 7 years by those who could naturally heard of him, if he had been alive it is presumed that after the expiry of (7) years the said persons is presumed as dead and it is not at all necessary for the complainant to obtain any Declaration for the presumption of death of her husband for Mohd.Moizuddin Siddique and the Opp.Parties are under obligation to settle the claim of the complainant. The issuing of the letter dt:11.03.2009 amount to deficiency of service on the part of the Opp.Parties.

The complainant prayed this forum to direct the Opp.Parties to make the payment covered under policy no.680272798 to the complainant and also award cost and grant such other relief or relief’s may be also awarded to the complainant in the circumstances of the case, in the interest of justice.

2. The Opp.Parties No.1&2 filed counters. The contents of counter is as follows:

The Opp.Party came to know about the missing of the life assured through the complainant/claimant only on 11.02.2009 through her letter and that there is no prior intimation from complainant in the above case to this effect. Since no decree has been obtained by the complainant from a Court of Competent Jurisdiction, allegation of the complainant that there is deficiency on the part of the Opp.Parties is altogether incorrect and imaginary. Claim of the complainant under para Nos.7&8 is not maintainable as no Decree was obtained from the Court and sent to Opp.Parties. The Opp.Party corporation humbly submits that there is neither delay nor deficiency of service on the part of the Opp.Parties.

3. Both parties filed Proof Affidavits.

4. On behalf of complainant Ex.A1 to A16 are marked. No documents are marked on behalf of Opp.Parties.

5. Now the point for consideration is whether there are grounds to allow the petition?

6. Heard both sides. Perused Ex.A1 to Ex.A16. The fact that the husband of the complainant left the house on 03.04.1999 and he did not return so far is beyond dispute. It is not the case of Opp.Parties that Sri.Mohd.Moizuddin Siddique is alive and he is somewhere and that complainant is not producing him. The only contention of Opp.Parties is that they demanded complainant to produce Decree from a Competent Civil Court.

7. On the other hand the Ld. Advocate for the complainant submitted this is not a suit for partition or claiming Civil rights between brothers or partners of a

business. The complainant is a consumer here and requested this forum to consider the provisions of Section 108 of Indian Evidence Act and do justice to the complainant.

8. Admittedly about more than 10 years have been elapsed and he whereabouts of husband of complainant is not known. The Ld. Advocate for complainant relied on decision reported in

1998 CPR (2) 286

LIC of India

Vs.

Dr.Ramesh Jain.

Insured not heard for 7 years.

“LIC- insured not heard for 7 years – Declared dead – Policy lapsed for non-payment of premium – Claimant entitled to paid up value of policy plus bonus as due on date policy lapsed. Last premium was paid on March 28, 1973 and the next premium was due to be paid on March 28, 1974. No doubt, P is stated to have left his house on February 12, 1973 when policy was in force as last premium was paid on March 28, 1973. The policy lapsed for non-payment of premium of March 1974. Since no presumption of any particular date of death can be raised, it cannot be held that on the date P left his house, he died or in other words, it cannot be held that he died before March 28, 1973. In such circumstances, only paid up value of the insurance policy with bonus as due on March 28, 1974 the day the policy lapsed was payable to the legal heirs.

The procedure to be adopted for enquiry in the Forums is summary in nature. So we feel it reasonable to consider the Provisions of Section 108 of Indian Evidence Act in the interest of justice. The proposition of law reported in the above case is applicable to the facts and circumstances of the case on hand. So it can be safely be presumed that husband of complainant is dead. The repudiation of claim by Opp.Parties amounts to deficiency of service. We hold this is a fit case to allow the petition.

9. In the result the complaint is allowed in part. The Opp.Parties No.1&2 are directed to pay sum of Rs.50,000/- to the complainant within one month from the date of receipt of this order, failing which the amount carries 9% interest p.a. from the date of complaint and the complainant is at liberty to proceed against the Opp.Party U/S.25/27 of C.P.Act 1986.

Dictated to Steno, transcribed by her, corrected by us and pronounced in the Open Forum on the 18th day of DECEMBER 2009.

C.C.No.516 of 2007

BETWEEN:
Vanukuri Sura Reddy

S/o. Seshi Reddy,

D.No.3-1-72, 3rd line,

Rajendra Nagar,

Guntur District. … Complainant
AND
M/s. Life Insurance Corporation of India,

(claims department) Divisional Office,

Jeevan Prakash,

P.B.No.24, Batchupet,

Machilipatnam-1. …Opposite Party

This complaint coming up before us for final hearing on 26-11-2009 in the presence of Sri C.N. Reddy, Advocate for complainant and of Sri G. Srinivasu, advocate for opposite party, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri M.V.L. Radha Krishna Murthy, MEMBER: This complaint is filed U/S 12 of Consumer Protection Act, 1986 by the complainant praying to direct opposite party to settle the claim of complainant under policy and peruse the relevant documents already submitted in support of his claim to a tune of Rs.5,00,000/- along with bonus with interest @24% pa., and Rs.50,000/- for mental agony, Rs.20,000/- for damages, Rs.10,000/- towards costs and Rs.20,000/- towards advocate fee.

The averments of complaint in brief are as follows: The complainant’s son by name Vanukuri Rajasekhara Reddy obtained a policy from opposite party on 13-04-05. The son of complainant after obtaining policy suffered from Cirrhosis of Liver and Pedal Odema and subsequently died. At the time of issuing policy Jeevan Anand opposite party received an amount of Rs.25,634/- after completion of all formalities including doctor checkup on the health of late V. Rajasekhara Reddy and found good health and after satisfaction only the opposite party issued policy. At the time of issuing policy, the late V. Rajasekhara Reddy was having good health and was not suffering from any disease as such, opposite party is liable to pay death benefits of late V. Rajasekhar Reddy to complainant. The opposite party issued a notice dated 31-03-07 for which complainant got issued a reply notice dated 01-05-07 and demanded to pay an amount of Rs.5,00,000/- including bonus. The opposite party acknowledged the same and kept quiet. Due to the attitude and behaviour of opposite party complainant suffered a lot mentally, financially and that there is deficiency of service on the part of opposite party for which the opposite party is liable to pay compensation to complainant. Hence, the complaint.

Opposite party filed its version which is in brief is as follows: Most of the averments in complaint are all false, incorrect and complainant is put to strict proof of same. The complaint is barred by law of limitation. The life assured Rajasekhara Reddy obtained a Jeevan Anand policy from this opposite party by submitting his proposal dated 16-03-05. He made payment of 1st premium on 30-03-05. The premium due by March, 2006 was also paid. The nominee i.e., complainant intimated that life assured Rajasekhara Reddy died in Asian Institute of Gastro Enterology, Hyderabad on 19-03-06. The insured died within a duration of 11 months, 14 days of taking policy. The life assured made deliberate mis-statements and with held material information from this opposite party regarding his health and treatment at the time of effecting assurance. As per condition No.5 of the conditions of policy, in any case any condition therein contained or endorsed therein shall be contravened or in any case it is found that any untrue or incorrect statement is contained in the proposal, personal statement, declaration and connected documents or any material information is withheld, then in every such case, wherever applicable, this policy shall void and all claims to any benefit shall cease and determine and all monies that have been paid shall belong to Corporation. The life assured intentionally and fraudulently suppressed material information regarding his health condition and fraudulently obtained policy for a high sum of Rs.5,00,000/- without giving any scope for proper assessment of risk. The life assured had been suffering from Cirrhosis of liver since 3 years prior to death and life assured had suffered from Cirrhosis of liver and Pedal Odema prior to commencement of policy. In spite of full knowledge that he had been suffering with Cirrhosis of liver and Pedal Odema, the life assured had given false statements and with held information regarding his health in personal history in proposal form. The deceased gave wrong declaration in reply to answer to question Nos.11(a) (d) and (i). The contract of insurance is of utmost good faith i.e, ubrema fidae and life assured is bound to disclose honestly, truthfully and correctly all answers in the proposal form concerning state of his health and any suppression renders contract of insurance illegal, invalid, void ab initio and unenforceable. The life assured had taken out patient treatment in Asian Institute of Gastro Enterology under Register No.2005-03-01613, dated 19-03-05. The life assured also took medication in USA. The admission form and case sheet of Asian Institute of Gastro Enterology relating to life assured clearly shows the same. The form B-1 submitted by complainant reveals that the life assured reported to doctor at the time of admission that he had past history of Pedal Odema (bilateral). That itself shows that he had full knowledge that he had been suffering from Cirrhosis of liver and Pedal Odema but he did not disclose the same in proposal form at the time of taking policy. The claim form B clearly reveals that the life assured had been suffering from Cirrhosis of liver and Pedal Odema since 3 years prior to his death. Though life assured was medically examined at the time of proposal the medical examination mostly relied on the answers given by proposer. The life assured had not disclosed that he was suffering from Cirrhosis of liver and Pedal Odema since three years, at the time of medical examination while taking policy. The opposite party has rightly repudiated the claim of complainant as complainant’s son with held material information regarding his health and treatment and made deliberate mis-statement and gave false answers at the time of effecting insurance with opposite party. Hence, complaint may be dismissed with costs.

Complainant filed affidavit in support of his version reiterating the same. Opposite party filed its affidavit in support of its version reiterating the same. On behalf of complainant, Exs.A-1 to A-8 are marked and on behalf of opposite party Exs.B-1 to B-8 are marked.

Ex.A-1 is the policy. Ex.A-2 is the Xerox copy of claimant’s statement. Ex.A-3 is the copy of medical attendants certificate. Ex.A-4 is the copy of claim form ‘C’. Ex.A-5 letter dated 31-03-07 addressed by opposite party to the complainant repudiating the claim of complainant. Ex.A-6 is the letter date d01-05-07 copy of registered notice got issued by complainant to opposite party demanding to settle the claim. Ex.A-7 is the postal acknowledgement. Ex.A-8 is the letter addressed by OP2 to the advocate of complainant.

Ex.B-1&2 are the admission and Progress notes in Asian Institute of Gastro Enterology Private Limited regarding the life assured Rajasekhara Reddy. Ex.B-3 is the proposal for insurance given by late V. Rajasekhara Reddy. Ex.B-4 is the policy issued in favour of deceased Rajasekhara Reddy. Ex.B-5 is the certificate of hospital treatment issued by Chief Medical Officer of Asian Institute of Gastro Enterology. Ex.B-6 is medical attendants certificate issued by Medical officer, Asian Institute of Gastro Enterology. Ex.B-7 is the letter dated 31-03-07 addressed by opposite party to complainant repudiating the claim. Ex.B-8 is the report of Commissioner along with evidence deposition of medical officer recorded by the Commissioner.

Now the points for consideration are that,

1. Whether there is any deficiency of service on the part of opposite party?

2. To what relief complainant is entitled to?



POINT No.1:- It is the case of complainant that his son had insured his life for a sum of Rs.5,00,000/- with opposite party and subsequently died on 19-03-06 and that he claimed for death benefits of his son and that opposite party has not paid death benefits on the ground that complainant has suppressed material information regarding his health and gave false statement in the proposal form regarding his health.

It is the case of opposite party that, life assured is the son of complainant suppressed material information while submitting proposal for policy and gave mis-statement regarding his health. Hence, claim was rightly repudiated as per condition No.5 of policy.

As seen from proposal from Ex.B-3 the answers given against col.No.11(a), 11(d) and 11(i) as follows,

S.No.

Personal History

Answer

YES or NO

11(a)

During last five years did you consult a medical practitioner for any ailment requiring treatment for more than a week?
NO

(d)


Are you suffering from or have you ever suffered from ailment pertaining to Liver, Stomach, Heart, Lungs, Kidney, Brain or Nervous system?

NO

(i)


What has been your usual state of health?


GOOD

Thus, the life assured has given answers regarding his state of health as good in proposal form. As seen from Ex.B-5 certificate of hospital treatment issued by Medical Officer of Asian Institute of Gastro Enterology, the diagnosis of deceased was noted as ‘Cirrhosis of liver (cryptongenic)’. The nature of complaint that was reported by life assured is noted as ‘breathlessness + bilateral Pedal Odema’ and the duration of complaint is reported as since ‘one month’. As seen from Ex.B-6 Medical Attendants Certificate issued by Medical officer of Asian Institute of Gastro Enterology, it is noted in col.4(c) that the patient was suffering from disease since 3 years as against col. Symptoms of illness it is noted as ‘bilateral Pedal Odema’ and it was first observed by deceased 3 years ago and as against the col.4(e) and primary cause of death was noted as ‘Cardio Respiratory Arrest’ and second cause of death was noted as ‘Cirrhosis of liver’ in Col.4 (a).

During pendency of complaint the opposite party filed an IA praying to appoint a Commissioner to examine and record evidence of Chief Medical Officer of Asian Institute of Gastro Enterology, Hyderabad and accordingly a Commissioner was appointed to record evidence of Chief Medical Officer and the said Commissioner recorded evidence of Dr.Madhu Babu, the Chief Medical Officer of said institute and filed his report. The Medical Officer in his evidence stated that when ever any patient comes to their hospital for treatment they will issue a permanent register number. In permanent register number the 1st four digits reveals the year of admission registration. As per case sheet the patient V. Rajasekhara Reddy admitted in their hospital during 3rd month of 2005 and later he again admitted on 06-03-06 and as per case sheet maintained by hospital the patient complained with problems of ‘breathlessness, progressive abdominal destruction and Pedal Odema’. The word K/C/O-cld means ‘known case of chronic disease’ and that patient stated that he is suffering with ‘chronic liver disease’ since 3 years. Pedal Odema means swelling of feet and ankle. The complaints mentioned in the admission and progress notes were stated by patient himself. The patient has a history of taken treatment in USA. Later stages of chronic liver disease is “Cirrhosis of liver”. By the date of 06-03-06 itself the patient liver has been grossly damaged. As per hospital record the patient first came to hospital on 19-03-05 and taken treatment as out patient. Since then he has been continuously taking treatment as out patient upto to 06-03-06. Thus as seen from evidence of Chief Medical Officer which was recorded by the Commissioner it shows that life assured was suffering with disease for the last 3 years. It is also noted in Ex.B-2 admission progress notes issued by Asian Institute of Gastro Enterology that patient was having known case of chronic liver disease since 3 years. Thus it is evident from Ex.B-1 the patient life assured was first admitted in hospital during March, 2005 and he was treated since then till the date of death as out patient and that the deceased life assured was suffering with said chronic liver disease since 3 years. But as seen from Ex.B-3 proposal form the deceased life assured has not given correct statements regarding his health in Col.No.11 and thereby he suppressed material fact that he was suffering with a chronic liver disease since 3 years and by suppressing the same, he had taken policy for Rs.5,00,000/- with the opposite party.

The opposite party relied on the following decisions:

1. III (2008) CPJ 78 (SC) between P.C. Chack & Anr., vs. Chairman, Life Insurance Corporation of India & Ors, wherein it was held suppression of material facts – Repudiation of policy – Justified – Non disclosure and mis statement of facts in the proposal form related to material facts – Contract of Insurance null and void, all monies paid in that respect would stand forfeited to Corporation – Deliberate wrong answer having great bearing on contract of insurance, if discovered may lead to policy being vitiated in Law.

2. II (2007) CPJ 51 (NC) between Life Insurance Corporation of India vs. Krishan Chander Sharma, Life Insurance – Repudiation of claim – Claim repudiated because of concealment of material facts regarding health – Repudiation justified.

3. III (2007) CPJ 110 Haryana State Consumer Disputes Redressal Commission, Panchkula, Between, - Life Insurance Corporation of India vs. Murti Devi, wherein it was held that, Insurance – suppression of material facts – Contracts of insurance are of utmost good faith – Insured bound to answer correctly in proposal form, suppression thereof renders contract void ab initio – Due to deliberate concealment by deceased, contract of insurance stood vitiated – Repudiation justified.

4. I (1993) CPJ 94 (NC) National Consumer Disputes Redressal Commission, New Delhi, between Draupadi Devi S. Chaudhari vs. United India Insurance Co. Limited, wherein it was held a prima facie, repudiation of claim by the insurer appears bonafide being based on the history in discharge card of the hospital. Therefore, there is no deficiency in service on its part.

5. 2008 (3) CPR 176 (NC) National Consumer Disputes Redressal Commission, New Delhi between Shankar Soni vs. Life Insurance Corporation of India, wherein it was held repudiation of claim by Life Insurance Corporation of India justified where deceased concealed that he was suffering from Bronchial Asthma and Allergical Dysphonica.

Thus in view of decisions relied on by opposite party and in view of foregoing discussions regarding evidence placed by the opposite party, we are of the opinion that life assured diseased Rajasekhara Reddy suppressed the material fact of his chronic disease that was suffered by him since last 3 years and deliberately gave mis-statement regarding his health in proposal form in Col.No.11. Hence, repudiation of claim made by opposite party is justified and that there is no deficiency of service on the part of opposite party. Accordingly, this issue is answered in favour of opposite party and against complainant.

In the result, complaint is dismissed, but in the circumstances of the case, each party shall bear their own costs.

DATED THIS THE 10th DAY OF DECEMBER 2009
COMPLAINANT

BY-SRI.K.SHYAMSUNDAR,

ADVOCATE, BELLARY.

//VS//


KARNAM VENKATESHWARA RAO,

S/O KARNAM ANANDA RAO,

C-7/1, JSW TOWNSHIP,

VIDYANAGAR – 583 275, SANDUR TALUK,

BELLARY DISTRICT.


RESPONDENTS



BY-SRI.R.SATYAMURHTY,

ADVOCATE, BELLARY.


1) L.I.C. OF INDIA,

T. B. DAM ROAD, HOSPET- 583 201,

BY ITS BRANCH MANAGER.



2) L.I.C. HOUSING FINANCE LTD.,

BESIDES GENERAL POST OFFICE,

LAMINGTON ROAD,

HUBLI-580 029, BY ITS MANAGER.

//JUDGEMENT//
Sri. S.M.Reddy, President.

This is the complaint filed by above named Complainant under Sec-12 of C.P.Act, 1986 against the Respondents seeking directions to them to pay a sum of Rs.45,055/- towards damages for deficiency of service with interest @ 24% p.a. with cost.

2. The brief facts which are not in dispute in the instant case are that;



The Complainant has insured his life under 15 years Jeevan Surabhi scheme with the Respondent No.1 for a sum of Rs.1,00,000/- on 28/03/2001 and Respondent No.1 has issued a Policy bond bearing No.660771770 and as per the Policy, the premium of Rs.11,559/- is payable annually and the said Policy would mature on 28/03/2016. Under the terms of said Policy, the Complainant is entitled to recover 30% of the sum assured on the 4th year and another 30% of the sum assured on the 8th year and 40% of the sum assured on the 12th year and on the date of maturity he was entitled to receive the bonus.



3. It is also not in dispute that, the Complainant had borrowed loan from the Respondent No.2 and on 28/11/2001 the Complainant has assigned the said Insurance Policy along with other Policies which he was holding in his name issued by the Respondent No.1 to the Respondent No.2 by executing an agreement of due notice to the Respondent No.1. Therefore, as per the terms of the said agreement, 30% of the sum assured under the Policy which has been assigned on 4th year and 8th year and also for 40% of the sum assured on the 12th year and vested bonus shall be payable to the Respondent No.2 in view of the assignment of the said Policy and on receipt of the said amounts, the Respondent No.2 shall credit the said proceeds to the housing loan account of the Complainant.



4. It is the case of the Complainant that, when the Complainant with an intention of pre-closing his loan account approached the Respondent No.2 and on verification of the loan account, the Complainant noticed that a sum of Rs.30,000/- which is 30% of the sum assured payable as on 28-03-2005 under the assigned Policy has not been received from the Respondent No.1 and credited to the loan account of the Complainant and on further enquiry from the Respondent No.1 it was revealed that, the Respondent No.1 had sent a cheque bearing No.0032909 dated: 28-03-2005 for Rs.30,000/- towards 30% of the sum assured which was payable on 28-03-2005, but the same has not been encashed by the Respondent No.2 and subsequently the Respondent No.1 had also given another cheque bearing No.0848456 dated: 29-12-2007 for a sum of Rs.30,000/- towards the same 30% of the sum assured payable on 28-03-2005 to the Respondent No.2 which has also not been encashed and credited to the loan account. The Respondent No.1 had not sent any intimation to the Complainant about sending the said cheques to the Respondent No.2 and thereafter when Complainant approached the Respondent No.2, he has stated that the said cheques sent by the Respondent No.1 has not been received due to which amount was not adjusted to the loan account. Further it is the case of the Complainant that, the Respondent No.1 has also not paid 30% of the sum assured i.e. Rs.30,000/- which was due to be paid on 28-03-2009 under assigned Policy. As per the loan agreement, the Respondent No.2 will charge interest and for non-payment of 30% of the sum assured on the respective due dates i.e. 28-03-2005 and 28-03-2009, the Complainant will have to unnecessarily bear the interest. If the said amounts were paid on the respective dates, it could have reduced the liability of the Complainant. Therefore, there was deficiency of service on the part of the Respondents. So the Complainant was constrained to file this complaint against the Respondents initially claiming the said 30% of the sums assured with interest and damages totally amounting to Rs.90,000/-.



5. Further it is the case of the Complainant that, after the Respondent No.1 and 2 appeared, during pendency of this complaint the Respondent No.1 has served a notice informing the Complainant that, a sum of Rs.60,204/- (Rs.30,000/- each payable on 28-03-2005 and 28-03-2009 + interest of Rs.204/-) has been paid to the Respondent No.2 vide Cheque No.058878 dated: 22-05-2009. Similarly, the Respondent No.2 has also served a notice of voucher No.0115794 dated: 22-05-2009 which disclosed that said sum of Rs.60,204/- has been credited to the loan account of Complainant on 26-06-2009. So under these circumstances, the Complainant has amended his complaint deleting the amount of Rs.60,000/-, but now he has only claimed interest for the said delayed payments along with damages totally amounting to Rs.45,055/- on the ground that the Respondent No.2 charges additional interest for defaulted installments for the delayed period and since the Respondent No.2 has stalled the cheques sent by the Respondent No.1 twice in the year 2005 and 2007, the Complainant is entitled to get interest for the delayed period on the said amount of Rs.30,000/- each and he also sought for damages for deficiency of service totally amounting to Rs.45,055/-.



6. The Respondent No.1 and 2 have appeared through their common counsel, but they have filed their separate written version wherein they have contended that, the Complaint filed by the Complainant is totally misconceived and same is not maintainable either in law or on facts. The Complainant has no locus standi to file the complaint at this premature stage. As a matter of fact, the Complainant has assigned Insurance Policy taken by him from the Respondent No.1 in favour of the Respondent No.2 which has been accepted by the Respondent No.1 so after such assignment, the Complainant has no right title or interest to make any claim in and over the Policy document. After assignment of the Policy, 2nd Respondent (assignor) becomes owner of the Policy and it is Respondent No.2 who holds right title and interest of the said Policy and it is he entitled to claim and receive the Policy money. When cheque dated: 28-03-2005 which was sent to the Respondent No.2 but not encashed a fresh cheque dated; 22-05-2009 for Rs.60,204/- which includes the survival benefits which were due on 28-03-2005 and 28-03-2009 with penal interest on delayed payment was sent and Respondent No.2 undertook to adjust the same to the loan account of Complainant and further undertook applicable interest for the delayed payments/adjustment to the loan account in due course, so at this premature stage, the Complaint is not maintainable and there is no negligence or deficiency of service. On these grounds, the Respondents have prayed for dismissal of the complaint.

7. The Complainant in support of his case has filed his affidavit evidence as P.W.1 and documents Ex.P.1 to Ex.P.6 and closed his side. The Respondents have filed their affidavit evidence as R.W.1 and R.W.2 and got marked documents Ex.R.1 to Ex.R.5 and closed their sides. Both parties have filed their written arguments and oral arguments of both the sides have been heard.

8. Now on the basis of these facts, the points that would arise for our consideration are;

1.


The Complainant having duly assigned the Insurance Policy issued by the Respondent No.1 in favour of the Respondent No.2, whether the Complainant is entitled to file a complaint against the Respondent No.1 for making any claim under the assigned Policy?



2.


Whether the Complainant has proved that there is any deficiency of service so as to put forward a claim for interest and damages from the Respondent No.2 as sought for in this complaint?



3.


What order?

//POINTS//
9. Our findings on the above points are as under.


Point No.1:


In Negative.

Point No.2:


In Negative.

Point No.3:


As per final order.

//REASONS//
Point No.1 & 2: -

10. As already stated above it is an admitted fact that, the Complainant who has taken a Life Insurance Policy from the Respondent No.1 for assured sum of Rs.1,00,000/- has been duly assigned in favour of the Respondent No.2 from whom the Complainant has taken housing loan and said assignment has been made after due notice to the Respondent No.1 and after receipt of said notice, the Respondent No.1 has registered the assignment. It is important to note that, such assignment of Life Insurance Policy is permissible under the Law i.e. Sec-38 of Insurance Act. It is also important to note that, on such assignment of the Policy all the rights and remedies of the transferor (Complainant) under the Policy vests in the transferee (Respondent No.2). On such assignment the Respondent No.2 steps into the shoes of the Complainant and it is only the Respondent No.2 who gets right title or interest to make any claim or enforce any right under the said assigned Policy. Therefore, after such due assignment of the Policy, the Complainant cannot put forward any claim under the said assigned Policy against the Respondent No.1 and he has no locus standi to do so as rightly contended by the Respondents. Therefore, we are of the opinion that, the complaint as against the Respondent No.1 is not maintainable. Even otherwise also according to the case of the Complainant that, the Respondent No.1 has promptly sent the cheques after due date of 28-03-2005 twice, but same has not been encashed by the Respondent No.2 for which the Respondent No.1 cannot be made liable and it cannot be treated that there is any deficiency of service on the part of the Respondent No.1. Hence, Point No.1 is answer in Negative.



11. It is no doubt true that, under the Policy assigned in favour of the Respondent No.2, 30% of sum assured was payable after 4 years i.e. on 28-03-2005 and another 30% of sum assured was payable after 8 years i.e. on 28-03-2009 and remaining 40% of sum assured was payable after 12 years and vested bonus was payable on the date of maturity i.e. on 28-03-2016. It is also no doubt true that, as and when sum assured was payable under the said Policy in view of the assignment of Policy in favour of Respondent No.2 from whom the Complainant availed the loan, the same was to be adjusted to the loan account of Complainant. It is also no doubt true that, though the Respondent No.1 had sent two cheques dated: 28-03-2005 and 22-05-2007 for a sum of Rs.30,000/- which was payable on 28-03-2005 was sent to the Respondent No.2 the same has not been encashed and subsequently vide cheque dated; 22-05-2009 the sum assured which was payable on 28-03-2005 and 28-03-2009 has been paid to the Respondent No.2 along with interest of Rs.204/- which has been adjusted to the loan account of the Complainant. But at this stage, the Complainant has not suffered any loss due to the said delayed payment which according to the Complainant amounts to deficiency of service. But at this stage, the Respondent No.2 has not claimed any interest from the Complainant for the said delayed period on the amounts of Rs.30,000/- and only if he had charged interest and claimed the said amount from the Complainant for the said period, the Complainant could have certainly raised this issue of deficiency of service which having caused loss to him. The Respondent No.2 may claim or may not claim interest at the agreed rate on the said amount of Rs.30,000/- for the said delayed period. The Complainant cannot file a complaint in anticipation that the Respondent No.2 will claim interest for the said period and on also cannot claim compensation towards deficiency of service. The Respondent No.2 in his Written Version has categorically stated that he undertakes to adjust applicable interest for the delayed payments/adjustments to the loan account in due course. So under such circumstances, at this stage, we are of the opinion that, it is not possible to award interest claimed by the Complainant with damages towards deficiency of service in anticipation that the Respondent No.2 may charge interest for the delayed period referred above. Therefore, ultimately at the time of settling the loan account if the Respondent No.2 charge interest even for the said delayed period for which the Respondent No.2 himself is responsible for non-encashment of cheques issued by the Respondent No.1, the Complainant will be at liberty to file a complaint as it would give a cause of action for filing the complaint. Therefore, now at this stage it is not possible to award interest and the damages claimed by the Complainant from the Respondent No.2. Accordingly, Point No.2 is answer in Negative.

C.C.No.71/2008

K.J.Duraisamy,

S/o.Late.P.Jayaramasamy gounder,

Periyathottam,

Kanagapuram Post,

V.Vellode Via, Erode Taluk. .. Complainant.

/Vs/;

1) The Branch Manager,

LIC of India,

Perundurai Branch,

V.K.P.Complex,

689-690,Chennimalai Road,

Perundurai, Erode District.

2) The Divisional Manager,

Divisional Office,

LIC of India,

P.B.No.3810, Trichy Road,

Coimbatore -18. .. Opposite parties.

This complaint came up for final hearing on 23.12.2009, before this Forum, in the presence of Tmt.K.M.Madhubala, B.Sc.,BEd., L.L.B., Advocate for the complainant, and Thiru.K.Ranganathan,M.A., L.L.B., Advocate for opposite parties, and upon hearing the arguments of bothsides, and on perusal of the records and having stood for consideration till this day, this Forum passed the following :-

ORDER

Complaint filed under section 12 of the Consumer Protection (Amendment) Act 2002. The averments in the complaint are as follows : - Complainant’s Father P.Jayaramasamy Gounder has taken on Endowment Policy No.762437475 on 15.12.98 for Rs.1,00,000/- from the opposite parties. The date of maturity is 15.12.2008. Yearly

/2/

Premium was paid regularly upto the year 2002. The Insured Jayaramasamy Gounder died on 13.8.03, before the maturity date. As per the terms of the policy full payment has to be made by the opposite parties to the complainant, nominee of the insured. The complainant submitted all the required documents along with the claim form to the opposite parties. The complainant approached the opposite parties and also reminded through letters dated 27.8.2003, 29.12.03, 28.01.04, 15.4.04, 10.5.04 and 17.8.04. Finally, the complaint has issued a legal notice dated 15.6.08 to the opposite parties. The 1st opposite party replied to the complainant on 5.4.04 and 26.4.04 requiring want of age proof of the complainant, which is in no way connected to the policy. But it was also complied by the complainant. On 22.7.04, the 2nd opposite party had repudiated the claim and informed the complainant if any it is satisfaction regarding, can be represented within a month, to Marketing C.S./CRC Department, LIC of India, Southern Zonal Office, LIC Building, Annasalai, Chennai 600 002. Further a letter dated 18.3.05, of the 2nd opposite party has stated that, “ No further appeal will be entertained by our higher authorities and the decision is final”and furnished the address of the Insurance Ombudsmen for appeal. The complainant again issued a legal notice dated 5.6.08 for which the 2nd opposite party issued a reply letter dated 13.6.08 stating “nothing will be payable under the policy since there is under statement of age which is against the policy conditions”. Dissatisfied with the reply of the 2nd opposite party, the complainant filed a complaint before this Forum for the following reliefs , 1) To direct the opposite parties to pay the insured sum of Rs.1,00,000/- with 9% interest from the date of the death of insured i.e. 13.8.03 till recovery, 2) To direct the opposite parties to pay Rs.1,00,000/- towards compensation for mental agony, stress, deficiency of service and unfair trade practice.

2) Counter averments of the opposite parties :- The claim under the policy was repudiated and a communication to that effect was sent to the complainant on 22.7.04. The complainant had made an appeal to the Zonal Claims Review Committee on 20.8.04 which was also turned down on 18.3.05. The complaint has been filed in the year 2008, after a lapse of 3 years and hence, as per provisions of Consumer Protection Act, 1986, the complaint is barred by limitation. It is admitted that a legal notice was served on this opposite party on 5.6.08 but it is a well settled law that mere issue of a legal notice does

/3/

not provide a new cause of action. Hence the complaint is hopelessly barred by limitation and is to be dismissed.

3) Admittedly, the Complainant’s father (late) Jayaramasamy had submitted a proposal for insurance on his own life on 14.12.98. Based on the facts given therein, declared by him to be true, an endowment policy No.762437475 was issued on his life on 15.12.98 for Rs.1,00,000/- commencing from 15.12.98 for a term of 10 years, yearly premium payable is Rs.12,097/-. Son of the life assured, K.J.Duraisamy was the nominee under the policy.

4) In the proposal form signed by the life assured, the age of the life assured has been mentioned as 57 and age of his son, complainant, nominee has been mentioned as 38. The life assured cannot paid the yearly premium due December 2000 and thus the policy was in a lapsed condition, till the same was revived on 8.8.2001, on the strength of declaration of good health and medical report, thus entering in to a fresh contract with the opposite parties. The son of the life assured intimated this opposite party about the death of the life assured on 13.8.03. As per the standard practice of this opposite party, claim forms were issued to the son of the life assured without prejudice, being the nominee under the policy. Being an early claim, as per the normal procedure, an investigation was also caused to ascertain the genuineness of the claim. The investigation findings revealed that the life assured had given false information regarding his age and his son’s age at the time of submitting the proposal. The life assured was actually more than 70 years on the date of proposal, whereas he had, in order to get insured in the old age fraudulently misstated his age as 57. It is to be noted that policies under endowment plan are issued only to eligible lives in the age group of 14 to 65. Had the proposer stated his real age, this high risk plan would not have been issued to him at that uninsurable age of 70. The proposal would have been declined at the time of underwriting the proposal itself.



5) The Nominee/Complainant who is the son of the life assured had submitted an application for agency dated 23.12.98 before the 1st opposite party in which his date of birth has been mentioned as 7.6.1951. In the attested copy of his Secondary School Leaving Certificate also the date of the complainant has been mentioned as 7.6.1951. In

/4/
the Family Ration Card for the period 1998-2003 age of the life assured Jayaramasamy Gounder has been mentioned as 70 and the age of the complainant has been mentioned as 45. In the claim form submitted by the complainant on 24.9.03, the age of the complainant has been mentioned as 43 and the age of the assured Jayaramasamy gounder has been mentioned as 62. The complainant himself vide his letter dated 4.11.03 has declared that the age of his father Jayaramasamy is around 75 years. The age of the Life Assured’s Wife to be 70, Daughter Marathal aged 53 and the complainant aged 51. This contradicts the statement of the complainant in the claim form dated 24.9.03 and also Life Assured’s statement in proposal form dated 14.12.98.

6) As per the findings in the investigation report and documents mentioned supra, this opposite party could prudently and lawfully come to the conclusion that age of the late Jayaramasamy as on the date of filing up the proposal., i.e.14.12.1998 was about 70 years. As per the school certificate of the son of the life assured, nominee’s age on the date of proposal should be (471/2) 48 years. But as per the statement of the life assured in the proposal form, his age is 57, when, without an aorta of doubt, one can say, he cannot biologically have a son aged 48, difference between the ages of father and son being 9 years. Moreover, son himself declares that his elder sister is 2 years older than him. This shows the first issue was born to the life assured when he was 7 years old, quite incredible to a normal prudent man. This clearly brings out the intention of the life assured to obtain a high risk policy form this opposite party to cover his life at an advanced age knowing fully well that disclosure of his actual age would end up in declining a life cover to him at the proposal stage itself.

7) Moreover, contract of insurance is based on the principles of uberima fides – utmost good faith. A fraudulent suppression or misrepresentation of fact in the proposal form vitiates the contract as per condition No.4 endorsed on the policy document. In para 4 of the complaint it has been stated that the yearly premium was regularly paid upto the year 2002, contradicts the fact that the policy had lapsed for non payment of 12/2000 due premium instalment and the policy was revived on 8.8.2001. The life assured had given wrong statement not only at the time of proposal but also at the time of reviving on

/5/

8.8.2001. Policy terms and conditions should be perused in Toto and it is not to be interpreted to the advantage of the claimant/complainant and deliberately ignoring the policy condition No.5. It was right and lawful on the part of the insurer under the body of the policy conditions, to repudiate the claim arising out of the contract void abinitio, which absolves the opposite parties from the liability of making any payment under the policy. There is no deficiency in service or unfair trade practice on the part of the opposite parties as alleged in the complaint. The complaint is liable to be dismissed with cost.

8) On the basis of the complaint averments and counter averments the following issues are framed for consideration :

1) Whether the complaint is barred by limitation?

2) Whether there is any deficiency in service and unfair trade practice on the part

of the opposite parties?

3) Whether the complainant is entitled to the reliefs as prayed for?

9) Complainant K.J.Duraisamy, has been examined as PW1 and Exhibits A1 to A18 have been marked. On the side of the opposite parties Thiru.D.Loganathan, Manager, (Legal and HPF) of the opposite parties has been examined as RW1 and Exhibits B1 to B9 have been marked.

10) Issues No.1 : The xerox copy of the Endowment Policy No.762437475 dated 15.12.98 of the opposite parties has been marked as Exhibit A3. The receipts for the remittance of the amount of Rs.12,287/- by the insured dated 14.12.98 and the letter of the 1st opposite party for refund of Rs.190/- by way of cheque has been marked as Exhibit A2 series. Payment of premium by the insured for 5 years has been marked as Exhibit A1 series. The xerox copy of the Proposal form submitted by the insured has been marked as Exhibit A4. The above said documents are not disputed by the opposite parties. The insured died on 13.8.03. The Dinamalar advertisement dated 14.8.03 for the death of the insured Jayaramasamy gounder has been marked as Exhibit A6. The original Death Certificate of the insured Jayaramasamy gounder, issued by the Erode Municipality has been marked as Exhibit A7. Death Certificate issued by the Revenue

/6/
Department dated 22.8.03 has been marked as Exhibit A8. Xerox copy of the Legal Heir Certificate of the insured Jayaramasamy gounder has been marked as Exhibit A9. Third party affidavit of Thiru.K.A.Varadharaj has been marked as Exhibit A10. Xerox copy of the 3rd party affidavit of Thiru.K.P.Kotravel has been marked as Exhibit A11. Xerox copy of the statement of witnesses Thiru.K.C.Paramasivam and Thiru.K.A.Varadarajan has been marked as Exhibit A12. The 6 letters written by the complainant to the 1st opposite party, dated 27.8.03, 29.12.03, 28.1.04, 15.4.04, 10.5.04 and 17.8.04 and the legal notice dated 17.8.04 issued to the opposite parties have been marked as Exhibit A17 series. The reply letters of the 1st opposite party dated 5.4.04, 26.4.04, 22.7.04 , 18.3.05 and 13.6.08 has been marked as Exhibit A18 series. The true copy of the proposal form submitted by the insured Jayaramasamy has been marked as Exhibit B1. True copy of the claim form submitted by the complainant dated 24.12.03 has been marked as Exhibit B2. True copy of the Claim Investigation Report dated 4.11.03 has been marked as Exhibit B3. Xerox copy of the Ration Card attested by the complainant has been marked as Exhibit B4. True copy of the Declaration letter sent by the complainant to the 1st opposite party dated 4.11.03 has been marked as Exhibit B5. The true copy of the agency application sent by the complainant dated 23.12.98 has been marked as Exhibit B6. True copy of the Secondary School Leaving Certificate of the complainant dated 20.5.1970 has been marked as Exhibit B7. The Claim Repudiation letter dated 22.7.08 to the complainant by the 2nd opposite party has been marked as Exhibit B8. True copy of the reply legal notice dated 13.6.08 of the 2nd opposite party has been marked as Exhibit B9.

11) Para 3 of the Counter filed by the opposite parties reads, “The Opposite party submits that, the claim under the policy was repudiated and a communication to that extent was sent to the complainant on 22.7.04. The complainant had made an appeal to the Zonal Claims Review Committee on 20.8.04 which was also turned down on 18.3.05. The complaint is filed in the year 2008, after a lapse of 3 years and hence, as per provisions of Consumer Protection Act, 1986, the complaint is barred by limitation. It is admitted that a legal notice was served on this opposite party on 5.6.08 but it is a

/7/



well settled law that mere issue of a legal notice does not provide a new cause of action. Hence the complaint is hopelessly barred by limitation and is to be dismissed.”

True copy of the Claim form submitted by the complainant to the 1st opposite party has been marked as Exhibit B2. The true copy of the Claim Repudiation Letter sent by the 2nd opposite party to the complainant, dated 22.7.04 has been marked as Exhibit B8. Against that order, the complainant has submitted an appeal to the Review Committee on 20.8.04 and the same has been turned down on 18.3.05 by the 2nd opposite party. It has been clearly mentioned in Para 8 of the complaint reads,

“Further the complainant begs to state that on a letter dated 18.3.05 the 2nd opposite party has stated that “No further appeal will be entertained by our higher authorities and the decision is final”. We furnish hereunder the address for Insurance Ombudsmen for appeal.

Insurance Ombudsmen

Fathima Akthal Court,

4th Floor, 312, Anna Salai,

Teynampet,

Chennai 600 018”



From para 3 of the complaint it is learnt that the 2nd opposite party has dismissed the appeal filed by the complainant and also stated that no further appeal will be entertained by the higher authorities of the LIC of India and on the decision in the appeal is final. The complainant has been further informed the address of the Insurance Ombudsmen for further appeal. The complainant did not appeal to the Insurance Ombudsmen. The claim of the complainant has been finally turned down by the 2nd opposite party on 18.3.05. The complaint must have been filed within two years from 18.3.05 i.e. on or before 17.3.07. But this complaint has been filed in June 2008 only, after a lapse of 3 years.

Sec.24(A) of the amended Consumer Protection Act 1986 reads, “ Limitation period.-

(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

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(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complaint satisfied the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”

Hence the complaint filed by the complainant on 27.6.08 is barred by limitation. The complainant did not file petition under Sec.24(A) of the Consumer Protection Act to condone the delay. After the limitation period was over, the complainant has sent legal notice and wrongly calculated the limitation from the date of reply from the 2nd opposite party i.e. Exhibit B9. The mere issue of legal notice does not provide a new cause of action to the complainant. Hence the complaint filed by the complainant is hopelessly barred by limitation. Hence the complaint is not maintainable and liable to be dismissed. Hence the other issues 2 and 3 were not considered.

12) In the result, the complaint is dismissed. Considering the facts and circumstances of the case, there is no order as to cost.

Dictated to the Assistant/Steno-Typist, transcribed by him, corrected and pronounced by us in the open Forum this the 30th day of December 2009.

CONSUMER COMPLAINT NO:107/2007.

1. Smt.G.Sumathi,

W/o.Late.V.Gershom @ Gershom Rajapal Selvakumar,

1/65, North Street,

Kunganthanpari,

Tirunelveli 627 007.

2. Lipna Vijo,

D/o.Late V.Gershom @ Gershom Rajapal Selvakumar,

1/65, North Street,

Kunganthanpari,

Tirunelveli 627 007. …Complainants.

..vs..

1. The Branch Manager,

Life Insurance Corporation of India,

Srivaikuntam Branch,

Tuticorin District.

2. The Divisional Manager,

L.I.C. of India,

Palayamkottai,

Tirunelveli.

3. The Zonal Manager,

Southern Zonal Office,

L.I.C. Buildings, 102, Anna Salai,

Chennai. … Opposite parties.
This complaint came before us for final hearing on 25-11-2009 in the presence of Thiru M.Ramanathan, Avocate for the complainants and Smt.S.Jeyalakshmi, Advocate for the opposite parties and having stood over till this day for consideration this Forum made the following:



ORDER

This complaint is filed under section 12 of Consumer Protection Act 1986.

1) The averments of the complainant in the complaint are briefly as follows: The 1st complainant is the wife of Late V.Gershom. Mr. Gershom was appointed as Forest Guard in the Tamil Nadu Forest Department on 3-11-2000. While he was in Government Service, he obtained a Insurance Policy for Rs.1,00,000/- on 26-7-2005 with the 1st opposite party. He had paid the premium amount of Rs.400/- and the 1st opposite party had issued receipt for that. The number of policy is 321719465. The 1st complainant is the nominee of her husband Gershom. While taking the policy the policy holder was hale and healthy and free from any ailment. The 1st opposite party examined the policy holder medically and found his health normal and then only issued policy certificate to the policy holder on 26-7-2005. The 1st opposite party also collected charges for medical examination from policy holder. When the policy holder was on duty on 24-9-2005 at 2-30 P.M., he was suffering from severe and massive heart attack and he died on the way to hospital. After his death the 1st complainant submitted claim application to the 1st opposite party claiming the policy amount of Rs.1,00,000/-. He produced all the required documents along with the original policy certificates to the 1st opposite party. The 2nd opposite party sent a letter dated 30-5-2006 in which it has been stated that the claim of the 1st complainant was repudiated since the policy holder have withheld material information regarding his health at the time of taking the policy. The policy holder had no ailment at the time of taking the policy or prior to the date of policy. The opposite party deliberately refused and settled the amount to the 1st complainant. Hence the 1st complainant sent a legal notice to the opposite parties on 16-4-2007. The opposite parties after receiving the notice have not sent any reply nor settled the amount. The attitude of the above opposite parties amounts to deficiency of service. Hence the complainant have filed this complaint to direct the opposite parties to settle the claim with interest of 12% per annum and to pay Rs.50,000/- as compensation for mental agony and cost of this case.

2) The averment in the counter filed by the opposite parties are as follows: The complaint is not maintainable either in law or on facts. It is true that Mr.V.Gershom had taken a LIC policy with the 1st opposite party on 26-7-2005 for Rs.1,00,000/-. The premium payable is Rs.400/- on quarterly mode. He has nominated his wife the 1st complainant as his nominee. The 1st opposite party received death intimation along with claim form from the complainants stating that the assured died on 24-9-2005 due to massive heart attack. As the death was within two years from the date of this policy the opposite parties arranged for an investigation. The investigation revealed that even before the date of policy the life assured was suffering from ‘A C Gastritis’ and he had taken medical leave for 15 days from 8-3-2005. The policy holder with the connivance of an agent who is close relative of him suppressed the material facts with intention to defraud the opposite parties. As there is suppression of material facts there is no concluding contract between the life assured and the opposite parties. Hence after due investigation the claim of the complainants were repudiated by the 2nd opposite party on 30-3-2006. The complainants if they had any grievances against the order of the repudiation can challenge it before the 3rd opposite party. But the complainants hurriedly rush to this Forum without approaching the 3rd opposite party, because they know that the life assured had suppressed the material facts before taking the policy and the repudiation order passed by the 1st and 2nd opposite parties would be confirmed by the 3rd opposite party. As the claim was already repudiated there is neither deficiency of service nor unfair trade practice on the part of the opposite parties. This Form has no jurisdiction to entertain this claim. If the complainants got any remedy they have to move only the Civil Court. After receipt of legal notice sent by the complainants the 1st complainant met the 2nd opposite party in person and she was informed that her claim was repudiated for suppression of material facts. Hence they have not sent any reply. The complainants are not entitled to any claim amount or any compensation from the opposite parties. Hence the complaint is liable to be dismissed.

3) The points for considerations are;

1. Whether there is any deficiency of service on the part of the opposite parties and if so;

2. To what relief the complainants are entitled to?

4) Points: To prove the case of the complainants proof affidavit of 1st complainant was filed and Ex.A1 to Ex.A7 were marked. Ex.A1 is the application for claim sent by the 1st complainant to the 1st opposite party. Ex.A2 is the letter from the opposite parties to the 1st complainant. Ex.A3 is the letter from the 2nd opposite party repudiating the claim of the complainants. Ex.A4 is the legal notice issued by the 1st complainant to the opposite parties and Ex.A5 are acknowledgements of the opposite parties. Ex.A6 is the legal heir certificate of the life assured V.Gershom. Ex.A7 is the death certificate of the life assured V.Gershom.

5) On the side of the opposite parties proof affidavit of the 2nd opposite party was filed and Ex.B1 to Ex.B8 were marked. Ex.B1 is the proposal form submitted by the life assured V.Gershom and Ex.B2 is the agent confidential report on the life assured and Ex.B3 is the insurance policy of the life assured and Ex.B4 is the medical certificate issued to the life assured by Dr.A.M.Jayakumar and Ex.B5 is the medical fitness certificate issued by the same doctor Ex.B6 is the application sent by the 1st complainant to the 1st opposite party claiming the assured amount and Ex.B7 is the death certificate of the life assured V.Gershom and Ex.B8 is the letter from the 2nd opposite party to the 1st complainant repudiating her claim. It is admitted by the opposite parties that the husband of the 1st complainant V.Gershom had taken a life insurance policy with the 1st opposite party for Rs.1,00,000/- and the premium amount payable is Rs.400/- quarterly and he had nominated the 1st complainant his wife as nominee. The opposite parties had not denied that the life assured V.Gershom died due to massive heart attack. The opposite parties would contend that the claim of the 1st complainant was repudiated on the ground that he had suppressed material information regarding his health at the time of taking the policy. In the proposal form Ex.B1 in column No.11 against the question whether the life assured was admitted to any hospital or nursing home for general check up, observation, treatment or operation, the life assured had stated as no and against the question whether he is suffering from any disease? he had also stated as no. Counsel for the opposite party would contend that prior to the taking out insurance policy the life assured was suffering from diseases and he had suppressed this material fact in the proposal form and thereby she is not entitled for the claim amount. Counsel for the complainants argued that the life assured was not suffering from any diseases before taking out the insurance policy and he was never admitted for treatment etc. in a hospital or nursing home. Counsel for the opposite parties would contend that Ex.B4 and Ex.B5 are the medical certificates and the fitness certificate received by the life assured V.Gershom from Dr.Jeyakumar Civil Surgeon Government Hospital Srivaikuntam which would prove that the life assured was on leave for 15 days from 8-3-2005 and he joined on duty only on 23-3-2005 thus he had suppressed the material fact in the proposal form and as per the citation in LIC Legal Digest April 2009, the complainants are not entitled for any amount from the opposite parties since their claim was repudiated on the ground that the life assured had not disclosed about the medical leave availed by him at the time of proposal. Counsel for the complainant argued that From Ex.B4 and Ex.B5 it is seen that the life assured had obtained medical certificate and fitness certificate from a doctor and whether the above certificates were used by the life assured and whether he actually went on medical leave from 8-3-2005 based on the above medical certificate was not proved by the opposite parties by any evidence or documents. He would further contend that just because the life assured had received medical certificate and fitness certificate it could not be concluded that he entered into medical leave based on the above certificate from 8-3-2005. No evidence or documents have been produced to show that the life assured was actually on medical leave for the above period. Hence the question of suppressing the material facts in the proposal form does not arise.

6) Counsel for the opposite parties would contend that as per citations in LIC Legal Digest April 2009 page 82 since the deceased life assured had withheld information regarding his health at the time of proposal, the repudiation of claim by the opposite parties is correct and hence the complainants are not entitled for any reliefs as asked for. No documents were produced by the opposite parties except Ex.B4 and Ex.B5 to show that the deceased life assured was suffering from any ailment, graver diseases. Under Ex.B4 the deceased life assured obtained a medical certificate from doctor as if he was suffering from ‘A C Gastritis’, it is admitted by the opposite parties that the deceased life assured died due to massive heart attack. ‘AC Gastritis is not a disease which requires taking good amount of medicines and treatment. It is an ordinary disease which would not lead to heart attack. Hence even if it is proved that the deceased life assured was suffering from AC Gastritis before taking out the policy since it would not lead to heart attack and there is no nexus between the disease noted and the causes of the death of the life assured it cannot be said that the life assured had suppressed material information in the proposal form.

7) In the circumstances stated above we hold that the reasons for repudiating the claim of the complainants by the opposite parties are not sustainable and there is deficiency of service on the part of the opposite parties in not allowing the claim of the complainants. Hence we hold that the complainants are entitled for the reliefs as asked for. We decide these points accordingly.

8) In the result the complaint is allowed and the opposite parties are directed to settle the claim of policy No. 321719465 in a lawful manner with interest at 9% from the date of this complaint till the date of realization of the amount and to pay Rs.10,000/- as compensation for the mental agony caused to the complainants and Rs.2000/- towards costs within two months from the date of this order failing which the complainant is at liberty to execute this order u/s.25 and 27 of the Consumer Protection Act, 1986.

Dictated to the Steno-typist, taken and typed by him and corrected by me and pronounced by us in the Open Forum on this the 8th day of December 2009.

Case No. DF 51/2007
Smt. Soma Nath ,

Vill. Ondaran Fulbari ( Dariabala Road),

P.O. Tufanganj, Newtown

Cooch Behar …………….…………………. Complainant


Vs

1. Life Insurance Corporation of India,

Cooch Behar Branch ,

Prince V. M.N. Narayan Road,

Cooch Behar .



2. Life Insurance Corporation of India ,

Jalpaiguri Divisional office,

Jiban Prakash,

Jalpaiguri ………………….. …………. ……OP.S.

The case of the Complt. is in brief that Samit Kr. Nath the husband of the complt. obtained some policies during his life time from the OP LICI. The OP issued one of the policy on 31.03.03 bearing policy No 453266051 of the sum assured of Rs.5,00,000/- and the complt. was made nominee in the policy.

Unfortunately the husband of the Complt. died on 26.03.04. A police case was started due to the unnatural death and inquest was done. The p.m. was accordingly held but no final opinion was given about cause of death and the visera was sent to FSL for report. As per the opinion dt. 31.04.06 no poison could be detected in visera .

After collecting necessary documents the complt. submitted claim in respect of policy No 451072398, 450444784, and 453266051. The OPS settled claim of two policies but did not settle the claim of policy No 453266051.

The complt. submitted all documents as per demand but the OPS intimated by letter dt. 25.01.07 that the claim has been repudiated
Therefore the complt. has filed the complaint against the OPS praying for reliefs as mentioned in the complaint.

The OPS are contesting the case by filing w/v , affidavit contending inter alia that the case is not maintainable in law and in fact.
The OPS have stated that the husband of complt. had four policies being No 451072398, 450444784, 453266051,453268015 though the complt. has not mentioned the 4th policy No 453268015. The first two policies were non early in nature, and the claim amount has been settled as per usual procedure but other two policies bearing No 453266051 and 453268015 were very easy claim in nature and in case of very early claim enquiry before making payment is must.

After enquiry it revealed that there was suppression of material facts so far the health of life insured is concerned.

The policy holder was a Alcoholic and prior to 10.07.06 he consumed Alcohol excessively and started addiction when he was 27 years. The fact has been ascertained by letter dt. 17.07.06 of ‘ Sebayan Drug De Addiction centre’.
The husband of complt. had also cronic epilepsy problem. The father of the policy holder submitted the statement on 25.09.04. The medical certificate of Dr. Subhas Chandra Saha dt. 23.06.06 also fortify such facts.

The deceased thus suppressed the material facts intentionally in item No 1&111 while signing the proposal form and obtained policy in question.

The Policy of Insurance rest on the good faith and OPS rightly repudiated the claim policy in question.

The OPS have therefore prayed for dismissal of the case with cost.
Points for determination

No(1) Whether the O.P.S caused deficiency in service against the Complt. by repudiating her claim in respect of the policy in question?

No (2) Whether the Complt. is entitled to get the relief, as prayed ?

Decision with reasons

Perused the evidences, documents adduced by both parties and the affidavit in chief filed by the Parties and decisions referred on behalf of the OPS. Considered.
It is case of OPS that they repudiated the claim of the complt. in respect of policies No 453266051 and 453268015 after conducting enquiry . The complainant has claimed the insured amount of Rs. 5 Laechs in respect of policy No 453266051 which has not been settled and in silent in respect of the other policy No 4532680015.

The claim has been repudiated on the ground of suppression of material facts.

It is stated that policy holder was alcoholic and has epilepsy problem which has not been disclosed in the proposal form and obtained the policy in question.

It is to be decided whether the policy holder suppressed the material facts as because the policy of Insurance rest on the good Faith. The contract of Insurance is concluded only when offer is being accepted unconditionally.

It appears that proposal for Assurance was made and in answer to question numbers No 11 of the proposal Form his answers were as under:

question No 11 (d).

Are you suffering from on have you ever suffered from High blood pressure, diabetes, cancer, Laprosy, Epiolepsy etc or any other discase?

Ans. No

H (1) Did you or have used Alcoholic drinks ?

Ans. No.
It is seen from certificate or of Dr. Subhas Saha ( vide form No 5152) dt. 23.06.06 in question No 5 ( a ) where the answer is occasionally taking of alcohol 10 yrs & daily for 1 year.

The O.P. has also filed copy of prescription dt. 2.6.03 of Dr. Saha and statement dt. 25.09.04 submitted by father of the decaused to O.P. It further appears from the certificate dt. 17.07.06 issued by Sebayan drug De Addiction centre that Samit Kr. Nath S/o. Sri, Gour Hari Nath was admitted on 19.01.04 for his addiction to Alcohol.

Therefore it can be said that the person intending to take the policy had exclusive knowledge of the taking of alcohol and the discase but was not disclosed.

The OPS have filed cogent documentary evidences to prove that the deceased was actually suffering from ailments prior to taking his policy and he suppressed that matter.

It is laid down in a decision reported in 2005 ( 1) CPR 39 ( NC) that “ where the assured while submitting proposal for insurance suppressed material fact that sometime before he had undergone tumour decompression surgery, LIC would be justified in repudiation of claim where assured died of brain tumour.

It is decided in case LIC of India ( App) Vs Smt. Keshanti Devi & Anr. ( Res) ( Appeal No 1238195) reported in Legal Digest April 2001 that ‘the insured had suppressed material facts and that the claim has been repudiated in good faith after conducting proper enquiry and that the insurer can not be blamed for deficiency in service.’

Therefore considering the materials on record we hold that OPS caused no deficiency in service against the complt. by repudiating the claim of the Complt.

Point No 2: It is already decided that OP caused no deficiency in service against the complt. and complt. is therefore not entitled to get any relief as prayed
Ordered

That the complaint dt. 10.07.07 of the complt. is dismissed on contest.

Case No.1050/08

Brij Mohan Gupta, C-4/261, Sector 6, Rohini, Delhi – 85.

……Complainant

Versus

1. Life Insurance Corporation of India. Through Sr. Branch Manager, LIC of India, Br. Unit No.12-E, Local Shopping Complex, Naraina, Delhi – 28.

2. Sr. Divisional Manager, LIC of India, Delhi Divn.III, Jeevan Pravah Tower, Distt. Centre, Janakpuri, New Delhi – 58.

……..Opposite Parties



CORAM : J.P. SHARMA : PRESIDENT

: S.M. MAZUMDAR : MEMBER

: DR. PREMLATA : MEMBER

O R D E R

J.P. SHARMA (PRESIDENT) :

In brief, complainant’s case is that his wife Smt. Santosh Gupta got one Life Insurance Policy under Plan/Term 14-21 for Rs.51,000/- under proposal dated 19.02.2004 and another Insurance Policy under Plan/Term 14-20 for Rs.49,000/- vide proposal dated 20.05.2004. It is stated that the agent/development officer of OP made Smt.Santosh Gupta to sign two sets of pre-printed blank proposal papers advising her to have two policies with the promise to provide xerox copy thereof which was never supplied. It is stated even prior to that Smt.Santosh Gupta was having another insurance policy. Before issuing the insurance policies under the above proposal forms Smt.Santosh Gupta was medically examined by Dr.Usha Garg, M.B.B.S. Medical Examiner on the panel of OP. OP also obtained the reports of their agent and Branch Manger and thereafter issued the two policies referred to above for which the premiums were duly paid. It was in November, 2004 that Smt.Santosh Gupta suffered from Jaundice for the treatment of which she was admitted in Maharaja Agrasein Hospital on 14.04.2005 where she ultimately expired on 15.05.05. Complainant being the husband and nominee of his deceased wife lodged claims with OP insurance company which was repudiated by OP insurance company vide letter dated 9/12-11-05. The reason for repudiation of complainant’s claim was that Smt.Santosh Gupta in the proposal form made false declarations regarding her health as under :-

“11(a) During the last five years did you consult a No

Medical Practitioner for any ailment or requiring

Treatment for more than a week?

11(b) Have you ever been admitted to any hospital or No

nursing home for general check up, observation,

treatment or operation?

11(d) Are you suffering from or have you ever suffered No

from ailment pertaining to Liver, Stomach, Heart

Lungs, Kidney, Brain or Nervous System?

11(e) Are you suffering from or have you ever suffered No

from Diabetes, Tuberculosis, high Blood Pressure,

Cancer, Epilepsy, Hernia, Hydrocel, Leprosy or

Or any other Disease?

11(i) What has been your usual state of health? Good”
In the repudiation letter, it was further stated as under :

“We may, however, state that the above answers were false as we hold indisputable proof to show that before she proposed for the above policy she was a K/C/O CRF with HTN with ESRD with Hepatitis B & C for which she consulted a doctor and was under treatment since last 2 years. She did not however disclose these facts inher proposal form/personal statement.”

OP filed their written statement wherein they pleaded on the lines on which complainant’s claim was repudiated as indicated above.

In support of his claim complainant filed his own affidavit while on behalf of OP affidavit of Sh.S.K. Sahai, Admn. Officer, Divisional Office-III was filed.

We have heard Sh.Deepak Singhla -Ld. Counsel for complainant, Sh.Manoj Kumar – Ld. Counsel for OP, have gone through the material on record and have considered their relevant contentions.


At the very outset we would like to observe that OP have succeeded in establishing on record that deceased Smt.Santosh Gupta made false declarations in the proposal form regarding her state of health. We have already indicated above the replies given by Smt.Santosh Gupta to Questions No.11(a) to 11(i) of the proposal forms whereby she declared that her usual state of health was good while the things were later on found otherwise. OP to prove that Smt.Santosh Gupta was a known case of CPF+HTN+ESRD+Hepetitis B & C have placed on record Medical Attendant’s Certificate exhibit OPW1/3 wherein Dr. M.N. Ansari (Gold Medalist) BUMS (DU) had declared that Medical Attandant of Smt.Santosh Gupta declared that he was attending to the deceased for her illness for the last two years and that Smt.Santosh Gupta was suffering from HT since 1996. This Medical Attendant’s Certificate clearly states that primary cause of death of Smt.Santosh Gupta was Hepatitis B and secondary cause had been Hepatitis C + renal failure +metabolic Encephalopathy. Then there is Certificate of hospital treatment exhibit OPW1/4 issued by Dr.B.S. Solanki, MD, DM which also confirms the findings of Dr. M.N. Ansari recorded in Medical Attendance Certificate exhibit OPW1/3. A copy of the treatment sheet of Maharaja Agrasein hospital has also been placed on record by OP which has been proved as exhibit OPW1/5. In this death summary it is clearly stated that Smt.Santosh Gupta was a known case of CPF+HTN+ESRD+Hepaitis B & C. It is well known that Hepatitis B & C are both incurable and fatal diseases. Then there is a definite declaration in the Death Summary regarding deceased Smt.Santosh Gupta which reads as under :-

“On maintenance Hemo dialysis since past 2 ½ years.”

The above death summary was prepared on 15.05.2005 and it is stated in clear terms therein by the Medical Officer of Maharaja Agrasein Hospital that Smt.Santosh Gupta was on maintenance Hemo-dialysis since past 2 ½ years. This Death Summary thus makes it abundantly clear that Smt.Santosh Gupta was on maintenanace Hemo dialysis even prior to her having filled in the proposal forms dated 19.02.2004 and 20.05.2004.



The original proposal forms have also been proved on record by OP as exhibit OPW1/1 and OPW1/2. We have already reproduced above the replies given by Smt. Santosh Gupta regarding her state of health on the date she made declarations in the proposal forms which declarations stand belied from the Medical evidence produced on record by OP discussed in brief above.

As a result of what has been discussed above, we conclude that Smt.Santosh Gupta obtained two Life Insurance Policies in question by making false declarations about her state of health in the proposal forms and as such the present claim filed by her husband being nominee fails and is hereby dismissed. Parties are left to bear their own cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge. Thereafter, the file be consigned to the Record Room.

Consumer Complaint No: 146/2007

Date of presentation: 14.05.2007

Date of decision: 06.01.2010
Shanti Tegta W/O Lt. Dr. D.R.Tegta,

R/O Village and P.O. Malat, Tehsil Chopal,

District Shimla, H.P.

… Complainant.

Versus

1. LIC of India

Through its Divisional Manager

Block No.14 & 15, SDA Complex,

Kasumpti, Shimla-171009.

2. The Branch Manager,

LIC of India, Sanjauli Branch,

Shimla-171006, Unit No.II.

…Opposite Parties.

For the complainant: Mr. Y.K. Thakur, Advocate.

For the Opposite Parties: Mr. G.D. Sharma, Advocate.

O R D E R:

Sureshwar Thakur (District Judge) President:- This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers, that, her deceased husband was the holder of two life insurance policies, bearing No.150481942 & 150034275, who met his end on, 29.09.2002, during the subsistence of the aforesaid policies, when he, is, averred to be on official tour. It is averred that after the death of the policy holder, the claim was lodged with the OPs-LIC, after completion of all the codal formalities. The complainant further proceeded to aver, that, the OPs-LIC, declined to indemnify her, being the legally wedded wife and nominee of the deceased, and also refused to pay the double accident benefit. Hence, feeling dissatisfied and aggrieved by the act of the OPs-LIC, the complainant has filed this complaint, praying for grant of relief as claimed in the relief clause.

2. The OPs-LIC, in its written version, to the complaint, raised preliminary objections, regarding maintainability of the complaint, inasmuch, as barred by limitation, and infraction of terms and conditions of the policy. On merits, it is contended that, the basic sum assured arising out of the two policies amounting to Rs.3,16,245/- along with bonus had already been defrayed to the complainant, on, 25.11.2002. They further contend that, the double accident benefit, is not defrayable on account of the fact that the deceased was under the influence of liquor, hence, the intoxication of liquor was directly attributable to the cause of the death of the deceased life assured, as such, amounts to infraction of terms and conditions of policy bonds. Hence, it is denied that there was any deficiency in service on their part.

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

4. The complainant is aggrieved, by the act of the OPs-LIC, in not defraying to her the benefits of double accident, arising out of two life insurance policies, so purchased by her deceased husband, from them. The OPs-LIC, has repudiated the claim of the complainant, on the ground that the benefits of double accident, is, not payable on account of infraction of terms and conditions of the policy, as the deceased life assured, at the time, when he met his end, was under the influence of liquor, and the said fact and not the injuries sustained in the accident having caused his demise.

5. At the very out set, it is incumbent upon us, to adjudicate the contention of the OPs-LIC, that, the complaint filed by the complainant, cannot be adjudicated by this forum, as it is barred by limitation, inasmuch, as the claim of the complainant, was repudiated, on, 31.03.2004, as is evident from the existence of Annexure R-X, and the complaint filed belatedly, on, 14.05.2007, after the expiry of prescribed period of limitation, is, hopelessly time barred, hence, cannot be entertained and tried by this Forum. However, the contention so canvassed before us, cannot be taken into consideration, to oust the claim of the complainant, in the light of the existence of Annexure C-4, which is, a copy of the letter dated 21.08.2006 so addressed by the OPs-LIC, to the complainant, in response to a letter bearing Annexure C-2 written by the complainant to the OPs seeking release to her of, the, full benefits encompassed, in, the insurance cover, purchased by her deceased husband from the OPs, intimating, to her therein, the, denial of DAB claim under both policies. Now given the avowed stand of the OPs, that, the complainant, who, is, the legal heir of the deceased, hence, a beneficiary of the policy, is, for, the reason of the deceased Policy holder having been opinioned by the Post mortem report, to be, at the relevant time to the under the influence of liquor, and the said fact having caused his demise, hence, the said fact comprising an infraction of the policy, she being not, entitled, to, the benefits of the policy and which was, the prima donna reason for, negating her, claim, as such, the, communication, under annexure C-4 to the complainant, on, her letter to, the OP bearing Annexure C-2, revives, the , cause of action qua the entitlement, of, the complainant, to the, full benefits of, the policy, earlier denied, hence, we hold that the complaint, is, not barred by limitation.

6. Now, adverting to the legal efficacy, so canvassed before us, by the OPs-LIC, that, in, view of the infraction of the terms and conditions of the insurance policy, they are not liable to defray the complainant the benefits of double accident claim, inasmuch, as the deceased life assured was under the influence of liquor, hence, his death, is, attributable not, to, a fortuitous event, rather, to, his, inebriation having caused his end and, that, hence, the repudiation of the claim, is, tenable, for, which contention succor, is, urged to be lent by the existence, of, copy of FIR Annexure R-VI, postmortem report Annexure R-VII & R-VIII, and the order so rendered by the Sub Divisional Magistrate, Chopal, on, 28.01.2004, Annexure R-IV.

7. Now, even, though, the Post mortem report as relied upon, by the OP does vividly reveal, that, the demise of the deceased, is, squerely attributable to hemorrhagic shock secondary to injuries to vital organs while under the effect of alcohol, and has been pressed into service by the OPs, in, canvassing their plea, that, even, if, the deceased Policy holder sustained injuries in the accident, yet, in the light of findings recited in the Post mortem report attributing the primary cause of his demise to hemorrhagic shock secondary, to, injuries to vital organs while his, having been, at, the relevant time under, the, influence of the alcohol, as such, the injuries having only a secondary role in his demise, rather, death having been caused by hemorrhagic shock accruing from, his, being at the relevant time, under, the influence of alcohol, the repudiation, is, urged to be tenable. However, the, above contention comes to suffer complete emasculation, in, the light of the opinion and finding rendered by a team of experts, on review of Post mortem report, conducted earlier and the said earlier report having given a categorical finding, qua, the presence of alcohol, in, the body of the deceased having been the primary cause of his demise, hence, death being not begotten by injuries sustained in the accident. With the team of experts while reviewing the earlier findings rendered in the Post mortem report, having, for reasons recorded in it, having concluded, that, the portion of the earlier findings, in, the earlier post mortem report, reflecting, that, the death of the deceased, is, attributable for his being under the effect of alcohol, cannot be, hence, justified completely in the case of the deceased policy holder, obviously, then, the, OPs as a natural corollary, contend, with aplomb, that, the conclusions as afforded by the earlier post mortem report, while squarely, attributing, the, demise of the deceased to hemorrhagic shock caused by, the presence of alcohol in his blood, carry any binding and conclusive effect. Resultantly, with, the findings in the earlier Post mortem report, hence having come to be shrouded with suspicion, they, are, to be discarded. As also, we can, hence, while affording, the, benefit of the shroud of suspicion in which the earlier findings have been engulged in, leaving them inconclusive, conclude that, the demise of the deceased was occasioned by the injuries sustained in the accident and was not begotten, on, account of his being under the inference of liquor, at, the relevant time. Obviously, then their was no infraction, of, the terms and condition of the policy. Hence, repudiation of the claim, is, wholly unjustified.

8. As a sequitor to above, we, allow this complaint and direct the OPs-LIC to indemnify the complainant, being the nominee of the deceased life assured, to the extent of grant of double accident benefit arising out of life insurance policy bearing No.150034275, for an amount of Rs.1,00,000/- and policy bearing No.150481942, for an amount of Rs.80,000/-, as is revealed by the existence of life insurance policies Annexures R-1 & R-II, along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 14.05.2007, till actual payment is made. The OPs-LIC, is also directed to pay a sum of Rs.25,000/- as compensation to the complainant, for causing her pain, suffering and inconvenience. The litigation cost is assessed, at, Rs.3,000/- payable by the OPs-LIC, to the complainant. This order shall be, complied with, by the OPs-LIC within a period of forty five days, after the date of receipt of copy of this order, failing which, it shall also be liable to pay punitive damages of Rs.10,000/-, to the complainant.

9. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.

C.C. No.88/2008
Between:

Pamthangi Bhagyamma, w/o.late Purnachander Rao, M/o.P.Srinivasa

Rao, H.No.5-5-103, Musthafa nagar, Khammam town and District.

…Complainant
And

The Divisional Manager, LIC of India, Division office, Jeevan

Prakash, Balasamudhram, Hanamkonda, Warangal, Warangal District.

…Opposite party.

This C.C. is coming on before us for hearing in the presence of Sri.Y.Srinivasa Rao, Advocate for complainant and of Sri.A.Sarath Chandra, Advocate for opposite party; upon perusing the material papers on record; upon hearing arguments, and having stood over for consideration, this Forum passed the following:-

ORDER

(Per Smt.V.Vijaya Rekha, Member)

1. This complaint is filed under section 12(1) of the Consumer Protection Act, 1986. The brief facts as set out in the complaint are that;

The complainant is the mother of the deceased, P.Srinivasa Rao. During his life time, the son of the complainant had obtained two insurance policies vide policy bearing No.686854014, dt.4-1-2004 for an amount of Rs.1,00,000/- and another policy bearing No.687427867, dt.14-1-2006 for an amount of Rs.50,000/-. The complainant being the nominee to the said two policies and she is the only class-I legal heir. At the time of obtaining the two policies, the deceased/policy holder was hale and healthy and after considering the health condition of the deceased, the opposite party issued two policies. The complainant also submitted that on 24-6-2006 her son died due to heavy fever and jaundice and after that the complainant informed the same to the opposite party and claimed the insured amount, the opposite party repudiated the claim through a letter, dt.26-11-2007 on the ground that the deceased/policy holder died due to HIV and also informed that, if there is any dissatisfaction towards the decision of the opposite party, the complainant have to approach Zonal Manager within one month, but the said information was sent to the complainant after lapse of stipulated period of appeal. As such the complainant got issued legal notice, dt.19-7-2008 and approached the Forum for redressal along with a prayer to direct the opposite party to pay an amount of Rs.1,00,000/- under policy bearing No.686854014, and Rs.50,000/- under the policy bearing No.687427867, together with interest and costs.

2. Along with the complaint, the complainant filed affidavit and also filed

i) Status Report of policy bearing No.686854014

ii) Status Report of policy bearing No. 687427867

iii) Legal notice, dt.19-07-2008 along with Ack.

iv) Letter, dt.23-07-2008 on letter head of the opposite party

v) Xerox copy of letter, dt.26-11-2007 addressed by the opposite party

Vi) Xerox copy of death certificate of the deceased

Vii) Xerox copy of death declaration certificate of the deceased

viii) Claimants statement.

3. On being noticed, the opposite party appeared through its counsel and filed counter by denying the averments made in the complaint.

4. In the counter, the opposite party admitted the issuance of policy bearing No. 686854014 and another policy bearing No. 687427867 and denied the other allegations and further submitted that the deceased/policy holder died on 24-6-2006 i.e. within 8 months of revival of the policy bearing No.686854014 and within 5 months of taking policy bearing No.687427867. As such they conducted an investigation, as the claim was early claim and as per the investigation, it was revealed that the deceased diagnosed as HIV reactive on 2-8-2005 which is prior to the date of revival of policy bearing No.686854014 and prior to the date of joining of the policy bearing No.687427867 and it was also evidenced as per the certificate dated 1-10-2007 issued by the Medical Superintendent, District Hospital, Khammam and also submitted that the deceased, P.Srinivasa Rao had submitted proposal form for two policies by suppressing the material facts of his illness related to HIV. As such they repudiated the claim of the complainant and there is no deficiency on the part of them and prayed to dismiss the complaint.

5. Along with the counter, the opposite party filed the following documents:

i) Proposal Form, dt.13-1-2006 under policy bearingNo. 687427867

ii) Personal statement regarding health of the deceased

iii) Letter, dt.1-10-2007 addressed by the Civil Surgeon, R.M.O., District Hospital, Khammam



6. The complainant filed written arguments with the same averments as mentioned in the complaint.

7. In view of the above submissions made by both the parties, now the point for consideration is,

Whether the complainant is entitled to any relief as prayed for?

POINT:

8. As seen from the above averments, there is no dispute regarding the issuance of policy bearing Nos.686854014 and 687427867 to the son of the complainant, the only dispute with regard to the concealment of material facts of illness related to HIV at the time of submission of proposal form for revival of policy bearing No. 686854014 and at the time of taking policy bearing No. 687427867 and as per the contention of the opposite party, the policy bearing No. 686854014 was in lapsed condition, it was revived on 2-11-2005 and the deceased/policy holder died on 24-6-2006, which is within 8 months from the date of revival of the policy bearing No. 686854014 and within 5 months from the date of obtaining the policy bearing No. 687427867. As such the opposite party conducted an investigation, as the claim was early claim and during the course of investigation, they came to know that on 2-8-2005 the deceased diagnosed as HIV reactive. As such the opposite party repudiated the claim of the complainant on the ground of suppression of material facts regarding the health condition of the deceased at the time of revival of policy bearing No. 686854014 and at the time of obtaining the second policy, but it is not disputed that the policy bearing No.686854014 was not repudiated on the ground of any misrepresentation or initial concealment of facts by the deceased at the time, when initial policy was taken. The only contention raised by the opposite party is that the deceased concealed the material facts at the time of revival of policy bearing No.686854014 and at the time of taking the policy bearing No.687427867 and in this regard we relied a Judgment of the Apex Court in Mithoolal Nayak Vs. LIC of India reported in AIR 1962 SC 814 – in this case, the Hon’ble Supreme Court categorically stated that, “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 section 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” and in another case the National Commission observed that in LIC of India Vs. Gowramma reported in 2009 CTJ 830 (CP) (NCDRC) – Policy not repudiated on the ground that there was misrepresentation in taking the initial policy or initial concealment of some facts and opined that no suppression of facts at the time of taking the original policy. In the instant case, the opposite party had repudiated the two policies belonging to the deceased/policy holder on the ground of suppression of illness related to HIV, which was detected prior to the revival of policy bearing No.686854014 and prior to the joining of the policy bearing No.687427867, and in support of their contention, the opposite party filed a letter, dt.1-10-2007 addressed by R.M.O., District Hospital, Khammam to the Branch Manager of opposite party, and according to the said letter the deceased was tested for HIV on 2-8-2005 and the test result is reactive, except the said letter, the opposite party failed to file any material and failed to prove that the deceased had taken any treatment prior to the original policy and in order to establish the concealment of HIV at the time of taking the original policy, the opposite party had not filed any affidavit of a doctor.

9. In view of the above citations and discussion, the contention raised by the opposite party is not acceptable regarding the validity of policy bearing No.686854014, which came into force on 4-1-2004 i.e. prior to diagnosis. As such the opposite party cannot escape from their liability to pay the insured amount under policy bearing No.686854014, whether it was revived after diagnosis of illness and with regard to the policy bearing No.687427867 is concerned, the deceased obtained the policy after the date of diagnosis. It clearly shows that the deceased obtained the policy by deliberately concealing his illness. As such there is no valid contract between the parties under the policy bearing No.687427867 and as such the point is answered accordingly.

10. In the result, the complaint is allowed in part, directing the opposite party to pay an amount of Rs.1,00,000/- (Rupees one lakh only) under the policy bearing No.686854014 together with interest at 9% P.A. from the date of repudiation i.e.26-11-2007 till the date of payment and Rs.1,000/- (Rupees one thousand only) towards costs. The claim in respect of policy bearing No.687427867 is dismissed.

C.C.No.36 of 2008
BETWEEN:

1. Jagannadham Padma,

W/o. Kandela Sudhakar Rao

2. Kandela Ajay,

S/o. Kandela Sudhakar Rao

3. Kandela Akhil,

S/o. Kandela Sudhakar Rao

Complainants 2 & 3 are residing with their

mother & 1st complainant Jagannadham Padma.

She is working as

Jr. Lecturer,

History Department,

Govt. Woman’s College for Girls,

Guntur. … Complainants

AND

1. K.Mutyalamma,

W/o. Venkataiah,

Sanduvaripalem Street,

Near Govt. Junior College,

Darsi Town and Mandal,

Prakasam District.

2. The Branch Manager,

Life Insurance Corporation of India,

Addanki Branch,

Prakasam District.

3. The Divisional Manager,

Life Insurance Corporation of India,

Divisional Office, “Jeevan Prakash”,

P.B.No.15, Dargametta,

Nellore - 524 003. … Opposite parties

This complaint coming up before us for final hearing on 19-01-10 in the presence of Sri P.B.Dastagiri, Advocate for complainant and OP1 remained exparte, Sri P.Sivaram Prasad, Advocate for OPs 2&3, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri T.ANJANYULU, PRESIDENT:

This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainants seeking directions on opposite parties 2 and 3 to pay an amount of Rs.1,50,000/- with interest @ 18% p.a. from the date of maturity of fixed deposit till the date of realization and to award legal expenses.

The brief facts of complaint are as follows:

The complainants herein and 1st opposite party are the legal heirs of the deceased Kandela Sudhakara Rao. The deceased working as Agricultural Officer in Donakonda and in lifetime he has obtained policy through an agent of opposite parties 2 and 3 namely Narayana Reddy for a sum of Rs.3,00,000/- on paying premium amount. While so, late Sudhakara Rao died on 23-08-01 due to heart attack in NIMS Hospital, Hyderabad. At the time of obtaining policy, the 1st opposite party who is the mother of Sudhakara Rao got her name mentioned as nominee in the proposal form. On coming to know the said fact, the complainants herein approached III Additional District Judge, Guntur and filed an application under Indian Succession Act vide O.P.No.30/2002 for granting Succession Certificate in their favour to receive the amount due under policy and other debts if any. After due enquiry, the said court granted succession certificate on 20-07-05 apportioning policy amount viz. Rs.50,000/- each in favour of complainants 1 to 3 herein and sum of Rs.1,50,000/- in favour of 1st opposite party. Thus the opposite parties 2 and 3 are liable to pay the policy amount in accordance with succession certificate and as they avoid paying, they approached District Legal Service Authority, Guntur and filed an application No.464/2007 before Legal Service Authority, the opposite parties 2 and 3 filed a memo stating that they have repudiated the claim. Thereupon, the District Legal Service Authority advised the complainants to approach Consumer Forum for proper redressal as per order dt.06-08-07. Nonpayment of policy amount on the part of opposite parties 2 and 3 amounts to deficiency of service. Hence, the complaint.

The 1st opposite party remained exparte. The opposite parties 2 and 3 filed their version denying all the allegations made in the complaint.

They further submitted that the deceased life assured has obtained policy bearing No.840899323 on 28-11-00 and that he died on 23-08-01. As per the terms and conditions of policy, the death claim repudiated on the ground of suppression of material fact regarding ill health of deceased life assured i.e., hyper tension and Bronchial Asthama. As per terms and conditions of claim under the policy being early claim i.e., within 2 years from the date of payment of first premium an enquiry was conducted of which they came to know that the deceased life assured was on leave on sick grounds during the period from 21-11-00 to 30-11-00. This fact was not mentioned in proposal form at the time of taking policy by the deceased life assured. All these facts are evident from NIMS Hospital records and medical certificate issued by Dr.M.Sonar Babu and lastly employer certificate issued by Agricultural Officer, Darsi, Prakasam District. Therefore, it is evident that the deceased life assured was a known case of Hypertension and Bronchial Asthama and it is also mentioned that the deceased life assured was suffering from amoebic dysentery and he was on sick leave at the time of proposal. The facts regarding adverse health history and particulars of sick leave were not disclosed at the time of effecting insurance. As it is a known fact that the contract of insurance is a contract of ub-remifidy, due to suppression, misrepresentation and non-disclosure of material facts with regard to health and leave record, the competent authority has rightly repudiated the claim for false statement of date of death and suppression of ill health at the time of taking of policy. Thus there is no deficiency of service.

The claim of complainant is also barred by limitation. The relief sought under complaint is not tenable as there is no fixed deposit available with this opposite party. There are no valid and tenable grounds to allow the complaint. The succession certificate said to have been granted is only empowered to collect the amount, but it is not a direction from the Court to these opposite parties for payment under the policy. Payment under the policy is subject to terms and conditions and as per to the provisions of Insurance Act. Hence, nothing is payable and there is no liability on the part of opposite parties 2 and 3. Therefore, it is prayed to dismiss the complaint with costs.

Both sides have filed their respective affidavits apart from marking documents. On behalf of complainants Ex.A1 and A2 are marked. On behalf of 2nd opposite party Ex.B1 to B5 are marked.



Now the points for consideration are

1. Whether repudiation of claim made on the ground of suppression of alleged facts is just, valid and legal?
2. Whether the complaint is barred by limitation?
3. To what relief?

POINT No.1

The repudiation of claim is mainly on the ground of misstatement of facts in the proposal form submitted for obtaining policy with regard to health condition of life assured and as well as sick leave availed by the proposer. Therefore, the opposite party mainly rely upon the entries filled in the proposal form vide Ex.B1 and the certificate issued by employer in the proforma supplied by insurance company vide Ex.B3. They also reply upon the death certificate vide Ex.B4 which shows the date of death of deceased as 24-08-01 instead of 23-01-08 as mentioned in complaint. The repudiation letter dt.02-02-03 vide Ex.B5 reflect entries made in the proposal form and basing on the answers given, the insurance company observe that they have undisputable proof to show that about one month before proposal for policy, the deceased suffered from amoebic dysentery for which he had consulted a medical man and had taken treatment in a hospital and that he was on medical leave for 9 days during 21-11-00 to 30-11-00. It is also noted that the life assured had been suffering from hypertension and bronchital asthma approximately one year before the date of proposal. He did not disclose these facts in his proposal and he gave false answers therein as stated above. It is therefore evident that he had made deliberate misstatement and withheld material information with regard to his health at the time of effecting the assurance and hence, in terms of policy Contract and Declarations contained in the forms of Proposal for Assurance, the claim is repudiated.

We have seen from the averments made in complaint that the deceased-life assured had obtained policy in question through an agent namely Narayana Reddy. As seen from the proposal form vide Ex.B1, the deceased had signed his name in English Language and entries are filled by agent on the information supplied by proposer. The entries further reveal that this proposal was also signed by medical examiner namely Sri KSRK Prasad as it is a medical case. Column No.10 of proposal form represents family history. Column No.11 represents personal history.

The relevant questions and answers of column No.11 reveals as follows:

(a) During the last five years did you consult a medical practioner for any ailment requiring treatment for more than a week?

Answer : No

(b) Have you ever been admitted to any hospital or nursing home for general check-up, observation, treatment or operation?

Answer : No

(c) Have you remained absent from place of work on grounds of health during the last 5 year?

Answer : No

(d) Are you suffering from or have you ever suffered from ailments pertaining to Liver, Stomach, Heart, Lungs, Kidney, Brain or nervous system?

Answer : No

(e) Are you suffering from or have you ever suffered from Diabetes, Tuberculosis, High Blood Pressure, Low Blood Pressure, Cancer, Epilesy, Hernia, Hydrocele, Leprosy or any other disease?

Answer : No

(f) Do you have ay bodily defect or deformity?

Answer : No

(g) Did you ever have any accident or injury?

Answer : No

(h) Do you use or have ever used

(i) Alcoholic drinks : No

(ii) Narcotics : No

(iii) Any other drugs : No

(iv) Tobacco in any form : No

(i) What has been your usual state of health?

Answer : Good

(j) Have you ever received or at present availing / undergoing medical advice, treatment or tests in connection with Hepatitis B or an AIDS related condition

Answer : No

Now while relying upon the certificate given by Drawing Officer (Ex.B3) in the proforma supplied by insurance company it is contended that the deceased complained hypertension, right chest pain prior to his death on 01-08-01, the date of death is noted as 24-08-01, the record of absence from duties on medical ground shown from 28-11-97 to 24-08-01. It is not known by whom these entries are filled up in the proforma. The Drawing Officer has signed his name in green ink and put rubber stamp. The other entries are made with ballpoint pen in blue colour. The entry of leave period on medical ground shown in blue colour ink from 28-11-97 to 24-08-01. The opposite parties in its version mentioned that the life assured was on leave on sick grounds during 21-11-00 to 30-11-00 for 9 days. During which period he obtained policy on 28-11-00. But whereas the employer certificate vide Ex.B3 shows period of absence more than 4 years i.e., from 28-11-97 to 24-08-01. This discrepancy was not explained. The repudiation letter also shows that the proposer suffered one month prior to submitting proposal and consulted a medical men but there is no evidence to that effect. Further more amoebic dysentery is not at all a serious disease. It is admitted case that the deceased died due to heart attack in NIMS Hospital which cannot be anticipated by the deceased himself so as to reveal in the proposal form. Eight months after submitting proposal form the deceased developed chest pain and got admitted in NIMS and died due to heart attack. The insurance company did not obtain any medical record from NIMS, so as to assess the average period of treatment underwent by the deceased. The entry about leave period in Ex.B3 is apparently incorrect. Therefore, in our considered view, there is no material suppression of fact or misstatement in the proposal form, so as to lead the insurance company to repudiate the claim. We find absolutely no justification in repudiating the claim as the same is not legal and proper. The point is answered accordingly.

POINT No.2

The proposal form mention nominee’s name as K.Mutyalamma and the relationship between nominee and proposer is left blank. The repudiation letter vide Ex.B5 is served on Mutyalamma who is described as mother of deceased as 1st opposite party. On coming to know all these facts in the proposal from, the complainants who are the legal heirs have initiated proceedings for obtaining succession certificate in the year 2002 itself. The matter went on for 3 years and ultimately passed order in favour of complainants and as well as 1st opposite party apportioning the policy amount as mentioned in complaint. The complainants have also made the insurance company as respondent in the application filed for obtaining succession certificate. They are having knowledge about the same. Despite of such a direction given by Civil Court, the amount payable under the policy to the complainants and 1st opposite party, remains unpaid. Thereupon, the complainants have approached District Legal Service Authority, in which the insurance company chosen to file a memo vide Ex.A2 informing repudiation of claim. On filing such repudiation memo, the District Legal Service Authority, Guntur advised the parties to approach suitable Forum. Hence, this complaint.

Basing on these facts and circumstances and the time consumed in legal proceedings in the very presence of opposite party itself, it cannot be heard to say that the complaint is time barred. The point is answered accordingly.

POINT No.3

In the result, the complaint is allowed in part in terms as indicated below:

1. The complainants herein are entitled for sum of Rs.1,50,000/- as per the apportionment of policy amount issued under succession certificate vide Ex.A1.

2. The 1st opposite party is entitled for other half of amount i.e., Rs.1,50,000/-

3. The opposite parties 2 and 3 are hereby directed to pay Rs.1,50,000/- to the complainants along with interest @ 9% p.a. from the date of complaint i.e., 26-10-07 till the date of realization.

4. Further the opposite parties 2 and 3 are hereby directed to pay sum of Rs.3000/- towards compensation for mental agony, pain and suffering and legal expenses of Rs.1000/- to the complainants.

5. Rest of the claim of complainants is rejected.

6. The amounts ordered above shall be paid within a period of six weeks from the date of receipt of copy of this order, failing which the amounts ordered in item No.4 shall carry interest @ 9% p.a. till the date of realization.

CC.No:162/2009

BETWEEN:

G. Radha, W/o. Late Koteswara Rao,

Aged about 32 years, Hindu, House wife,

R/o. Paletipadu village, Jarugumalli Mandal,

Prakasam District, A.P. ... Complainant.


Vs.

1. The Chairman & Managing Director,

Regd. Off. Yogakshema,

Jeevan Bhima Marga, PBNo.19953,

MUMBAI- 400 021.

2. The Branch Manager,

L.I.C. of India, Branch Code 71D,

Chennai (II) Thiruvottiyur-600 019.


3. The Branch Manager,

L.I.C. of India, Trunk Road,

ONGOLE-01. …Opposite parties.

COUNSEL FOR COMPLAINANT: SRI. G. SRINIVASA RAO,

ADVOCATE, ONGOLE.

OPPOSITE PARTY NO.1: EX-PARTE.

COUNSEL FOR OPPOSITE PARTY NO.2&3: SRI P.V.S.R.K. MOORTHY

ADVOCATE, ONGOLE.

This complaint is coming on 27.01.2010 for final hearing before us and having stood over this day for consideration this Forum delivered the following:
ORDER:

1. This is a complaint filed by the complainant under Section 12 of Consumer Protection Act, 1986 against the opposite parties.

2. The averments in the complaint are as follows: Complainant husband late Koteswara Rao had taken two insurance policies one at Kandukur branch for Rs.50,000/- and another policy at Thiruvottiyur branch, Chennai for Ra.1,00,000/-. Unfortunately, complainant’s husband Koteswara Rao died on 17.05.2007 due to heart attack. After the death of her husband, the complainant submitted required documents to the Kandukur branch and the Kandukur branch paid the policy amount to the complainant after due enquiry. The complainant also intimated the death of her husband to Chennai branch and requested payment of policy amount of Rs.1,00,000/-. The Chennai branch issued reply on 03.03.2008 stating that they have no knowledge about the death of the assured Koteswara Rao. The complainant sent representation along with copy of death certificate and Xerox copy of the policy bond to the Chennai branch. But, so far her claim was not settled by the Chennai branch. Hence, the complaint.

3. The 1st opposite party remained ex-parte.

4. The 2nd opposite party filed counter and the 3rd opposite party filed memo adopting the counter filed by the 2nd opposite party.

5. In their counter the 2nd opposite party is contending as fallows: It is true that the deceased had taken a policy for Rs.1,00,000/- at Thiruvottiyur branch of Tamil Nadu on 14.02.2007. After the death of the policy holder no information was received by the 2nd opposite party regarding the death of the policy holder. On 15.02.2008 the 2nd opposite party received legal notice asking the 2nd opposite party to settle the claim. The 2nd opposite party sent the claim form A, B, B1 and C to the nominee on 03.03.2008 with an advice to sent back the claim forms duly completed along with original death certificate and original bond. So far the 2nd opposite party did not receive the claim forms and therefore it could not proceed in the matter. Even to this day the complainant fail to submit the claim forms and the original policy bond to the opposite party for processing the claim. The present complaint is premature and the same is liable to be dismissed.

6. No documents are marked either on behalf of the complainant or on behalf of the opposite parties.

7. The point for consideration is whether the complainant is entitled for the reliefs in the complaint.

8. The case of the complainant is that her husband late Koteswara Rao had taken two insurance policies one at Kandukur branch for Rs.50,000/- and another policy at Thiruvottiyur branch at Chennai for Rs.1,00,000/-. Unfortunately, her husband died on 17.05.2007. When the complainant submitted claim forms Kandukur branch settled the policy amount but the Chennai branch did not settle her claim. Hence, the complaint.


9. The opposite parties opposed the petition on the ground that the complainant without submitting claim forms A, B, B1 and C together with original death certificate and original policy bond for processing the claim approached the forum and the complaint is premature and the same is liable to be dismissed.

10. A perusal of the documents filed along with the complaint show that the original policy bond was filed before the forum along with the complaint. This support the case of the opposite parties that claim forms and original policy bond were not submitted to the 2nd opposite party for processing the claim.

11. In the circumstances 2nd opposite party is directed to send claim forms to the complainant and on receipt of the same the complainant is directed to submit claim forms A, B, B1 and C together with original death certificate and original policy bond to the 2nd opposite party and on receipt of the same the 2nd opposite party is directed to process the claim of the complainant within one month from the date of receipt, failing which, the amount carries interest @ 9% p.a., till realization. There is no order as to costs. With these observations the petition is disposed off.

C.C.NO.113/2008
Between:

1. Smt.Y.Chenna Krishnamma

W/o Late Y.Narasimha Reddy
2. Y.Madhusudhana Reddy

S/o Late Y.Narasimha Reddy

3. Y.Y.Narayana Reddy

S/o Late Y.Narasimha Reddy

All are residents of Venkapalli Village

Katamavaripalli Post, Gandlapenta Mandal

Anantapur District. … Complainants

Vs

Life Insurance Corporation of India

rep. by its Branch Manager,

Kadiri, Anantapur District. … Opposite parties

This case coming on this day for final hearing before us in the presence of Sri A.Suresh Kumar, Advocate for the complainants and Sri T.Viswanath, advocate for the opposite party and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:

O R D E R

Sri C.Thyagaraja Naidu, President: - This complaint has been filed by the complainants under section 12 of the Consumer Protection Act, 1986 against the opposite party to direct the opposite party to pay Rs.25,000/- towards the sum assured with interest @ 18% p.a. from the date of death of Narasimha Reddy i.e. 30-06-2007 and to pay Rs.10,000/- towards deficiency in service of the opposite party and mental agony suffered by the complainants and for costs.

2. The brief facts of the complaint are that:-The 1st complainant is wife and the complainants 2 & 3 are sons of late Y.Narasimha Reddy. Late Narasimha Reddy died on 30-06-2007 in a normal course leaving behind the complainants as his only legal heirs. The opposite party is doing its business in insuring the lives of the individuals. In its course of business, it has canvassed the Money plus Plan to late Narasimha Reddy. The said Narasimha Reddy entered into the said scheme and sent a proposal form. The opposite party officials after taking all the requirements into consideration accepted the policy and issued policy bearing No.654527685. As per the said policy, the sum assured is Rs.25,000/- under basic plan. Subsequently and unfortunately, the said Narasimha Reddy died on 30-06-2007 in a normal course. After death of Narasimha Reddy, the complainants made a claim through 1st complainant before the opposite party as they are entitled for the said amount. Inspite of several requests, the opposite party put deaf ear. Finally, the complainants received a letter from the Head office of the opposite party on 23-10-2007 that they have repudiated the claim. The reasons in repudiating the claim are arbitrary, illegal and unsound. The same is against the principles of natural justice. Hence, this complaint is filed to direct the opposite party to pay Rs.25,000/- towards the sum assured with interest @ 18% p.a. from the date of death of Narasimha Reddy i.e. from 30-06-2007, to pay Rs.10,000/- towards deficiency of service of the opposite party and mental agony suffered by the complainants and for costs.

3. The opposite party filed counter and contended that late Y.Narasimha Reddy declared himself to be healthy as per his statements and replies to question No.6 (a to f & i) and signed the declaration at the foot of the said proposal form. Basing on his statements and declaration, the risk on his life was accepted and insurance policy No.654527685 was issued with 23-02-2007 as the date of commencement of the above said policy for a sum assured Rs.25,000/- with a premium of Rs.5,000/- per annum as sought by the deceased. The deceased life assured died on 30-03-2007 i.e. within 7 days from the date of commencement of the above said policy. As the death claim arose within 2 years from the date of commencement of the said insurance policy, the claim of the complainants was treated as early claim and investigation was conducted by this opposite party-corporation. During the course of investigation, it was disclosed that the deceased life assured Y.Narasimha Reddy was born blind (deformity was congenital). Medical Certificate dt.31-10-2002 issued by the Superintendent, District Medical Board, Anantapur and the particulars furnished by the deceased life assured in his loan application to A.P.Disabled Co-operative Society for raising loan of Rs.30,000/- to run petty shop clearly establishes that the deceased life assured was 100% blind by birth. The deceased life assured obtained the above said insurance policy in his favour by not disclosing the fact that he is a born blind in the proposal form, which amounts suppression of material fact. The declaration signed by the deceased life assured at the bottom of the proposal form makes the contract of insurance null and void in the event of with-holding of any information or giving untrue information. Had the deceased life assured disclosed the true and correct information in the proposal form with regard to his born blindness, this opposite party-Corporation would not have accepted his proposal and issued the above said Insurance Policy in favour of the deceased life assured. Hence, the contract has become null and void and all the monies paid to the opposite party corporation shall stand forfeited to the said corporation as per the policy condition No.13. The repudiation of the present claim of the complainants was made on justifiable grounds after due application of mind and basing on the evidence available and the repudiation is done strictly according to the terms and conditions of the Insurance Contract. Therefore, the complaint is liable to be dismissed with costs.

4. Now basing on the above pleadings, the points that arise for consideration are:-

1. Whether the repudiation of the claim of the complainants by the opposite party is Justified or not?

2. Whether the complainants are entitled for the relief’s as claimed for in the complaint?

3. To what relief.

5. In order to prove the case of the complainants, the 1st complainant filed evidence on affidavit in support of the complainants’ case and marked Ex.A1 & A2. On behalf of the opposite party evidence on affidavit of the opposite party was filed and Ex.B1 to B5 were marked.

6. Heard both sides.

7. The counsel for the complainant filed written arguments. The counsel for the opposite party filed citations.

8. POINT NO.1:- The opposite party in the counter as well as in the evidence on affidavit has clearly admitted that the deceased Y.Narasimha Reddy obtained Insurance Policy bearing No.654527685 for Rs.25,000/- on 23-03-2007. It is also an admitted fact that the 1st complainant approached the opposite party for payment of the insurance amount for the death of her husband Y.Narasimha Reddy. The opposite party sent Ex.A2 letter dt.23-10-2007 to the 1st complainant repudiating the claim.

9. The contention of the counsel for the complainants is that the repudiation of the claim by the opposite party is illegal, arbitrary and unsound. He contended that late Y.Narasimha Reddy admittedly born blind and it is not the reason for his death. At the time of taking policy from Narasimha Reddy, the officials of the opposite party verified the person and the doctor, who examined the insured has mentioned that in his presence the insured has answered the questions mentioned in Ex.B1 proposal form. Thus, the doctor was very much knew about the blindness of late Narasimha Reddy at the time when the proposal form was filled up by late Narasimha Reddy. Now the opposite party taking plea that late Narasimha Reddy suppressed his blindness can not be accepted. Therefore, the conduct of the opposite party in repudiating the claim amounts to deficiency of service. In support of his contention, he relied on the decision reported in 2005(5) ALT 28 (CPA) between Y.Vijayalakshmi Vs. Life Insurance Corporation, wherein it was held that:-

“In all matters of repudiation of policy, insurance company can not act in a mechanical and routine manner. It should act with responsibility being a State within the meaning of Article 12 of Constitution of India. Mere inaccuracy or falsity in respect of some recitals in the proposal is not sufficient. Unless the insurer is able to establish those facts, the claim should not be repudiated on the ground of misstatement of facts. “

10. The counsel for the opposite party contended that the insured late Y.Narasimha Reddy was 100% born blind and the said fact was not disclosed by the insured at the time of submitting his proposal and after issuance of the policy on 23-03-2007 within a week the insured died. Therefore, the opposite party made investigation and in the investigation it was disclosed that the insured was born blind and the opposite party filed Ex.B1 to B5 documents to show that the insured has suppressed the material facts with regard to his blindness.Therefore, the opposite party has rightly repudiated the claim under Ex.B5 letter dt.23-10-2007. In support of his contention, he placed reliance in the reported decisions: -

1. (1) 1992 CPJ 255 (NC) between LIC of India Vs. Chandrawati Devi, wherein it was held that:-

“Misdeclaration and concealment of facts by the insured in the proposal form - the policy of insurance vitiates - No deficiency in service - The claim of the widow repudiated. “

2. 1986-95 Consumer 1387 (NS) between LIC of India Vs. M.Gowri & others, wherein it was held that:-

“Claim repudiated due to suppression of material fact – Appeal of the Corporation against the finding of the State Commission that mere signature on the forms, who does not understand English is not enough to prove his knowledge – The policy of insurance is a policy of utmost good faith – while filling up proposal form an agent acts as an agent of the insured for whose benefit the insurance is to be obtained.”

3. IV (2008) CPJ 187 (NC) between Angoori Devi Vs. LIC of India & others, wherein it was held that:-

“Deceased life assured was suffering from chronic renal disease which he willfully suppressed at time of taking of policy. He expired within 5 months of taking of policy. Complaint was allowed by CDRF without appreciating the evidence. Order of the CDRF was set-aside by State Commission. The National Commission held that the order passed by the State Commission does not call for interference. “

4. IV (2008) CPJ 74 (NC) between Shankar Soni Vs. LIC of India, where it was held that:-

“Deceased was suffering from Bronchial Asthama and Allergical Dysphonia before the submission of the proposal. Complaint allowed by Forum ignoring evidence. Cause of death was due to Broncho Pneumonia. The deceased suppressed information within his knowledge. While dismissing revision petition, National Commission held that the petitioner was not entitled to any relief. “

5. AIR 1997 157 Karnataka between Life Insurance Corporation of India and others Vs. Ajit Gangadhar Shanbhag and others, wherein it was held that:-

“Contract Act (9 of 1872) section 10 – Insurance contract – misrepresentation or concealment of material facts by insured – Insurer can repudiate contract.”

11. Having regards to the arguments advanced by the Counsel for the complainants and the opposite party and on perusal of the decisions cited by both sides, which are referred above, we are of the opinion that there is no force in the contention of the counsel for the opposite party that the insured has suppressed the material facts with regard to his health conditions at the time of filling up the proposal form of the insurance policy for the following reasons.

12. Ex.B1 is the filled original proposal form for LIC Money Plus plan filed by the opposite party officials, In Ex.B1 all the columns were filled up by one and the same person. Late Narasimha Reddy was blind-man and he has only signed in Telugu at page 3 at 3 places and at page 4 at one place in Ex.B1. The Doctor counter-signed in Ex.B1 and the endorsement reads as hereunder:-

“ I certify that the proposer has signed/put his thumb impression in my presence after admitting the answers to questions Nos.6 and onwards of this form have been correctly recorded. “

Question No.6 relates to personal statement regarding health of life to be assured. Question No.6 (f) relating to the question. Do you have bodily defect or deformity? For which answer was given as ‘No ‘. Deceased photo was also affixed on the proposal form at the time of filling up the same. When the doctor counter-signed in the said proposal form naturally the doctor must have seen the blindness of the deceased. If the blindness of the insured disentitles for accepting the policy, then the doctor, who attested the said proposal form should have informed the opposite party with regard to the blindness of the deceased, but he has not informed the same. Therefore, considering the said fact mere non-disclosure of blindness can not be taken into consideration that the insured has suppressed the material fact with regard to his health conditions.

13. As seen from Ex.B3 Medical Certificate for the Blind issued by Medical Board, it goes to show that the deceased was having visual disability 100%. As seen from Ex.B4 the deceased has submitted an application for financial aid relating to disabled person, wherein he has mentioned that he was born blind. Ex.B5 is the repudiation letter of the opposite party addressed to the 1st complainant on 23-10-2007, wherein it is stated that the deceased was totally blind prior to the proposal dt.09-03-2005. He had not however disclosed these facts in his proposal instead he gave false answers therein as stated above. Hence, they repudiated the claim and accordingly they are not liable for any payment under the policy and all the moneys paid in consequence thereof belong to them.

14. The opposite party has not placed any material before this Forum to show that the blind persons are not eligible to insure their life and that for blind person’s insurance policy will not be accepted. Therefore, on considering the said facts and circumstances we are of the view that the repudiation of the claim of the complainants by the opposite party amounts to deficiency in service and decisions cited by the counsel for the opposite party do not apply to the facts of this case. On the other hand the decision cited by the counsel for the complainants squarely applies to the facts of this case. Therefore, we hold that the repudiation of the claim of the complainants by the opposite party is not justified. Accordingly, this point is answered.

15. POINT NO.2:- The evidence on affidavit of the 1st complainant, the evidence on affidavit of the opposite party and Ex.B2 Insurance Policy issued by the Opposite party to the insured clearly goes to prove the fact that the insured has taken Life Insurance Corporation’s Money Plus for Rs.25,000/- which commences from 23-03-2007. The evidence on affidavit of the 1st complainant as well as Ex.A1 Death Certificate of the deceased clearly goes to prove that the deceased died on 30-03-2007. Since the deceased died on 30-03-2007 and by that date the Insurance Policy of the deceased under Ex.B2 was in force. Therefore, the opposite party is liable to pay a sum of Rs.25,000/- to the complainants, who are legal heirs of the deceased. Further, the opposite party is also liable to pay interest @ 12% p.a. from the date of filing of this complaint since the repudiation of the opposite party in settling the claim of the complainants amounts to deficiency in service of the opposite party. Since the opposite party is directed to pay interest, the claim of the complainants of Rs.10,000/- in respect of mental agony can not be granted. Accordingly, this point is answered.

16. POINT NO.3:- In the result, the complaint is allowed. The opposite party is directed to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) to the complainants with interest @ 12% p.a. from the date of filing of this complaint i.e. from 04-10-2008 till the date of realization. All the complainants are entitled for equal share out of the said amount. The opposite party shall also pay towards costs of Rs.2, 000/- (Rupees two thousand only) to the complainants. The said amount shall be paid within one month from the date of this order.

C.C.No.81/2009

Between

Mallavaram Mallika,

W/o. late M. Vasudeva Reddy,

Hindu, aged about 40 years,

Residing at D.No.1-20/3,

Peruru Village & Post,

Tirupati Rural Mandal, Tirupati,

Chittoor District. …. Complainant

And

1. The Life Insurance Corporation of India,

Puttur Branch, Rep. by its Branch Manager,

Having office at Puttur.

2. The Life Insurance Corporation of India,

Rep. by its Divisional Manager,

Prakash Buildings, Darga Mitta,

Nellore. …. Opposite parties


This complaint coming on before us for final hearing on 04.01.2010 and upon perusing the complaint, written arguments of the complainant and opposite parties and other relevant material papers on record and on hearing of Sri C. Sankar Reddy, counsel for the complainant and Sri. K. Ajey Kumar, counsel for the opposite parties No.1 and 2 and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY Sri M. SUBBARAYUDU NAIDU, MEMBER

ON BEHALF OF THE BENCH

This complaint is filed under Sections 12 and 14 of Consumer Protection Act, 1986 to pass an order directing the opposite parties 1 and 2 to pay the claim amount due under policy bearing No.841314052, i.e., assured amount of Rs.1,00,000/- along with bonus accrued thereon as per the terms and conditions of the policy, to pay Rs.5,000/- for the mental agony caused to the complainant by the opposite parties and to pay Rs.5,000/- towards the costs of the legal expenses and pass such other order or orders as the Hon’ble Forum may deem fit and proper in the circumstances of the case.

2. The factual matrix leading to filing of this complaint is set out as here under: (a) It is the case of the complainant that her husband by name Mr. M. Vasudeva Reddy had taken a Life Insurance policy from the first opposite party during his life time i.e., on 26.01.2003 vide policy bearing No.841314052 and he has been regularly paying the premiums, without fail. The complainant herein is the nominee to the above said policy and the said fact is known to her recently, i.e., in the month of April, 2008; while she was searching her house for some other documents surprisingly, she got the original policy and immediately she approached the first opposite party and requested to pay the claim amount to her under the above said policy. The complainant further narrated in para 4 of her complaint that her husband suddenly died on 16.04.2005 and on the date of the death of the said insured the above said policy was in force and as per the terms and conditions of the above said policy being the nominee and wife of the insured. As per the requirements of the opposite parties, the complainant had also submitted the original policy along with the death certificate of the insured etc. for process and payment. But the first opposite party received the same and did not pay the claim amount to the complainant till now. She had approached the first opposite party several times personally and requested to pay the claim the amount due to her under the above said policy and inspite of that the opposite parties did not pay the claim amount and had been postponing the same on some pretext or other.

(b) The complainant further narrated in para 5 of her complaint that she came to know that after receiving the policy papers from her, the opposite parties have asked their agent to verify the same and submit a claim enquiry report and that the agent has submitted a false report stating that the complainant is not residing in the given address and the complainant’s whereabouts are not known and so the opposite parties have not processed the claim amount due under the above said policy. But actually the complainant is residing in the above said address only till now. In para 6 of her complaint, she further narrated in her complaint that she had got issued a legal notice dated 06.05.2009 through her counsel to the first opposite party and that the first opposite party had also given a reply letter dated 15.05.2009 through which the first opposite party has requested the complainant to wait for some time since the policy is under process. But inspite of that, till this date the first opposite party did not pay claim amount to the complainant. Hence, the complainant again got issued a second legal notice dated 27.08.2009 through her counsel to both the opposite parties demanding them to pay the claim amount due under the above said policy, but having received the same, the opposite parties did not neither paid the amount due nor replied to the said second legal notice. So, the complainant has approached the first opposite party personally several times and demanded orally to pay the amount due under the above said policy, but the opposite parties did not choose to pay the same. In para 7 of her complaint, she further narrated that both the opposite parties failed to discharge their lawful duties, i.e., to pay the amount due under the said policy to her as she is legally entitled for the same as the legal representative cum wife and also as the nominee of the said policy. Hence, both the opposite parties acted in deficiency in service towards the complainant and as there is no other go for her, except to file this complaint before this Hon’ble Forum for reliefs as prayed. Hence, this complaint.

3. The complaint is resisted by the second opposite party by filing an affidavit of evidence by authorized signatory K.V. Seshachari on behalf of the opposite parties 1 and 2 that this complaint is not maintainable either in law or on facts. He denied the allegations made in the complaint in paras 2 to 4 of his written version except those that are specifically admitted and the complainant is put to strict proof of the rest of the allegations in the complaint. It is true that one Mr. Vasudeva Reddy had taken life insurance policy bearing No.841314052 from the opposite parties on 28.01.2003. The nomination is in the name of his wife Mallika. The DLA revived the policy on 25.05.2004 on the strength of DGH. The complainant seems to have made claim after long gap of death of the policy holder and the above policy resulted into very early death claim from revival due to the death of life assured on 16.04.2005. The death of the life assured came to the knowledge of the opposite parties only in 2008 and the claim is very early from revival, i.e., 10 months, 21 days from revival and investigation official gave his report stated that no such person is available in Perur and surrounding villages with claimant’s name. The opposite parties received a legal notice dated 16.05.2009 from the claimant with address again and the investigation was entrusted. Meanwhile claim forms were issued to the claimant by register post on 07.09.2009. The opposite parties are ready and willing to process the claim immediately after the receipt of claim forms and investigation report. So far the claim forms are not submitted by the claimant / complainant to the opposite parties office for processing it. When re-entrustment of investigation is pending and also when the claim forms are not received to the opposite parties office so far, blaming them is not justified. The complainant has to follow the process of claim by submitting the same and instead of that approaching the court alleging the deficiency in service is unwarranted. The delay in making of 3 years is in the above said circumstances, the opposite parties 1 and 2 have no necessity to pay damages, loss, compensation etc., as stated in the complaint by the complainant. Hence, the question of payment of damages for deficiency in service and mental agony does not arise as there is no deficiency in service. The complainant / claimant should submit claim forms in order to make claim before the opposite parties. So, this complaint is deserved to be dismissed with exemplary costs against the opposite parties and pray the Hon’ble Court accordingly.

4. In support of the averments made in the complaint, the complainant has filed his affidavit and also filed 8 documents which are marked as Exs. A1 to A8. Ex.A1 is the Xerox copy of the life insurance policy bearing No.841314052. Ex.A2 is the Xerox copy of house hold card / ration card mentioning the family members details. Ex.A3 is the office copy of legal notice dated 06.05.2009 issued on behalf of the complainant to the opposite parties by the learned counsel for the complainant. Ex.A4 is the reply letter dated 15.05.2009 issued by the first opposite party (branch office, Puttur) to the learned counsel for the complainant mentioning that the above said claim is under process for want of requirements. Ex.A5 is the office copy of second legal notice dated 27.08.2009 issued to the opposite parties by the learned counsel for the complainant Ex.A6 is the Xerox copy of certificate of death of the complainant’s husband Mr. Vasudeva Reddy. Ex.A7 is the postal acknowledgement card singed by the second opposite party. Ex.A8 is the Xerox copy of letter about the outcome of investigation report filed by the branch manager on behalf of the first opposite party.

5. In support of the allegations made in the written version, filed by the opposite parties also, filed an affidavit with 4 documents which are marked as Exs.B1 to B4. Ex.B1 is the office copy of reply letter dated 15.05.2009 issued by the Branch Manager, on behalf of the first opposite party to the learned counsel for the complainant. Ex.B2 is the office copy of letter dated 07.09.2009 of the Branch Manger on behalf of the first opposite party to the complainant asking her to return the claim forms after duly executing the same. Ex.B3 is the original proposal form for insurance signed by the deceased husband of the claimant / complainant dated 26.01.2003. Ex.B4 is the original policy bond along with first premium receipt and also renewal premium receipt.

6. Both the parties of the complaint have filed their respective written arguments along with their affidavits. Parties adduced their evidence by way of affidavits.

7. On the basis of the pleadings and documentary evidence, the points that arise for our determination are:

1 Whether there is any deficiency in service on the part of the opposite parties

towards the complainant?

2. Whether the complainant is entitled for the reliefs as prayed, if so to what

extent?

3. To what result?

7. Point No.1:- (a) The basic facts of this consumer case are not disputed. The learned counsel for both parties have reiterated the facts of the case by submitting their written arguments once again. Both parties have filed sworn affidavits in proof of their averments contained in the complaint as well as written version and treated them their evidence. Facts in brief:- The husband of the complainant herein by name Mr. M. Vasudeva Reddy had taken life insurance policy (Endowment Assurance Policy) on 29.01.2003 (Ex.A1) from first opposite party. The policy number is 841314052 and date of its commencement from 29.01.2003 and its maturity on 28.01.2003. Policy installment premium payable of Rs.1,351/- quarterly to the first opposite party and sum assured of Rs.1,00,000/-. The complainant is the nominee of the said policy. The husband of the complainant had suddenly died on 16.04.2005 (Ex.A6) and the policy is in force. The learned counsel for the complainant Sri C. Sankar Reddy has vehemently argued that the fact of the said policy and its existence came to the knowledge of the complainant only in the month of April, 2008 while she was searching for some other papers in her house. He further contended that complainant approached first opposite party and requested to pay the claim amount by submitting necessary papers like policy original bond, death certificate etc. (Ex.A1 and Ex.A6). The complainant also further approached first opposite party several times but first opposite party did not take any action till now. She came to know that after receiving the said documents from her, the first opposite party had asked their agent to submit a report with regard to death of the husband of the complainant, and their agent had submitted a false report stating that she is not residing at the given address and the complainant’s whereabouts not known and so first opposite party did not pay the claim amount to her. The counsel for the complainant further argued that he issued a legal notice dated 06.05.2009 (Ex.A3) on behalf of the complainant to the first opposite party and the first opposite party replied (Ex.A4) stating that “the claim is under process for want of requirements and still some more time will take place and kindly advice complainant to bear the delay and co-operate with us.” Again complainant had got issued second legal notice dated 27.08.2009 (Ex.A5) through her counsel to both the opposite parties calling upon them to pay the claim amount due to the complainant. In spite of the said legal notices, the opposite parties did not paid the claim amount to the complainant and no other go for her except to file this complaint before this Hon’ble Forum seeking the reliefs as prayed for. Finally, the said learned counsel for the complainant argued that the complainant had no faith in the opposite parties since they are not willing to pay the claim amount due under the said policy to her by showing irrelevant reasons. The opposite parties have miserably failed in discharging their lawful duties and acted in deficiency in service towards the complainant. So, the Hon’ble Forum may be pleased to allow this complaint as prayed for in the circumstances of the case.

(b) In response, the learned counsel for the opposite parties Sri. K. Ajey Kumar has also vehemently argued that the claim under the said policy is made after 3 years gap of death of the policy holder and death of the life assured came to the knowledge of the first opposite party only in 2008. He further argued that the claim is very early from revival i.e. 10 months 21 days from revival and so investigation was entrusted, the investigation official gave his report stating that no such person by name Mrs. Mallika is available in Perur village and surrounding villages with claimant’s name. He also further argued that the first opposite party received a legal notice (Ex.A3) on 06.05.2009 from complainant / claimant with address again and so the investigation was entrusted. Thereafter another legal notice (Ex.A5) is issued on 27.08.2009 on behalf of the complainant by the learned counsel for the complainant and in reply to the same claim forms were issued to the complainant / claimant by registered post on 07.09.2009 subject to the result of the agent’s investigation. He further contended that unless the claim forms are submitted to the first opposite party and investigation report of the agent is received, it is not possible to settle the claim. He also cited in paras 6 and 7 of his written arguments by mentioning and stressing it again that the opposite parties are ready and willing to process the claim immediately after receipt of claim forms and investigation report and so for the claim forms are not submitted by the complainant / claimant to them process it. He also further argued that when re-entrustment of investigation is pending and also when the claim forms are not received by the opposite parties so far and blaming the opposite parties is not at all justified. Approaching this Hon’ble Forum alleging deficiency in service on the part of the opposite parties by the complainant / claimant is unwarranted, without submitting the claim forms for processing it. The delay in making of 3 years, in the said circumstances, the opposite parties have no necessity to pay damages, loss and compensation to the complainant / claimant. The claim of complainant before this Hon’ble Forum is barred by limitation, as the claim has to be made within 2 years of death of the life assured, i.e., husband of the complainant. Finally, he argued that the complaint is deserved to be dismissed with exemplary costs against the opposite parties.

Forum Findings and Observations

(c ) Heard, the said learned counsel for the parties of this consumer case and perused the record very carefully. It is clearly evident that according to Ex.B4, i.e., original policy bond, the address of the complainant’s husband at the time of obtaining the Endorsement Assurance Policy from the first opposite party, is at Kallur village, Vadamalapet Mandal. It is very nearer to Puttur (first opposite party’s place) just away from 12 or 15Kms only. The complainant had given present address with Perur village Tirupati Rural Mandal by submitting Ex.A2, i.e, Xerox copy of house hold card of the complainant. By all means, it is not much difficulty for the agent of the opposite parties to trace out the address of the complainant and to know the fact of the death of the complainant’s husband as soon as information and knowledge received by the opposite parties in 2008. When the required documents received by the first opposite party from the complainant, is not stated clearly and just mentioned in 2008. The investigation report of the agent by the opposite parties is not brought before us to assess it. Ex.A8 i.e, Xerox copy of the letter about the outcome of investigation report as per the branch manager, Puttur does not disclose the full text of the report of the agent and its contents are not known to us even today, though it was addressed on 22.09.2008 to the Branch Manager by whom, is not clear and signature of the branch Manager is very much there. The alleged letter is suspicious and it speaks for itself. It has no value in the eye of law. As far as Ex.B1 and B2 are concerned i.e, the letters addressed to the said learned counsel for the complainant and complainant respectively by the opposite parties, are in the months of May and September, 2009, how the opposite parties will process the claim of the complainant without furnishing the claim forms to her and after receipt of them only the process of claim will begin and when first set of claim forms were sent to the complainant by the opposite parties is not mentioned in it and not proved by them. Moreover, the address of the complainant is correctly mentioned as per Ex.B2 by the opposite parties in September 7th, 2009. So, an inference can be drawn from the circumstances of the case the first opposite party is well aware of the address of the complainant.

(d) The first opposite party, i.e, Branch Manager at Puttur ought to have sent the claim forms to the complainant along with Ex.B1 letter dated 15.05.2009 itself. That was not done by the first opposite party for the reason best known to him. Having sufficient knowledge about the death of the claimant’s /complainant’s husband in April, 2008 by the first opposite party, the Branch Manager at Puttur leisurely sitting since September, 2008 (Ex.A8) witnessing the whole episode without any responsibility whatsoever and still enquiring and re-entrusting investigation to the agent are apparently ridiculous and unjustified. It is much against law. His attitude is clearly lethargic and lazy in performing his lawful duties. The concerned officials of the opposite parties are unmindful towards their customers. It is clearly amounts to deficiency in service on the part of the opposite parties towards the complainant / claimant herein. So far, much delay is caused to her in disbursing the claim amount to her. The contention of the said learned counsel for the opposite parties is that if the claim forms are submitted to the opposite parties by the complainant and they will process it and pay claim amount to her, is not at all correct at this stage. Since the death of her husband (16-04-2005), the complainant is waiting to receive her legitimate claim from the opposite parties but for the reasons best known to them, they are dodging endlessly and it is totally unjustified on the part of the opposite parties. The opposite parties are never took the whole matter seriously at any stage and postponing it by showing that they are still seeking particulars. This is much against the principles of Law of Insurance. The claim should be settled within 3 months as per National Commission decisions on the subject of Law of Insurance. The law is very clear and its position is very well settled. It is all depending upon mutual trust and good faith between them. The opposite parties have no defence to say otherwise as per the circumstances of the case. We find considerable substance in the submissions made on behalf of the complainant by the said learned counsel for the complainant. So, in view of the discussions above, it is clear that there is ample deficiency in service on the part of the opposite parties towards the complainant. Hence, this point is answered accordingly.

8. Point No.2: In view of the facts and circumstances of the case and basing on the documentary evidence as discussed in Point No.1, it is just and proper as per the principles of Natural Justice, and it can be said that the complainant is entitled to get assured amount of Rs.1,00,000/- along with bonus accrued thereon according to the terms and conditions of the policy with interest at 9% per annum from the date of complaint till the date of realization and also she is entitled to get Rs.2,000/- towards damages for her mental agony and costs of the complaint of Rs.1,500/-. This point is answered accordingly.

9. Point No.3:- In the result, the complaint of the complainant is partly allowed, directing the opposite parties to pay Rs.1,00,000/- along with bonus accrued thereon according to the terms and conditions of the policy with interest at the rate of 9% per annum from the date of complaint, i.e. 09.09.2009 till the date of realization, to pay Rs.2,000/- towards damages for mental agony and also pay Rs.1,500/- towards costs of the complaint to the complainant within six weeks from the date of receipt of copy of order.

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 16th day of January, 2010.