-::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL FORUM, AT BIDAR::

                                                               C.C. No.96/2018.

                                                            Date of filing: 29.12.2018.

                                                                   Date of disposal:  13.06.2019.

P R E S E N T:-    

                              (1) Shri. Jagannath Prasad Udgata,                                                                                                                                                                                                       B.A., LL.B.,        

                                                                                                President.

                             (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

COMPLAINANT/S:            Sneha, D/o Late Sanjeevkumar Biradar,

                                                  Age about 10 years, minor Represented by

                                                  Uncle Sri. Santhosh, S/o Madivalappa Biradar,

                                                  R/o G.P.No.639, Kamalnagar,

                                                  Now Taluka Kamalnagar and Dist.Bidar,

                                                  Karnataka-585417.

                                                  (Appointed in the body of the Bharti Axa

                                                  Insurance Policy proposal)                                             

                                                                                                                                                                                                                                                                             (By Sri.Sanjay Kumar S. Patil, Adv.)                              

                                                                 VERSUS

OPPONENT/S:                 1. Bluechip Corporate Investment Ltd.,

                                                 It’s the Authorized Officer/ Agent/Servicing

                                                Branch, of Bharhi Axa-I, through Bluechip

                                                Insurance Booking Pvt. Ltd. Office

                                            At # 8-11-192/C, Margadarshi Complex,

                                                Opp. KEB Road, Bidar-585401.

                                           2.  Bharti Axa Life Insurance Co. Ltd,

                                                CTS 4830/28B-1,  1^st Floor, Dhamnekar Building

                                                 Civil Hospital Road, Belgaum-590001,

                                                 (Karnataka State ).

                                           3.  Bharti Axa Life Insruance Co. Ltd., Reg. Office,

                                             Unit-601 & 602, 6^th floor, Raheja Titanium off 

                                             Western Express  Highway Goregaon (E)

                                             Mumbai-400063 (M.S.)

                                          (O.P.No.1 By Sri.Shankar K. Adv. )

                                          ( O.P.No.2 & 3 by Parameshwar Bambulge, Adv.)

::   J UD G M E N T  ::

By Shri. Jagannath Prasad Udgata, President.

This complainant is by a minor female child through her uncle            ( appointee inthe policy) U/Sec.12 of the C.P.Act, 1986  alleging deficiency and unfair trade practice.  The summary of the complaint is as discussed underneath:

2.         The complainant’s mother the deceased policy holder Sanjana, w/o late Sanjeev kumar was a business woman by profession and during her life time had obtained life insurance policy for sum assured of                                 Rs. 9,60,069/- from the O.Ps no.2 and 3 by paying due premiums (Annexure-D) vide her application (proposal form) on 25.03.2015.  As per terms of the policy on death 165% of the sum assured is payable.  She had appointed Sri. Santosh as the guardian of the complainant herein.  The O.P.no.1 was the financial advisor/ corporate agent of the O.P.s no.2 & 3.  The policy number assigned was 501-3008544  for a duration of fifteen years but as per the terms of the policy premiums were payable for a period of seven years only.  It is the case of the complainant that, her mother the deceased life assured was paying regular premiums and met an untimely death due to acute myocardial infarction on 05.01.2017 at her home.  The Medical Officer of Kamalnagar C.H.C., Tq.Aurad Dist. Bidar has issued a certificate to that effect ( Annexure-K).  Consequent upon her death claim was lodged with the O.Ps but the same was refuted stating that, the deceased had not disclosed her health conditions truthfully at the time of acceptance of the proposal.  In the relevant column of the proposal form she had answered in negative to all medical enquiries, but it is claimed, she was suffering from Pulmanary Tuberculosis, Diabetes Mellitus I, and Retroviral disease and was under treatment for the last two years, got admitted in Bidar Institute of Medical Sciences on 03.01.2017 at about 12.12.36 hrs. due to ailment of progressive cough and died on 05.01.2017 at  about 11.50 a.m., quoting which the opponent had rebuffed the claim, for which the complainant is before us.

3.         The opponents upon notice have appeared in the case and have filed elaborate written versions, in which interalia, they justify their rebuttal of the claim relying on the doctrine of “ ubbiramae fidei” .  They reiterate that, the deceased life assured was a chronic patient of T.B., Diabetes and Retroviral ailment and had she truthfully revealed such informations at the time of submitting proposal, the insurance company would have refused in accepting the same.  In the versions extensive references to numerous Judgments of the Hon’ble Supreme Court and National have been made which are on the aspects of  sanctity of contracts, revelations of material facts auxiliary  to the signing up the contract and claim that, their rebuttal of claim is justified. 

4.         The complainant also have quoted favorable Judgments as detailed below:

1)  IV (2008) CPJ-Page 89 (NC)

2)  IV (2009) CPJ- Page 123 (NC)

3)  II (2011) CPJ- Page 316  (Rajasthan State Commission)

4)  III (2009) CPJ- Page 91 (NC)

5)  III (2009) CPJ- Page 317 (NC)

6)  III (2014) Consumer Judgment  Page 22 (NC).

Unfortunately neither side has bothered to lay the Judgments refered by them in black and white before us but have merely extracted the head notes.

5.         Both sides have also filed elaborate evidence affidavits in confirmity with their contentions and have submitted copies justifying their stands listed at the end of this order.  While the complainant had filed written arguments, the O.Ps have avoided to do the same inspite of ample opportunity.

6.         Wholesomely considering the claims and counter claims and giving our anxious considerations to the copies of documents filed lby the parties in support of their cases, the following points arise for our considerations.

1. Does the complainant prove deficiency of service in the part of the Opponents?
2. Do the Opponents prove justified rebuttal of the claim application ?
3. What orders?

7.         Our answers to the points raised are as follows:-

1. In the affirmative.
2. In the negative.
3. As per the final orders owing to the following:-

                                       :: REASONS ::

8.         Consideration of points (a) & (b) has to proceed hand in hand owing to their intricately interwebbedness in character.

            Proceeding to consider the issues we fix our gaze on the documents Annexure-K submitted by the complainant regarding the place and time of death of the deceased life assured.  This document gets it corroboration from an appendix of Annexure-R.14 of the opponent at page 87 of the inkpage.  The documents referred to above are issued by the Medical Officer of Kamalnagar community Health Centre, Tq.Aurad,Dist.Bidar and certify that, the case was consulted on 04.01.2017 and was treated for chest pain at Kamalnagar C.H.C., by the Medical Officer, Dr. Ashok Kumar Mulge and in the appendix tagged as family physician certificate of annexure-R.14 the doctor concerned has recorded no previous hospitalization.  In Annexure-K, the same  doctor has certified that, late Smt.Sanjana, w/o late Sanjeev kumar had died at her home on 05.01.2017 and the Doctor had declared the death at 9.00 a.m.

9.         Per contra the opponents producing the treatment records of one Sanjana W/o Sanjukumar, resident of Mailoor, Bidar Tq.Bidar,Bidar was admitted inthe hospital on 03.01.2017 at 12.12.36 p.m. for symptoms of breathlessness and expired on 05.01.2017 at 11.55 a.m.  This  Sanjana patient of BRIMS hospital was certified as a known case of PTB 2 years, in CAT II RVD positive and was on treatment.  She was also having  Diabetic and Keto acedosis.  The un-authenticated medical records have been produced by the O.Ps as Annexure-11.  The other document produced as Annexure-R.10 is of one Sanjana w/o Sanjukumar resident, near Bhavani Temple, Gandhi nagar, Bidar and was a labourer in mining contracts.  The other document relied upon by the opponents is AnnexureR.9, which is an investigation report by South India Investigation Services.  This investigative report painstakingly undertaken only relies upon the medical records of Bidar Institute of Medical Science and cannot be said to be wholly supporting the opponents case.  It may be noted, at col. no.14 (part-A) the investigator has declared to have investigated vicinity hospitals of BRIMS but, could not gather any clue.  They have also verified the death certificate to be genuine.  In col. no. 2 of part-B, the investigators reported that, th ey did not get any premedical records.

10.       Another amazing aspect is neither side has preferred to e xamine the respective medical practitioners on oath.

11.       Now, the question looms large at us, who was the real deceased life assured?  It was Sanjana, w/o Sanjeevkumar, resident of Kamal Nagar, Aurad,Bidar who was first treated on 04.01.2017 or Sanjana W/o Sanjukumar, resident of Mailoor,Bidar,Tq.&Dist.Bidar, who was admitted in Bidar Institute of Medical science on 03.01.2017 at 12.12.36 p.m. for breathlessness, was a known case of pulmonary Tuberculosis, Diabetes I with Ketoacidosis and Retroviral diseases for the last two years?  The opponents have not taken fruitful step for positive identification.  The accepted proposal form describes late Sanjana as w/o Sanjeev Kumar, resident of Kamal Nagar, Tq.Aurad(B),Dist.Bidar.  Certainly the life assured could not have been treated by the Doctor of Kamal Nagar C.H.C. on 04.01.2017 and died at her home on 05.01.2017 before 9.00 a.m. and simultaneously was admitted in Bidar Institute of Medical science on 03.01.2017 at 12.12.36 p.m. and died on 05.01.2017 at 11.55 a.m.  Therefore, it is crystal cear that, the opponents in order to wriggle out of their liability are trying to superimpose the case of Sanjana w/o late Sanjukumar resident of Mailoor Bidar on that of Sanjana w/o Sanjeevkumar resident of Kamalnagar, Aurad (B), Bidar, a place more then 30 k.m. from Bidar and opponent’s deficiency of service and unfair trade practice is glaring at the face.

12.     Thereby, we answer the points at (a) and (b) accordingly and proceed to pass the following.

::ORDERS::

The complaint is allowed.

1. The opponents are jointly and severally held liable to pay a sum of Rs. 15,85,584/- being death benefit in the policy of deceased life assured Sanjana to the complainant.
2. The opponents are further directed to pay interest @ 12 % p.a on the above sum calculated from their date of first rebuttal i.e. 10.03.2017             (  An.-C) till realisation.
3. The opponents are further directed to pay a compensation of Rs. 20,000/- towards mental agonies and suffering together with a litigation cost of Rs.10,000/-
4. Putting our anxious consideration to the fact that, the complainant is a minor girl child in the custody and upkeep of her uncle (appointee) we hereby further direct that 75% of the principal award amount when realised be kept in a F.D. in a nationalised Bank or scheduled Bank of choice till she attains majority.  The balance amount be paid to the next friend of her by cheque.
5. Four weeks time granted to comply the order.

 (Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this   13^th  day of June 2019).

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                 President.                                                                                      

Documents produced by the complainant

1. Annexure.A- Literature of the insurance policy (copy).  
2. Annexure.B– Insurance proposal form  (copy).  
3. Annexure.C- Repudiation letter dt.10.03.2017 (original).
4. Annexure.D– Deposit receipt (original).  
5. Annexure.E – Death certificate (copy).
6. Annexure.F-  Repudiation letter dt.28.09.2017 (original).
7. Annexure.G- Aadhar Card of  deceased  Sanjana (copy).
8. Annexure.H- Aadhar Card of Sneha complainant (copy).
9. Annexure J –  (‘I’ excluded) Aadhar Card of Santosh next friend (copy)
10. Annexure K- certificate of death dt. 18.01.2017 of Medical officer,     Kamal Nagar, Tq.Aurad (B), Dist.Bidar(copy).

 Document produced by the Opponents.

1.Annexure-R1- Authorisation letter of O.P.no.1     In favour of Shankar Kulkarni (original )

2.Annexure-R2- Accepted proposal form (copy)

3. Annexure R3- Policy document (copy)

4. Annexure R.4- claimant statement form (copy).

5. Annexure R5- Death certificate (copy)

6.Annexure R6- Statement of Santosh next friend of the complainant (copy)

7.Annexure R7-Statement of account of Pragati Krishna Gramina Bank in respect of Santosh (copy)

8.Annexure.R8- Aadhar card of Santosh (copy)

9.Annexure.R9- Investigation report by M/s South India Investigation    service

10.Annexure.R10- Purported T.B. treatment records of Sanjana resident of    Gandhinagar,Bidary (copy)

11.Annexure R11- Medical records of Bidar Institute of Medical service. (copy)

12.Annexure R.12-Repudiation letter dt.10.03.2017 (copy)

13.Annexure R.13-Appeal of Santosh to O.Ps  (copy)

14.Annexure R.14-Appeal to Insurance Ombudsman (copy)

Witness examined.

Complainant.

1. P.W.1- Santosh S/o Madivalappa Biradar (Next friend of   complainant)

Opponent.

• Nil  -

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                   President.