THE BRIEF FACTS OF THE CASE:

1. The complainant has filed this complaint against the Opposite Party

U/s 12 of Consumer Protection Act seeking relief of Rs.9,46,092- on various heads of claims and requested to issue direction to OP to make payment of the said amount.

2. The complainant has claimed that his father late Hanumanthappa S/o.  Yenkappa  has purchased policy from OP bearing Policy No. 21629081 dt. 21-07-2015 for Rs.7,36,092/- by paying half yearly premium of Rs.25,116/ and in  the said policy  the complainant is the nominee. The deceased policyholder was died on 29-09-2015 due to heart attack at Thirthabhavi village of  Lingasugur  Taluka District Raichur. Thereafter  the complainant  has  approached  the  Branch  of  the  Opposite Party No-1 and has submitted claim form along with required documents. But surprisingly the OP has sent a letter on
   05-01-2017  by  repudiating the claim of the complainant falsely saying that the insured has deliberately and intentionally giving false statement regarding his age in the proposal form and committed the breach of good faith required from him regarding the contact of insurance. Hence the complainant submits that repudiation action of the Op is illegal and improper and also without any basis and thereby the Op has shown the deficiency of service in settling the claim of the complainant. Hence he requested to award by granting relief claimed in the main complaint along with benefits available under the above said policy.

3.       After service of notice to the Opposite Party, has appeared through his counsel and filed his written version stating that, the facts of the present case falls squarely within the ambit of the judgment of the Hon’ble National Commission in the case of Mrs. Lakhbir Kaur & Ors V/s. LIC of India & Ors decided on 16^th December, 2014 in the RP No. 1840 wherein the National Commission upheld that the repudiation was justified for the reason that insured by deliberately and intentionally giving false statement regarding his age in the proposal form committed the breach of good faith required from him regarding the contract of insurance. The commission observed as follows:

That in the instant complaint, the deceased life assured while submitting the proposal from mentioned false date of birth, since, the fact of the case is covered squarely within the ambit of the above judgment. It is submitted that, the policy was obtained by concealing the material facts with respect to his age. Had the OP being aware of this fact, the said policy would not have been issued in favour of the DLI, since the DLI was beyond the permissible insurable age limit. Therefore, the claim has been rightly repudiated as per the terms and conditions of the policy for non disclosure of material facts.

          That, in the instant case is false, malicious, incorrect and has been filed with a malafide intention and is nothing but an abuse of the process of the law and is an attempt to waste the precious time of this forum, as the same has been filed by the complainant just to avail undue advantage. The complaint is liable to be dismissed U/sec. 26 of CP Act., The instant complaint, it would be observed that, the averments made therein, are vague, baseless and with mala fide intent. The complainant has made misconceived and baseless allegations of deficiency of service without any documentary evidence in support of his allegations made in the complaint.

          It is further submitted that, the late Hanumanthappa, after completely understanding the terms and conditions of the product “Met Endowment Saving Plus” submitted a duly signed proposal form dt. 20-07-2015 wherein the deceased life assured had offered to pay half yearly premium of Rs.49,991/- against a sum assured of Rs.7,36,092/-. It is submitted that, the complainant was nominated as the beneficiary under the said proposal form. It is further submitted that, at page-1 in the proposal form, there was a section wherein the DLI was asked to provide his date of birth and DLI shown is as 01-02-1967. Upon the receipt duly filled up proposal form along with the initial premium, the Op evaluated and processed the proposal form on the basis of the information furnished by the DLI and issued the policy bearing No.21629081 to the DLI with effective date of coverage from 21-07-2015. Thereafter, the policy documents along with the schedule and the standard terms and conditions thereto was dispatched to the DLI at his address.

          It is further submitted that, the said policy was issued by the Op relying upon the information provided in the proposal form by the DLI regarding the various aspects including the personal, professional and other details. It is further submitted that, the proposal form which was duly signed by the DLI clearly had a provision for a declaration at page 5 of the proposal form given by the DLI.

It is further submitted that, the Op received Death Claim intimation from the complainant it was revealed that, the DLI had expired on 29-09-2015, which was duly acknowledged by the OP vide letter dt. 02-12-2016. That as the claim being an early claim since the DLI died within a short span of 2 months from the date of insurance of the policy, the Op carried out an investigation to settle the claim of the complainant. During the investigation it was revealed that, the DLI wrongly mentioned his date of birth in the proposal form. It is submitted that during the course of investigation the Aadhar Card of the DLI was procured and as per the Aadhar Card, the date of Birth of the DLI was 01-01-1944. The DLI in the proposal form has mentioned it as 01-02-1967. It is submitted that as per the proposal form the age of the DLI at the time of submitting the proposal form was 48 years, whereas in actual the DLI was more than 71 years and as such same was beyond the permissible insurable age limit.

The Op repudiated the claim on 05-01-2017 on the ground of suppression of material fact. It is submitted that, the contract of insurance including the contract of life assurance are contract wherein fides and every material fact must be disclosed otherwise there is good ground for revision of the contract. The DLI was asked specifically about his age perspective of the OP and had the DLI would have given the correct answer, the OP would have never issued the said policy in favour of the DLI. Since the DLI played fraud upon the OP and induced the Op to issue the policy in his favour, the OP is within its right to treat the contract as void and as such, the Op is not liable to pay any benefit under the said policy.

The concealment of actual date of birth, amounted to suppression of material facts and hence the contract of insurance is liable to be rescinded as per  section 45 of the Insurance Act 1938 and no benefit is payable. Section 45 of Insurance Act, 1938 :

                It is submitted that, the Hon’ble Supreme Court in the case of Satwant Kaur Sandhu V/s. New India Assurance Co. Ltd., reported in (2009) 8 SCC has held that, in a contract Insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a “material fact”. If the proposer has knowledge of such fact, he is obliged to disclose in particularly while answering questions in the proposal form. Needless to emphasis that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance. It is submitted that the actual age of the deceased life insured was a material fact for the Op for anything at a decision whether to issue the said policy or not and if yes, at what premium etc., Thus the DLI by concealing the material facts with respect of his age induced the Op to issue the said policy in his favour and hence, the OP rightfully repudiated the claim of the complainant.

          It is submitted that the contract of insurance is of utmost good faith and in as much as there has been misrepresentation in disclosure of material facts in obtaining the said policy. It is vitiated and we are unable to process the complainant’s request for the payment for the claim amount. The Hon’ble Supreme Court of India in United India Insurance Co. Ltd., V/s. MKJ Corporation (1976) 6 SCC 428 has held that it is a fundamental principle of insurance law that faith must be observed by the contracting parties. Good faith forbids either party from non disclosure of the facts which the party privately knows to draw the other into a bargain from him ignorance of that fact and his believing to the contrary. To the similar effect is the judgment of the Hon’ble Supreme Court in Modern Insulators Ltd., V/s. Oriental Insurance Co. Ltd., (2009) 2 SCC 734. Hence he prayed to dismiss the complaint with exemplary cost.                                     

4.      The complainant has examined as PW-1 by his evidence affidavit and he reiterated the averments of his complaint and has produced documents which are marked as Ex.P-1 to Ex.P-03.   On the other hand, the Opposite Party filed his affidavit evidence and documents marked as Ex.R-1 to
Ex.R-4.

5.    Heard the arguments on both sides and perused the records.

6.       On perusal of the above said facts, the point for consideration arose are:

1.       Whether the complainant proves that, there is a deficiency of service on the part of the Opposite Party in settling the claim of the complainant?

2.       Whether the complainant is entitled for the reliefs claimed?

3.       What order?

7.       We answer the above points as under:

Answer to Point No.1         :  In the Affirmative.

Answer to Point No.2         :  Partly in the affirmative.

Answer to Point No.3         :  As per final order.

REASONS

POINT NO.1:-

8.       Considering the above said facts and circumstances of this case, the deceased Hanumanthappa S/o. Yenkappa was having a life insurance policy issued by Opposite Party ( In short OP) dt. 21-09-2017 under policy No.21629081 for a sum assured amount of Rs.7,36,092/- and has paid policy premiums. But the deceased policyholder was dead on 29-09-2015 due to heart attack in Thirthbhavi village of Lingasugur Taluka of Raichur District and the complainant was nominee in the above policy are all admitted facts by both parties.

9.       The learned counsel for complainant has mainly claimed that, the Op has repudiated the claim of the complainant on false and baseless grounds falsely stating that, the deceased has suppressed the material facts regarding his age and thereby the claim in respect of above policy are not payable. He further contended that, the repudiation claim of the complainant is not only illegal but against the own documents produced by OP in this case, as the deceased has not at all suppressed any material facts willfully or knowingly in the proposal form including his age. So the question of repudiation of this claim, after his death does not arise for Opponent. Hence the repudiation action taken by Op is not sustainable in the eye of law and same is amounts to deficiency of his service towards the complainant which caused the complainant great mental shock and agony including the monetary losses. So he prayed to allow the complaint with cost.

10.     On the other hand, the learned counsel for Op has contended that, the deceased policyholder was deliberately and intentionally has suppressed the material facts, while obtaining the above said policy which is nothing but breach of good faith required from him regarding contract of Insurance as the policy in question was issued by OP in favour of the deceased under “Utmost Good Faith”, believing the information furnished by him are true and correct.

11.     The learned counsel for Op further argued that, during investigation of this matter, Aadhar Card of the deceased life insured (in short DLI) clearly shows the date of birth of the deceased was 01-01-1944 whereas the DLI in his proposal form has mentioned his age as 01-02-1967. So he argued that, at the time of proposal, the age of deceased was “48” years whereas in actual the DLI was more than “71” years and as such same was beyond the permissible insurable age limit. Hence the Op has rightly repudiated the claim on 05-01-2017 on the above ground of suppression of material facts which is as per the terms and conditions of above said policy, which does not constitute any sort of deficiency of his service towards the complainant as alleged by him. Under these circumstances, the claim of the complainant is not payable by Op and as such there is no legal obligation to pay the same. Hence the counsel for Op prays for dismissal of the complaint with cost.

12.     In order to establish their facts, both parties have led their respective evidence affidavits with their supporting documents and citations.

13.     On perusal of above arguments of both parties, it is the duty of the Opponent to prove that the deceased life assured has suppressed the material facts knowingly and has deliberately and made a false statements regarding his age in the proposal form instead of his actual age .

14.     In this regard, on careful perusal and on consideration of Ex.R-1 the proposal form copy of the deceased life insured by name Hanumanthappa produced by OP in this case, it is clearly revealed that in the said proposal form in the first page itself at Col.No.16 of the said form, the DLI has mentioned and furnished his “PAN CARD” and “AADHAR CARD” for the proofs his identity and also for his address proofs including his age proofs. So it shows that, the DLI has furnished all his documents before the OP at the time of his proposal itself for having his above said policy, but the OP has considered the age of deceased as mentioned in the “PAN CARD” and accepted the proposal after satisfying himself based on the said information’s. Then only the Op has issued the above said policy in favour of deceased Hanumanthappa. Hence in our view, the deceased has not suppressed any material facts regarding his actual age as alleged by the Op. Because he has produced his both ‘PAN CARD” & AADHAR CARD” along with his proposal form itself. Under these circumstances, the duty cast on the OP to verify the correctness of both documents and to find out the real age of the deceased, before accepting the proposal when both documents are very much available with him. But now OP is trying to shift the said duty cast on him, against deceased life assured which is not fair on the part of the OP. Therefore such stand taken by OP is not sustainable in the eye of law and the question of the suppression of material facts on the part of DLI does not arise.

15.     On perusal of the Ex.R-3 (a) the investigator report produced by OP wherein he has reproduced the said documents such as “PAND CARD” and ‘AADHAR CARD” including voters card etc., But the OP has not produced any iota of evidence to show that, the deceased insured has knowingly and intentionally made a deliberate false statements in the proposal  form regarding his age. So in the absence of the said proofs, such contention taken by OP holds no good in the eye of law. Therefore, in our view, the repudiation action on the claim of the complainant is illegal and same is not maintainable in terms of the policy conditions as the same is liable to set aside and such act of Op is nothing but a deficiency of his service towards complainant. As observed above supra, in our humble opinion the complainant has proved the Point No-1. Hence the same is answered in the Affirmative. For our above conclusion with due respect, we have considered the principles laid down in the citations referred by both counsels as per list of citations.

POINT NO.2:

16.     As discussed by us in Point No-1 and when we answered the Point No-1 in the affirmative, the claim of the complainant is maintainable against OP and the OP is under legal obligation to answer the claim of the complainant.

          The complainant has claimed in all Rs.9,46,092/- on various head claims. But to substantiate his above total claim, the complainant has not produced any cogent proofs. But even in the absence of said proofs, in our view the complainant is entitled just compensation on acceptable heads of claim including a sum assured amount of Rs.7,36,092/- from OP. Therefore, it is just and proper to award Rs.20,000/- towards the pain and suffering of the complainant and Rs.5,000/- towards the cost of his litigation which will meet the ends of justice. Hence the complainant is entitled to Rs.7,36,092/- plus Rs.20,000/- plus Rs.5,000/- = total Rs. 7,61,092/- from OP and OP is liable to pay the same to complainant. Hence we answered the Point No-2 Partly in the affirmative. Thus we proceed to pass the following

                                                                                                 //ORDER//

        The complaint filed by the complainant U/s 12 of the Consumer Protection Act, 1986 is allowed partly with cost against Opposite Party.

Consequently Opposite Party is liable to pay Rs.7,61,092/- to the complainant along with interest at the rate of 8% p.a. from the date of this complaint till realization of entire amount.

The Opposite Party is directed to comply this order within two months from the date of this order.

        Intimate the parties accordingly.

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