BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.129 OF 2013 AGAINST C.C.NO.38 OF 2010 DISTRICT FORUM NALGONDA
Between:
The Assistant General Manager
M/s Shriram Life Insurance Co.Ltd.,
Regd.Off: 3-6-478, III Floor, Anand Estate
Liberty Road, Himayathnagar, Hyderabad
Appellant/opposite party no.1
A N D
- Smt Panasa Ratnamala W/o late Vishveshwar Rao
Aged about 45 years, Occ: Household
R/o H.No.1-8-63/E, Church Compound
Suryapet of Nalgonda District -
- V.Devamma, Authorized Agent
Shriram Life Insurance Co.Ltd.,
H.No.1-6-141/9/215/D, Vidyanagar
Suryapet, Nalgonda
Respondent/opposite party no.2
Counsel for the Appellants M/s KRR Associates
Counsel for the Respondent M/s V.Gourisankara Rao
QUORUM: SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER
THURSDAY THE TWENTY SIXTH DAY OF JUNE
TWO THOUSAND FOURTEEN
Oral Order (As per Thota Ashok kumar, Hon’ble Member)
***
1. The opposite party No.1 is the appellant. For convenience sake the parties as arrayed in the complaint are referred to hereunder.
2. The brief facts of the complaint are that the husband of the complainant, Vishveshwar Rao during his life time on 29.11.2008 obtained insurance policy bearing No. LN 070800159466 for sum assured of 1,50,000/- by paying premium of 10,000/- from the opposite party no.1. The opposite party no.2 is the agent of the opposite party no.1. As per the terms of the policy after payment of the first premium itself if the insured expires the opposite party under took to pay 1,50,000/-. While so, the husband of the complainant expired on 13.10.2009 with kidney problem. Prior to the detection of the said disease the husband of the complainant was hale and healthy. After the death of her husband the complainant submitted the claim along with relevant documents to the opposite party no.1 but the opposite partyno.1 refused to pay the claim amount on the ground that the deceased policy holder suppressed his kidney disease, hypertension and diabetes in the proposal form. The husband of the complainant was having mild hypertension and diabetes but it was within permissible limits and the complainant also produced a certificate to that effect from a Medical Officer. On rejection of the claim of the complainant, the complainant approached the Internal Claims Review Committee who also rejected her claim. The repudiation was made on the basis of the enquiry which revealed that the deceased was suffering from hypertension for the last 15 years and type-2 diabetes for the last 2 years and chronic kidney disease for the last 4 months with history of right hemiplegia. The opposite party no.1 has no basis to show that the deceased policy holder was suffering from the said diseases. Hence, the complainant filed the complaint before the District Forum for redressal of her grievance to direct the opposite parties to pay assured amount with interest etc.
3. The opposite party no.1 resisted the case contending that the District Forum has no jurisdiction to entertain the complaint. At the time of taking the policy, the opposite party no.1 required the insured to furnish certain information as to his health problems and on the basis of information given by the insured to the questionnaire; the opposite party no.1 had accepted the risk on the life of the insured. On the complainant informing the death of the deceased, the opposite party no. 1 appointed an investigator who made enquires and submitted a report that the deceased was suffering from hypertension for the last 15 years, type-2 diabetes for the last 2 years and chronic kidney disease for the last 4 months and that he had history of right hemiplegia which the deceased did not disclose in the proposal form. The deceased gave all answers in such a manner that the opposite partyno.1 should insure his life and in giving such answers he had suppressed the material factum of his suffering from diseases. On the basis of the report of the investigator, the opposite party no.1 had concluded that the deceased had suppressed the material facts with fraudulent intention of obtaining the policy. Hence, the opposite party no.1 prayed to dismiss the complaint.
4. The opposite party no.2 agent did not choose to file any counter.
5. The Both parties filed their respective affidavits and the complainant filed documents Exs.A1 to A9. The opposite party no.1 filed documents Exs.B1 to B19 and Exs.C1 to C3 were marked by the Commissioner.
6. Having heard both side and considering the material on record the District Forum vide impugned order allowed the complaint directing opposite party no.1 to deposit a sum of Rs.1,50,000/- towards sum assured and also net asset value of units accumulated in the account of the deceased as on the date of the complaint with interest @ 9% per annum on both the amounts from the date of the complaint till realisation and also pay Rs.5000/- towards compensation and Rs.2,000/- towards costs of the complaint. The claim against the opposite party no.2 is dismissed without costs.
7. Aggrieved by the said order the opposite partyno.1 filed the present appeal contending that at the time of taking the policy the deceased policy holder was suppressed his ailments in the proposal form. During investigation it was found that the life assured died because of heart attack and the life assured was diabetic and hypertensive and suffered CVA stroke in June 2009 and has been partially paralyzed on the right side of the body. The life assured has undergone treatment in NIMS, Hyderabad, Sai Ganesh Hospitals at Suryapet and Madhu Hospitals at Suryapet. From the said record it was found that the life assured was suffering from hypertension from past 15 years, type-2 diabetes mellitus from last two years, chronic kidney disease from last 4 months and having history of right hemiplegia which was not disclosed in the proposal form. The life assured was having a pre-existing health problem since long period before taking the subject policy and hence prayed to allow the appeal by dismissing the complaint.
8. Heard the counsel for with reference to the grounds of appeal and the complainant/respondent no.1 supported the order of the District Forum.
9. Now the point for consideration is whether the order of the District Forum is vitiated by misappreciation of fact or law?
10. There is no dispute that the deceased life assured had obtained Ex.A2 policy bearing No.LN 070800159466 for a sum of 1,50,000/- from the first opposite party by paying a premium of 10,000/- on 29.1.2008 and as per the terms and conditions of the policy on the payment of first instalment, if insured dies the first opposite party should pay 1,50,000/- to the nominee together with other benefits. There is no dispute that the insured died on 13.10.2009 due to kidney problem. According to the complainant the deceased has no ailments as on the date of submitting the proposal form and taking the policy. Therefore she putforth the claim under the said policy before the opposite party insurance company for assured amount together with all attending benefits. The opposite party no.1 rejected the claim on the ground that its enquires revealed that the deceased was suffering from hypertension for the last 15 years and also on account of type-2 diabetes for the past two years and kidney ailment for the last four months and that the deceased life assured has suppressed his previous ailments had fraudulently obtained the subject policy.
11. The opposite party contended that the nominee has to approach for the redressal to a civil court but she does not come under the definition of consumer and as such consumer forum has no jurisdiction to entertain complaint. Admittedly the relationship of the complainant with the deceased life assured is the wife and class one heir of the deceased life assured and she comes under the purview of beneficiary. That apart the opposite party no.1 had received the premium from the husband of the complainant in respect of subject policy and therefore we are satisfied to hold that the consumer complaint is maintainable.
12. The Hon’ble Supreme Court in Mithoolal Nayak vs. LIC of India reported in AIR 1962 SC 814 held that there are three conditions for the application of second part of Section 45 of insurance Act and they are as under:
“(a) the statement must be on a material matter or must
suppress facts which it was material to disclose,
(b) the suppression must be fraudulently made by the
policy holder and
(c) the policy holder must have known at the time of
making the statement that it was false or that it
suppressed facts which it was material to disclose.”
13. In view of the above decision it is incumbent on the part of the opposite party insurance company to prove the deceased life assured was suffering from ailments referred to by the opposite party no.1 and knowing fully well about his previous ailments the deceased life assured intentionally and fraudulently made a false statement suppressing his ailment while taking the policy.
14. How far the opposite party no.1 established its case has to be seen now. RW1 Dr.N.Madhu Babu who treated the deceased testified that on 14.6.2009 he examined the deceased life assured who was brought to his hospital with the complaint of sudden asphyxia i.e., loss of voice, severe cough and breathlessness. According to him he investigated and found that the deceased life assured was suffering from acute cerebrovascular accident (CVA) so also infection in lower respiratory tract. It is deposed by the said medical practitioner that when he examined the deceased on 14.06.2009 he was not having diabetes but had previous hypertension history and that there was blood clotting in the brain of the deceased. The said witness was subjected for cross examination and it was elicited from him that the blood clotting is not the result of hypertension and that he cannot say as to since how long the disease was suffering from hypertension. Thus the evidence of RW1 is not useful for the opposite partyno.1 to say that much prior to submission of the proposal form the deceased was suffering from hypertension etc. Another important document relied upon by the first opposite party in the said context is Ex.B11 record of diagnosis of NIMS, Hyderabad and in the said document also there is no specific mention as to from which period the deceased was suffering from diabetes and hypertension. Ex.B12 is the discharge summary issued by NIMs in favour of the deceased and the said document reveals that the deceased was suffering from hypertension since 15 years, diabetes since 2 years and CKD since four months. Since 8 months after the deceased had taken policy as far as the ailment of CKD aforesaid is concerned it is not useful to say that the deceased suppressed the said ailment as it was only of four months duration. There is no dependable evidence from the side of the opposite party no.1 that the information mentioned in Ex.B12 regarding the alleged previous ailments was given by the deceased at the time of the investigation and who gave such an information is also not clear. None connected to the said document has been examined nor his affidavit was filed. No contemporaneous documents filed by the opposite party no.1 in support of its contention that since 15 years from the date of Ex.B12 the deceased was suffering from hypertension. The hypertension and diabetes are not a diseases but are disorders. Therefore Exs.B11 and B12 are also not helpful for the first opposite party to avoid the claim. Another document relied upon by the first opposite party is Ex.B9 which is said to have been signed by the complainant. The contents of the said document discloses that the complainant said to have stated that the deceased was suffering from hypertension and was using medicines. There is no mention as to whom the said letter was addressed and also in which context. Mostly the said document discloses with regard to the treatment taken by the deceased subsequent to 14.6.2009 which is posterior to the Ex.B1 proposal form. The investigators report in Ex.B8 dated 23.11.2009 discloses that two days prior to submission of the said report the investigator had taken Ex.B9 letter dated 21.11.2009 from the complainant so as to suit to his circumstances with an intention to help the first opposite party and cause loss to the complainant. Prior to it only the complainant submitted Ex.B4 letter and there is no whisper about the alleged ailments of the deceased in it. When Ex.B4 was given absolutely the complainant had no reasons to give Ex.B9 admitting that the deceased was suffering from diabetes and hypertension and therefore there is acceptable force in the contention of the complainant’s counsel that the same appears to have been obtained by the investigator only with a view to help the first opposite party. There is no dependable evidence form the side of the opposite party no.1 that knowing fully well that he was suffering from hypertension and diabetes, the deceased fraudulently suppressing the same intentionally obtained the policy for the benefit of his wife in the event of his death. The District Forum discussed all the said aspects in the impugned order and rightly came to a conclusion that the opposite partyno.1 is liable to pay 1,50,000/- with interest @ 9%, 5,000/- compensation and 2,000/- costs. Absolutely there are no reasons much less valid reasons to set aside the impugned order. The appeal is devoid of merits and is liable to be dismissed.
15. In the result the appeal is dismissed confirming the order of the District Forum. There shall be no separate order as to costs in the appeal. Time for compliance four weeks.
Sd/-
MEMBER
Sd/-
MEMBER
Dt.26.06.2014
కె.ఎం.కె.*
