ORDER

(Passed on  29/04/2019)

PER SHRI.ATUL D.ALSI, PRESIDENT.

The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 against the repudiation of claim by the OP for the reason of suppression of material fact while submitting the insurance proposal, and praying for total insured amount of Rs.6,25,000/- under the three insurance policies obtained by late husband of complainant No.1 alongwith interest @18% besides Rs.10,000/- for mental and physical agony and Rs.10,000/- towards litigation charges.

2.       The facts in short giving rise to this petition are that the complainant No.1 is the wife and complainant Nos.2 to 4 are the children of one Ramalu Yellaya Avanuri (since deceased). Said Ramalu was working with the Western Coal Field at Chandrapur. Said Ramalu had insured himself by obtaining three life insurance policies details whereof are as under,

3.       Said Ramalu was regularly paying the premiums of all the three policies.  Ramalu died on 4/5/2010 at Rashtrasant Tukadoji Cancer Hospital, Nagpur.  Hence the complainants filed insurance claim under all the three policies with the OP alongwith requisite documents, but it came to be rejected vide OPs letter dated 25/7/2012 for the reason of suppression of material fact about the surgery allegedly carried on the deceased on 10/4/2009 for “Buccal Mucos Rt.side”  and the radio therapy treatment given to him at that hospital. However, the said reason of surgery and treatment given for repudiation of claim are false and no surgery was carried out before obtaining of policy by the insured. Therefore repudiation of claim does amount to Unfair Trade Practice. Hence the petition is filed.

4.       The complaint is admitted and notices were served on the OPs. The OP No.1 to 4 filed their common reply and thereby denied allegations against them.  However, they admitted that the deceased Ramalu had obtained  three  insurance policies specified as above.  They submitted that the insured died within 2 years of obtaining the policies and therefore it being an early claim, the investigation was carried out by the investigator of OP and it has come in inspection report that on 10/4/2009 a surgery of “Buccal Mucos Rt.side” was carried on the deceased before obtaining the above three policies and there was also  treatment of Radio Therapy on the deceased at Tata Cancer Hospital, Mumbai. The deceased had a habit of chewing tobacco since last 10 years prior to his death. The deceased had also gone on medical leave at number of times during the period 2008 to 2009. However, the deceased had suppressed the information about his surgery and treatment of cancer at Tata Cancer Hospital, Mumbai while filling the proposal form for obtaining insurance policy. Therefore, there is suppression of material facts and it amounts to breach of utmost good faith and is a breach of terms and conditions of the policy. Therefore, repudiation of insurance claim does not amount to Unfair Trade Practice.

5.       The counsel for the complainant argued that the deceased underwent operation on 10/11/2009 and not on 10/4/2009 as alleged by the OPs. The operation was conducted after obtaining the insurance policy and there is no evidence of any treatment allegedly taken by the deceased in a cancer hospital. The deceased was on medical leave for two days only between the period 2008-09 and therefore, there is no question of suppression of material facts and hence the rejection of claim with an intention to avoid the liability amounts to Unfair Trade Practice and also deficiency in service.

6.         The counsel for OP argued that the deceased was operated on 10/4/2009  for “Buccal Mucos Rt.side which means jaw cancer” and also had underwent treatment for cancer at Tata Cancer Hospital, Mumbai before obtaining the policies in question. He was in habit of chewing tobacco since last 10 years prior to his death. Hence non submission of this information while submitting the insurance proposal amounts to breach of utmost faith and is also breach of terms and conditions of the policy. Hence repudiation of insurance claim for suppression of material facts is proper and hence the complaint is liable to be dismissed with cost.

7.          We have gone through the complaint, written versions filed by OP No.1 and OP Nos.2 & 3, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties.

                    Points                                                                                     Finding

1. Whether the complainant is a Consumer ?                                      Yes

2.  Whether  there is deficiency in service on the part of OPs ?          

3.  What order ?                                                                  As per final order..

As to issue No.1

8.           It is admitted by the OPs that said Ramalu had insured himself by obtaining three life insurance policies referred above.  It is not disputed that the complainant No.1 is the wife and complainant Nos.2 to 4 are the children of said Ramalu Yellaya Avanuri (since deceased) and that all the complainants are the beneficiary under the policies in question. Hence the complainants are the consumers of OPs within the meaning of Section 2(1) (d) and the services as promised are the services within the meaning of section 2(1)(d)(ii) of CP act. and hence the issue is decided accordingly.

As to issue No.2

9.        The OP has admitted that the deceased had been insured under three policies with the OP. The basic dispute is about the repudiation of claim for the reason of suppression of material fact about undergoing surgery and treatment at Tata Cancer Hospital, Mumbai. The OP has come with a specific defense that the insured had undergon a surgery for “Buccal Mucos Rt.side which means jaw cancer” on 10/4/2009 and treatment of cancer at Tata Cancer Hospital, Mumbai, however he did not disclose it while filling the proposal form for obtaining insurance.   But the OPs have not examined the doctor, who has issued the discharge card and the treatment papers, on affidavit by way of evidence to prove its contention. Therefore, without any evidence to that effect, the contention of the OP cannot be said to be proved. Therefore, the OP Nos.1 to 3 have not discharged their burden which lies on them  when they have come with a specific defense. Therefore, the contention of OP Nos.1 to 3 cannot be accepted. Hence there is no suppression of material fact by the insured while obtaining the policies in question and hence the complainant is entitled for the sum assured under the three policies as per following order..  

Final order

1. The Complaint is partly allowed.

2.  The OP Nos.1 to 3 shall jointly and severally pay to the complainants sum assured under the three policies bearing Nos. 973704278 , 973712466 & 973712640 alongwith interest @9% p.a. thereon from the date of judgment till realization.

3.  The OP Nos.1 to 3 shall jointly and severally pay to the complainants a sum of Rs.10,000/- towards compensation for mental and physical harassment and further Rs.5,000/- towards cost of proceeding.

4. Copy of the order be furnished to both the parties free of cost.

(Smt.Kalpana Jangade (Kute)  (Smt.Kirti Vaidya (Gadgil)     (Shri.Atul D.Alsi)

               Member                                 Member                                    President