BEFORE THE ADDITIONAL BENCH DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MYSURU.

Consumer Complaint (C.C.)No. 1336/2016

Complaint filed on 20.07.2016

Date of Judgement.06.04.2017

PRESENT                                : 1. Shri Ramachandra  M.S.,  B.A., LL.B.,

                                                         PRESIDENT

                                       2. Shri  Thammanna,Y.S., B.Sc., LL.B., 

                                             MEMBER

Complainant/s               :                   1. Smt. K.R. Jyothi,

W/o Late B.S.Prakash,

                                                          R/at # 114/3,

                                                          6^th cross, Besthara Block,

                                                          Near Karimaramma Temple,

                                                          Vidyaranyapuram,

                                                          Mysore.

(Sri B.S. Chandrashekar., Advocate)

V/s

Opponent        /s                     :                     1.The Branch Manager,

LIC of India,

Branch-II, LIC Division Office Building,

Bannimantap,

Bangalore Road,

Mysore.

( Smt. Sandhya. S., Advocate )

SHRI RAMACHANDRA . M.S.,

 PRESIDENT

JUDGEMENT

The complainant has filed the complaint under section 12 of the C.P.Act 1986. Against the opposite party pray for the settlement of claim of amount and compensation other reliefs as prayed in the complaint.

2. The brief facts alleged in the complainant is having one LIC policy at opposite party office bearing policy No. 726021530 dated 19.06.2013 assured sum of Rs. 1,00,000/- the complainant’s husband was paying the quarterly instalment premium of Rs. 2,035/- from the date of policy up to December 2014. Unfortunately, the husband of the complainant passed away on 17.01.2015 leaving behind him the complainant and her son as his legal heirs.

3. It is further submitted that, afterwards on 20.03.2015 the complainant wrote a letter to the opposite party company requesting them to pay the amount covered under the aforesaid LIC policy bond. Thereafter the complainant received a letter from opposite party on 17.08.2015 stating that the husband of the complainant was suffering from kidney problem as such the complainant is not entitled to receive the amount covered under the aforesaid policy due to the deceased policy holder. After receipt of the said letter from the opposite party, the complainant once again wrote a letter on 30.09.2015 requesting the opposite party to pay the amount legally due to the complainant under the aforesaid policy, but the opposite party have not paid any amount to the complainant even though the complainant is entitled to receive the amount covered under the aforesaid policy due to the deceased holder as per law.

4. It is further submitted that at the time of obtaining the policy the husband of the complainant was underwent medical cheque up and at that time he was in good health condition and after fulfilling all the formalities then only the opposite party have issued the above referred LIC policy to the husband of the complainant. The medical certificate of complainant’s husband has been submitted to the opposite party at the time of obtaining the policy. Further the husband of the complainant has not violated the terms and conditions of the policy, at the time of obtaining the policy. Only from last few months, the husband of the complainant has suffered ill –health as such he has been taking treatment at J.S.S. hospital , mysuru, the complainant’s husband was not a smoker, he was not having any type of bad habit he never underwent any Dialysis, he was not suffering from kidney problem at the time of obtaining the policy  referred above. As such the complainant being the legal heir of the deceased policy holder, she is entitled to get the amount covered under the aforesaid policy.

5. The complainant   finally got issued a  legal notice to the opposite party on 23.01.2016 calling upon them to pay the bond amount in respect of LIC policy bearing 726021530 dated 19.06.2013 for Rs. 1,00,000/- in favour of the complainant, the said notice has been duly served on the opposite party and the opposite party have sent an untenable reply.

6. It is further submitted that, the opposite party has utterly failed to pay the LIC Bond amount and now the opposite party by giving one or the other reason postponing to pay the policy amount to the complainant as such there is deficiency of service on the part of the opposite party.

7. The complainant further submits that the opposite party have miserably failed to discharge their obligation/duties as per the LIC policy rules and regulations and misused the trust and innocence of the complainant. Hence this complaint the complainant humbly prays that this Hon’ble forum be pleased to direct the opposite party to pay the LIC policy amount of Rs. 1,00,000/- to the complainant.

8. The notice to the opposite party is duly served counsel is engaged and filed version the opposite party has admitted the issuance of policy to the complainant and it was also admitted that premium were paid regular and it is a valid policy. Further opposite party contended they are not liable to pay the claim of complainant for the reason that the complainant has suppressed the fact that he was suffering from pre existing decease much prior to obtaining LIC policy when complainant has knowingly,wilfully and intentionally does not disclosed pre existing decease at the time of obtaining policy it amounts to violation of  conditions of policy for which complainant is not entitle to claim insured amount and opposite party is not liable to pay the claim on these counts the opposite party has repudiated the claim of complainant by assigning the above reasons to settle the claim for these reasons opposite prays for the dismissal of complainant

9. To prove the facts, both complainant and opposite party filed their chief affidavit along with documents. On perusal of the documents placed on board, and on hearing oral arguments and perused written arguments, matter posted for orders.

10. The points that arise for our consideration are;-

1. Whether the complainant proves that there is deficiency in service and unfair trade practice on the part of opposite party by not paying the claim amount to the complainant and thereby he is entitled for the reliefs sought?

2. What order?

11. Our answer to the above points is as follows;

1. Point No.1: In the negative

2. Point No.2: As per final order for the following;

REASONS

12 . Point No.1:- That it is an admitted fact that complainant husband deceased B.S. Prakash  has obtained LIC insurance policy  from opposite party on 19.06.2013 for sum assured of Rs. 1,00,000/- by paying premium of Rs. 2,035 and policy no 726021530 thereafter  he has continued the policy by renewing on all such dates and well within the stipulated period up to year 19.06.2013 to 17.12.2014 all these facts is proved by complainant with material documents in support of his contention, the opposite party has also admitted these facts.

13. Further on 17.01.2015 complainant husband was suffering from decease, unfortunately he passed away on 17.01.2015 by leaving behind the complainant and her son as legal heirs.

14. When complainant approached the opposite party for the settlement of insurance amount  which is due to the legal heirs of deceased B.S. Praksha and they wrote a letter on 20.03.2015 to the opposite party , requesting to pay the insured amount of Rs. 1,00,000/- in reply to the said letter the opposite party gave reply on 17.08.2015 stating that the husband of complainant was suffering from kidney problem as such they are not entitle to receive the amount covered under the aforesaid policy and further the complainant contends that her husband deceased B.S. Praksha was hale and healthy at the time of obtaining the policy and only after medical examination from the opposite party he has obtained policy. Further complainant contends that her husband was not a smoker, he was not having any bad habit he never underwent any dialysis and also he was not suffering from kidney problem at the time of obtaining the policy. Under such circumstance complainant claims for the settlement of insured amount of deceased.

15. Further the claim of complainant is repudiated by opposite party  for above reasons that deceased B.S.Praksha was a smoker  since 20 years,  and he was suffering from Hypertension  since 1 ½  years doctors advised for dialysis 2 years back , i.e., prior to obtaining policy. and thereafter decease has taken treatment for the same at JSS hospital Mysuru for the period from 25.07.2014 to 16.08.2014. The opposite party has produced all the materials and hospital records pertaining to complainant husband. In the said records and reports it is very clear that the deceased has suppressed these facts while obtaining insurance policy from the opposite party the act of the decease is fraudulent act  upon which the opposite party has repudiated the claim for the reason “ non disclosure of material fact by the decease  at the time of obtaining policy.” For these reason opposite party repudiated the claim of complainant.

16. The opposite party in version statement in para 3 contends that complainant in his proposal form while obtaining policy from opposite party has given false and wrong  information in respect of his previous deceased , treatment and hospitalization  and in colum 11(a)  to 11(i) of proposal form complainant did  not disclose  any of his previous  decease, history, when opposite party has investigated these facts and collected medical records as per Ex-4, Ex-5 these exhibits reveals the previous decease history of complainant. After perusal of these exhibits we came to the conclusion that there is material suppression of fact by deceased. This is nothing but violation of conditions of policy for which complainant is not entitle for the relief as claimed in complainant.

17. Here very important fact is that when complainant obtained policy from opposite party is a contract between complainant and opposite party when opposite party has issued policy it was on certain terms and conditions, which were laid down by opposite party, same was agreed, accepted by complainant and obtained policy. When such being the case any violation of policy conditions by the complainant amounts to  violation of policy terms and conditions for which opposite party is not liable to pay. Here in this complaint when there is condition that at the time of obtaining policy complainant is bound disclose all pre existing deceased and other deceased other information and particulars as per the requirement of opposite party in the proposal application.

18. When complainant has knowingly does not disclose any pre existing deceased and other details as sought in the proposal application when it relates to complainant deceased it is a pre existing decease and thereafter if the policy is obtained it amounts to violation of conditions of policy, for which the opposite party company has rightly repudiated the claim of complainant.

19. When opposite party became aware of these facts opposite party has refused to settle the claim of complainant by assigning the above reasons and their action can be termed as lawful and it is in accordance with terms and conditions of policy and company guidelines and the company policy also supports such procedure of opposite party .

20. Further an important and clinching point that complainant has knowingly and wilfully did not disclose the material fact that he had under gone earlier treatment and procedure  prior to obtaining the said policy when this fact came to the knowledge of opposite party it resulted in repudiation of claim for that complainant is not entitle for the relief claimed for the reason that since when complainant violated the conditions of policy and for the breach of contract he is not entitle for any relief claimed. The opposite party has established his defence with cogent and convincing evidence it can be held that the repudiation of complainant claim is justified.

21. This opposite party submits that the complainant has not come to this Honourable forum with clean hands and his case is doubtful the opposite party has not denied the claim by whims and fancies and the opposite party has denied the claim only after the perusal of the claim records of the complainant. In fact the policy issued is subject to certain conditions clauses, warranties, exclusion etc., and this is a contract of at most good faith and this opposite party believes the complainant. But unfortunately, there is suppression of facts and it amounts to non-disclouser of material facts which disentitles the complainant. If there is any mis representations/non disclosure of material facts whether by the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of any claim and therefore the claim of the complainant is rightly rejected by the opposite party.

22. The complainant has knowingly, wilfully has tried to conceal that he was suffering from hypertension and kidney problem much prior to obtaining policy. From opposite party the complainant did not disclose these facts to the opposite party at the time of obtaining policy the act and omission of complainant is a fraudulent act in order to make wrongful gain.

23. In view of the above, the complainant is not entitled to any relief at the hands of this Honourable Forum as there is absolutely no deficiency of service on the part of opposite party at any point of time.

24.The opposite party has relied   the below mentioned rulings of Hon’ble National Commission in support of his contention:

1. Before the National Consumer Commission, New Delhi in Revision Petition No. 4770/2013 between , Manager LIC Madhugiri Branch Vs Muddu Lakshmi

2. Before the National Consumer Commission, New Delhi in between, Vinitasethi Vs ICICI Prudential Life insurance company Limited reported in CPJ part 3-2016 page -254.
3. Before the National Consumer Commission, New Delhi in Revision Petition No. 2996/2015 between Sangeeth halwe  V/s Life Insurance corporation of India
4. Before the National Consumer Commission, New Delhi in between, Life Insurance corporation of India Vs Vimala devi  reported in CPJ-2016 part-1 page-57
5. Before the National Consumer Commission, New Delhi in between, Shanthidevi Vs Life Insurance corporation of India reported in CPJ-2016 part-3 page-409

25. The gist and principal of the above ruling in totality is suppression of material facts of previous deceased it amount to violation of policy conditions for that claim is repudiated contract between parties falls in category of contract “uberrimae fidei “ it is not for proposer to determine whether information sought for is material for  the purpose of policy or not it was bounded duty of assured to disclose facts nexus  point has to be eschewed out of consideration otherwise the “uberrimae fidei “  shall stand violated repudiation justified.

26. The principles of these rulings is aptly applicable to the defence of opposite party. The opposite party has successfully supported his defence by way of material evidence and the ruling of national commission and thereby he has proved that the repudiation of complainant claim is justified.

27. In view of these facts we are of our definite view that there is no deficiency in service on the part of opposite party, they not liable to pay compensation to complaint. When such being the case the complaint is liable to be dismissed.

28.Further the complainant failed to prove his case beyond reasonable doubt and also miserable failed to prove that there is deficiency in service on the part of opposite party

29. According to this forum we answered Point no.1 in the negative  and pass the following:

30. Point no.2:- For the above discussion we here by proceed to pass the following:

ORDER

1. The complaint is hereby dismissed.

2. Give the copies of this order to the parties, as per Rules.

(Dictated to the stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on the 6^th   April  2017)  

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,    

          Member.                                                             President.                                           

LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED ON BEHALF OF COMPLAINANT

Evidence by way of affidavit on behalf of complainant:

CW-1           :         K.R. JOYTHI

List of Documents on behalf of complainant:

1. :    Copy LIC Bond dated 19.06.2013
2. :    Endorsement issued by LIC dated 07.04.2015
3. :    4 nos ,Refund premium receipts dated 24.09.2013
4. :    Death certificate
5. :    Adhar card
6. :    2 Voter ID cards
7. :    Letter of complainant
8. :    Medical attendant certificate
9. :    Certificate of hospital
10. :    LIC form
11. :    LIC Letter

LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED ON BEHALF OF OP.

Evidence by way of affidavit on behalf of OP :

RW-1           SHAMBHU NAYAK

List of Documents on behalf of OP :

1. :    Proposal no. 1812 – Ex.1
2. :    Policy Bond  72602130 Ex-2
3. :    Medical examination confidential report  Ex-3
4. :    JSS hospital IP record Ex-4
5. :    JSS hospital case record no 16464  Ex-5
6. :    JSS hospital staff consultant notes   Ex-6
7. :    JSS hospital I.P record
8. :    Repudiation letter.

Shri Thammanna Y.S.,                                 Shri Ramachandra M.S.,    

          Member.                                                             President.