Oral order: (B.N. Rao Nalla, President)
1. This is a complaint filed Under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 by the complainant to direct the opposite party to pay enhanced assured sum of Rs.28,00,000/- and basic assured sum of Rs.2,00,000/- along with interest @ 18% pa from 27.06.2012 till the ate of realization, to pay compensation of Rs.3,00,000/- and costs of Rs.25,000/-.
2. For the sake of convenience, the parties are described as arrayed in the complaint
3. The case of the complainant in brief, is that her husband, during his life time, obtained Birla Sun Life Insurance Dream Endowment Plan Policy bearing No. 004198152 for enhanced Assured sum of Rs.28,00,000/- and basic assured sum of Rs.2,00,000/- totalling Rs.30,00,000/- on 28.06.2010 after paying first premium amount of Rs.66,201/- and submitted his proposal form on 22.06.2010. Its maturity date was 28.06.2040 and the term of the policy was 30 years. The pay term was 10 years. The policy covers BSLI Dream Endow Life-Term 30 Pay GSD 30 and BSLI Dream Endowment BSA-Term 30 Pay 10. Her husband was paying the premiums regularly. While the matter stood thus, her husband died on 27.06.2012 due to Plasma Cell Leukemia, i.e, Blood Cancer and it was registered on 29.08.2012. On 31.10.2012, the opposite party repudiated the claim on the ground that the life assured suppressed Diabetes Mellitus in the application for the insurance on 22.06.2010. She requested the Claims Redressal Machinery on 28.11.2012 to review the claim on the ground that the insured was not having DM before submitting his application. However, it confirmed the repudiation vide their reply dated 31.12.2012, while sending back the cheque for Rs.75,671.42 and Rs.66, 201/- towards the surrender amount and return of the last premium amount. On 12.06.2013 , she got issued a legal notice to the opposite party requesting to furnish copies of the Insurance policy as well as application for insurance of her husband but they did not supply the same. On her complaint, the Hon’ble Insurance Ombudsman replied on 30.04.2013 stating that they have monetary jurisdiction upto Rs.20,00,000/- only and since the claim was about Rs.28,00,000/- , hence they have no pecuniary jurisdiction. There is no nexus between the alleged suppressed disease of DM with that of cancer. Her husband was never treated for DM prior to 22.6.2010. Her husband was admitted in Yashoda Hospital, Hyderabad with complaints of fever, head-ache, Myalgia and vomiting with 6-7 days duration for the first time. After investigations, it was diagnosed as Plasma Cell Leukaemia Tumour Lysis Syndrome and he was discharged on 23.07.2010. He was admitted at Omega Hospitals and there it was confirmed that the patient was suffering from Plasma Cell Leukaemia and discharged on 7.8.2010. The insured died on 27.06.2012 at his house with cancer. Diabetes neither causes cancer nor aggravates cancer. There was no evidence that her husband was treated for DM prior to the date of proposal. Hence the repudiation of the claim amounts to deficiency in service and also unfair trade practice on the part of the opposite party. Hence the complaint.
4. The opposite party filed written statement, while admitting issuance of policy in question on 28.06.2010 to the husband of the complainant and complainant is the nominee and receipt of intimation of death of DLI (Deceased Life Insured) on 27.06.2012 and death claim on 29.08.2012, contended that during the course of investigation, it was established that the DLI was under treatment for Diabetes Mellitus prior to the application . Moreover, it was also established that the DLA was suffering from Plasma Cell Leukaemia and Type II DM from the Medical Documents of Omega Hospital and in the Clinical Summary For New Admission that the life assured was suffering from Diabetes Mellitus since 9 years. But the said fact was not disclosed by the life assured in the proposal form. However, without admitting any liability under the policy, they refunded the cash surrender value under the policy as ex-gratia amounting to Rs.75,671.42 and another cheque amounting to Rs.66,201/- as refund of the premium received, after the death of DLA, towards full and final payment vide letter dated 10.09.2012. The opposite party has rightly repudiated the claim of the complaint on the ground of suppression of material facts by the DLI at the time of filling up of the proposal form. Hence prayed to dismiss the complaint.
5. During the course of enquiry, in order to prove her case, the complainant filed her evidence affidavit and got marked Ex. A1 to A and on behalf of the opposite party filed the evidence affidavit of Mrs. Kshama Priyadarshini, Authorized representative of opposite party and Ex. B-1 to B-7 are marked.
6. Counsel for the complainant and the opposite party had advanced their arguments reiterating the contents of complaint, written statement , affidavit evidence in addition to filing of written arguments. Heard both sides.
7. The points that arises for consideration are
(i) Where there is any deficiency in service on the part of the opposite party and whether the complainant is entitled for the reliefs as prayed for ? If so,
(ii) to what relief ?
8. POINT NO. 1:
There is no dispute that the life assured/husband of the complainant obtained BSLI Dream Endowment Plan Policy in question on 28.06.2010 from the opposite party for an assured sum amounting to Rs.2,00,000/- and an enhanced assured sum of Rs.28,00,000/- vide Ex. B-1, for which, a premium amount of Rs.66,201/- was paid vide Ex. A-2. There is also no dispute that the complainant is the nominee. There is also no dispute that the husband of the complainant/life assured died on 27.06.2012 due to Blood cancer. There is also no dispute that the Insurance claim submitted by the complainant was repudiated on the ground of suppression of disease, i.e, Diabetes Mellitus in the proposal from by the husband of the complainant on 22.6.2010. There is also no dispute that the opposite party sent back to the complainant the cheques for Rs.75,671.42 and Rs.66, 201/- towards the surrender amount and return of the last premium amount. The only question is whether there is suppression of the disease in the proposal form by the DLI/husband of the complainant.
9. (i) The contention of the complainant is that the opposite party repudiated the Insurance claim submitted by her after death of her husband/life assured amounts to deficiency in service and unfair trade practice on the part of the opposite party.
(ii) The opposite party rebutted the same contending that, during the course of investigation, it was established that the DLI was under treatment for Diabetes Mellitus prior to the application. Further, it was established that the DLA was suffering from Plasma Cell and Type II DM. The said fact was also evident from the Medical documents of Omega Hospital and in the clinical summary for New Admission that the complainant was suffering from Diabetes Mellitus since 9 years.
(iii) In her evidence affidavit, the complainant stated that repudiation of the claim on the ground of suppression of material fact , i.e., Diabetes Mellitus in the application for Insurance dated 22.6.2010 is not correct and valid. Her husband died on 27.06.2010 due to Plasma Cell Leukaemia, i.e. Blood Cancer. There is no nexus between the alleged suppressed diseases of DM with that of Cancer. Her husband never treated for DM prior to 22.06.2010. As such, the alleged DM has nothing to do with the Cancer. She argued that diabetes neither causes cancer nor aggravates cancer. Further, she challenged the opposite party to show that there is any contemporaneous evidence, such as, investigation reports, prescriptions, Medical bills, hospital discharge summaries or any certificate issued by any doctor stating that her husband was treated for DM in any particular period of time prior to the date of proposal. She stated that in the Discharge Summary dated 23.07.2010 issued by Yashoda Hospital in the ‘Past History’ column, it was mentioned as 'known case of Diabetes Mellitus Type-II on treatment'. In fact, the said entry is an erroneous one. Her husband was not a Diabetic patient. Admitting the typographical mistake occurred in the case sheet, on 17.09.2010, Dr. A. Kamalesh, the Consultant physician of Yashoda Hospital certified that her husband does not have pre-existing DM/HTN as mentioned in the Discharge Summary due to mistaken information. She further stated that on 30.08.2010 Dr. Satya Dattatreya, Omega Hospitals also issued a certificate stating that his husband had no history of Diabetes, Hypertension, or cardio pulmonary problems and he further stated that the treatment of Multiple Myeloma includes high does Dexamethasone, which is bound to cause rise in blood sugar levels for which a Physician was consulted, who, accordingly prescribed mild oral anti diabetics to be taken as long as the treatment of Multiple Myeloma with steroids ( Dexamethasone) would continue ( approximately 16-20 weeks).
(iv) We have perused the medical record. Ex. A-12, Discharge Summary, dated 23.07.2010, issued by Yashoda Hospital discloses that the patient was admitted in their hospital with the complaints of fever, headache, Myalgia and vomiting since 6-7 days and finally he was diagnosed as , Plasma Cell Leukaemia ( under evaluation) Tumour Lysis Syndrome. In the Past History, it is mentioned that the patient was known case of Diabetes Mellitus type –II on treatment. But the complainant contended that the said entry is an erroneous one and her husband was not a Diabetic patient. Admitting the typographical mistake occurred in the case sheet, on 17.09.2010, Dr. A. Kamalesh of Yashoda Hospital vide Ex. A-15 and the certificate dated 30.08.2010 issued by Dr. P. Satya Dattatreya of Omega Hospitals under Ex. A-16 supports the contention of the complainant that the life assured had no history/pre-existing complaint of Diabetes except developed due to usage of steroids during the treatment of Multiple Myeloma. But the opposite party did not choose to cross examine the said doctors and failed to prove that the statements of the doctors are wrong and hence we have no option except to accept the averments of the complainant. We have also perused the Clinical Summary for New Admission of Omega Hospitals, wherein, against the column, Diabetes, it is simply written as , 9 years. But it was not written based on any Clinical Test Reports. But the said doctor was not examined or did not place any test report by the opposite party Insurance Company to prove the DLI was suffering from DM. Ex. B-2 is the Medical Examiner’s report dated 16.06.2010, which, shows that the DLI was examined by Dr. N. Md. Athaulla, MD. Consultant Physician/Cardiologist, Hyderabad – 500020 on the basis of the tests conducted by Tapadia Diagnostic Centre, Opp. Saptagiri Theatre, RTC X roads, Hyderabad dated 16.06.2010 , which shows , Nil ‘ against the column , ‘Sugar’. But, the opposite party did not choose to examine either the said doctor or the said Diagnostic to prove that their investigations are wrong. Hence we could not found fault with the investigation results of the said Diagnostic Centre. The DLI submitted the application on 22.06.2010 after Medical examination by Dr. N. Md. Athaulla on 16.06.2010. In the Discharge Summary of Omega Hospitals vide Ex B-5, no-where it is mentioned that the DLI was suffering from Diabetes Mellitus on the basis of the Clinical Test reports. The opposite party did not place any medical record before this Commission to show that the DLI took treatment for Diabetes Mellitus prior to the submission of the Application form. Even if we assume, for the sake of arguments, if the DLI had pre-existing Diabetes Mellitus prior to the submission of the Application form, the opposite party failed to prove that there is nexus in between the Diabetes Mellitus and the Cancer and on that cause the DLI died. It is not the case of the opposite party that the Insurance policy was not in force on the date of death of the deceased policy holder and the complainant is the nominee. The above circumstances infer that opposite party failed to prove that the DLI was having pre-existing disease of Diabetes Mellitus and he took treatment for the same prior to the submission of application form . Hence there is no force in the contention of the opposite party that the DLI had pre-existing disease prior to the filing of the application form.
10. After considering all the foregoing facts and circumstances and also having regard to the contentions raised on behalf of the complainant and opposite party, this Commission is of the view that the opposite party failed to prove that the DLI ( Deceased Life Insured )/husband of the complainant suffered pre-existing disease, i.e, Diabetes Mellit
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us prior to the submission of application form to the opposite party, he suppressed the said fact in the application form and he died due to the said cause. Hence, there is deficiency in service on the part of the opposite party for repudiation of the Insurance claim of the complainant on the above ground. Therefore, the complainant is entitled for the enhanced assured sum of Rs.28,00,000/- and basic assured sum of Rs.2,00,000/- along with interest @ 9% pa from the date of repudiation, i.e. 31.10.2012 till the date of realization, to pay compensation of Rs.1,00,000/- for mental agony and costs of Rs.25,000/-. However, admittedly, since the opposite party already paid cheques for Rs.75,671.42 and Rs.66,201/- towards the surrender amount and return of the last premium amount to the complainant, the opposite party is directed to pay the above direction after deducting these two amounts vide two cheques. POINT NO. 2: 11. In the result, the complaint is allowed in part and the opposite party is directed to pay the enhanced assured sum of Rs.28,00,000/- and basic assured sum of Rs.2,00,000/- along with interest @ 9% P.A. from the date of repudiation, i.e. 31.10.2012 till the date of realization, to pay compensation of Rs.1,00,000/- for mental agony and costs of Rs.25,000/- , after deducting the above two amounts already paid to the complainant vide two cheques, to the complainant. Time for compliance four weeks.