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Max New York Insurance Co. Ltd. & Others v/s V. Narayana

    Appeal No. 1143 of 2011

    Decided On, 16 April 2012

    At, Karnataka State Consumer Disputes Redressal Commission Bangalore

    By, MEMBER

    For the Appellants: P.N. Manmohan, Advocate. For the Respondent: H. Anjana Murthy, Advocate.

Judgment Text

K. Ramanna, President

This appeal is filed under Section 15 of the C.P Act, 1986 by the Opposite Parties with a prayer to set aside the order dated 07.02.2011 passed by the DF, Bangalore Urban in Complaint No.2507/2009 whereby complaint filed by Respondent came to be allowed in part directing the appellants to pay a sum of Rs.12,00,000/- towards settlement of the policy bearing No. 456578194 with interest at 9% p.a from 31.03.2009 till the date of payment and litigation expenses of Rs. 5,000/- and directed to comply the same within four weeks from the date of order. Assailing the same, appellants have come up with this appeal on various grounds.

2. The appellant also filed an application under Section 5 of the Limitation Act to condone the delay of 11 days caused in preferring this appeal supported by an affidavit of Sri. Syed Asif, Manager (Claims) explaining the reasons for the delay in preferring this appeal.

3. After service of notice, the respondent appeared through counsel and resisted the appeal contending that, the DF is right in allowing the complaint in part and is in accordance with law and it does not require any interference from this Commission.

4. We have heard the arguments of the learned counsel for both sides and perused the records.

5. The points that arise for our consideration in this appeal is to consider is that whether:

1. The appellants have shown sufficient and reasonable grounds to condone the delay of 11 days in preferring this appeal?

2. The District Forum is justified in allowing the complaint filed by respondent?

3. If so, what order?

6. Point No.1 and 2:- It is the case of the respondent that, his mother obtained insurance policy to the extent of Rs. 12 lakhs which was issued after medical fitness certificate issued by the appellants’ doctor. The mother of the respondent/complainant died on 05.02.2009 at Bangalore Hospital at the age of 54 years due to sudden non- functioning of heart. She had no diagnostic history of heart ailments. But the claim form submitted by the respondent was repudiated by the appellants on the ground that the policy has been obtained by suppressing pre-existing disease. Therefore, the complaint came to be filed.

7. After service notice, the appellants/OPs appeared through counsel and filed a detailed version stating that the complainant has not approached the Forum with clean hands and the repudiation was based on the suppression of material facts in the proposal form. There is a breach of terms and conditions of the contract and the deceased nor the complainant have not mentioned about her disease namely Diabetes Nephropathy and COPD and was undergoing treatment for the same. This material medical non-disclosure on the part of DLI is sufficient to repudiate the said policy. DLI passed away within short span of signing the proposal form, which itself is a strong ground to raise reasonable doubt over the correctness of the material representations made in the proposal form. The medical records indicates that the mother of the respondent suffering from Diabetes Mellitus for a period of 13 years and Myocardial Infraction for a period of 6 years prior to her death. Therefore, sought for dismissal of the complaint.

8. There is no dispute with regard to the policy issued by the appellants in favour of deceased who is none other than the mother of respondent and the sum assured was Rs. 12 lakhs. According to the complainant after submitting the claim form and before acceptance of the proposal, the insured had undergone thorough medical checkups through appellants’ Doctors in the panel. If there was any such disease, they would have detected at the time of their examination. Since she was hale and healthy and died suddenly, the allegations made against the deceased that the policy was taken by suppressing pre-existing material facts cannot be accepted.

9. The DF after considering the facts and circumstances of the case rightly allowed the complaint in part. Advocate for the appellant herein contended that the date of birth of life assured as mentioned in the proposal form dated 16.06.2008 is 20.09.1955. So as on the date of proposal, the life assured was aged about 54 years. But, the DF fails to appreciate this fact. Though the appellants have taken a contention that the insured died within a span of time by suppressing pre-existing disease, therefore, prays for dismissal.

10. We have carefully gone through the material placed on record by both the parties. It is an undisputed fact that, late B.Rukmini is none other than the mother of the respondent. The Life Maker Premium Unit Linked Plan policy was issued in her name for Rs. 12,00,000/- and she died during the subsistence of the policy and the respondent was made as a nominee. There is no dispute with regard to the death of Rukmini B on 05.02.2009 due to heart attack. In order to prove that, the policy was obtained by suppressing pre-existing disease, the appellants have appointed the investigator. After the investigation, the Opposite Party came to know that, the DLI had not disclosed the material fact of suffering from Diabetes Mellitus and Myocardial Infraction at the proposal stage.

11. According to the appellant, the respondent/complainant himself has submitted the attending physician’s statement for death claim which was filled up by Dr. B.N. Suryanarayana, which clearly indicates that the DLI had been suffering from the Diabetes Mellitus for a period of 13 years and Myocardial Infraction for a period of 6 years prior to her death. It is further stated that, late Miss. Rukmini B was known case of Diabetes Mellitus and Myocardial Infraction i.e., before the proposal sign date and as per medical questionnaire certificate issued by Dr. Aswath N. Rao late Miss. Rukmini B had Heart problem for the past two years; as per the attending physician’s statement issued by Dr. B.N. Aswath N. Rao dated 17.02.2009 and the life assured was under treatment for the past 13 years. Opposite Parties in support of defence, filed the affidavit evidence of Sri. Anil Sharma, Manager (Claims) and produced the documents. But the appellant has not examined Dr.B.N. Suryanarayna or Aswath N Rao who stated to have been issued medical questionnaire certificate that she was a known case of Diabetes Mellitus and Myocardial Infraction and Heart problem.

12. The DF made an observation in para-8 of its order that, the proposal form was signed on 16.06.2008 and the policy was issued on 07.07.2008 whereas the life assured was admitted to Bangalore Hospital on 02.02.2009 with severe breathlessness and cough expectoration and died on 05.02.2009 in the said Hospital. The history sheet of the hospital shows that the patient was known diabetic, Old MI, HTN, GERD and also history of previous episodes of pulmonary, patient has been on regular treatment for all the above with regular follow up elsewhere. But the appellant failed to produce the medical records issued by the physician with regard to the previous medical treatment given to the deceased and even the physician has not filed the affidavit. The death summary issued by the Bangalore Hospital discloses that, the life assured is a known case of DM/IHD/HTN with past history of MIC and pulmonary edema. She was advised CABG for poor cardiac vascular status several years ago, but had refused. She was admitted to ICU and finally she died on 05.02.2009 at about 12.25 PM. Men may lie but not the documents placed on record. The documents maintained by the Bangalore Hospital clearly indicates that the deceased B.Rukmini is a known case of Diabetes Mellitus and Myocardial Infraction and known case of DM/IHD/HTN with past history of MIC and pulmonary edema. Therefore, considering the facts and circumstances of the case, the history furnished before the Bangalore Hospital that too at the time of admission of B. Rukmini that she was suffering from Diabetes Mellitus and Myocardial Infraction for the last 13 and 6 years respectively appears to be true and correct but, the DF has not considered this aspect of the matter and allowed the complaint without giving consideration with regard to the history furnished by the co

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mplainant. Therefore, we are of the opinion that, it is a pure case of suppression of pre-existing disease of B. Rukmini and obtained the policy for a huge sum of Rs. 12,00,000/-. Therefore, we hold that, the findings recorded by the DF is totally perverse and incorrect which lead to allow the complaint is liable to be set aside. Therefore, the impugned order passed by the DF is liable to be set aside. Since we are dismissing the appeal on merits, the question of consideration of I.A. Accordingly, we pass the following: ORDER Appeal is allowed. The order passed by the District Forum, Bangalore Urban dated 07.02.2011 in Complaint No.2507/2009 is hereby set aside. Accordingly the complaint before the DF is dismissed. The parties are directed to bear their own costs. The amount deposited by the appellant in this appeal shall be refunded to the appellant if a memo is filed to that effect.