State Consumer Disputes Redressal Commission
Regional Manager & Another vs M.V.Thilak on 17 June, 2011
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE. DATED: 16/06/2011 PRESENT THE HONBLE MR.JUSTICE K.RAMANNA : PRESIDENT SMT.RAMA ANANTH : MEMBER Appeal No. 4533/2010 1. Regional Manager Bajaj Allianz Life Insurance Co. ltd., II Floor, Akshaya Commercial Complex, No.26, Victoria Road, Bangalore 560 017. 2. The Manager, Bajaj Allianz Life Insurance Co. Ltd., Dwaraka Residency, Opp. to Basaveshwara ground, B.H.Road, Tumkur 572 102. Rep. by Mr.Anup Kumar Verma, State Operations Manager. (By Shri/Smt Geetha Raj ) .. Opposite Party before the DF .....Appellant/s -Versus- 1. M.V.Thilak S/o. M.T.Vivekananda, Resident of Mavinakere Village, Kenkere Post, Arasikere Taluk, Hassan District. (By Shri/Smt Kiran Kumar H.S) . Complainant before the DF .....Respondent/s ORDER
HONBLE JUSTICE K.RAMANNA : PRESIDENT This appeal is filed by the Ops 1 and 2 against the order dated 31.8.2010 passed by the DF, Tumkur in complaint No.84/10 whereby and where under the DF allowed the complaint filed by the respondent directing the appellants 1 and 2 to pay a sum of Rs.1,80,000/- either jointly or severally with costs of Rs.1000/- and to pay the same within 8 weeks failing which the appellants are directed to pay punitive damages of Rs.25,000/- out of which Rs.10,000/- shall be deposited to the Consumer Legal Aid account and to pay the remaining amount to the respondent.
2. The appellant also files an application under Section 5 of the Limitation Act to condone the delay of 21 days caused supported by an affidavit of the Divisional Manager of the appellant explaining the delay.
3. We have heard the learned counsel for both the parties and perused the records.
The point for determination whether:
a) the appellants have shown reasonable cause which prevented them to prefer an appeal after the statutory period;
b) the District Forum is justified in passing the impugned order under challenge?
4. Point No.1:- No doubt the respondent herein filed the complaint against the appellant / Ops before the DF which came to be allowed and the aggrieved party is expected to prefer an appeal within the statutory period of 30 days. But in the instant case, the appeal filed by the Ops on 27.10.2010 that is after lapse of 21 days. The affidavit of the Manager of the appellant discloses that after passing the impugned order they are expected to get the opinion of the advocate on record and thereafter get the necessary approval from the higher authorities to prefer an appeal. Therefore there is a delay. Such delay is bound to occur in the case of Corporation and other Government Agencies.
Therefore, we have no hesitation to accept the reasons assigned by the appellants to condone the delay. Hence we hold that the delay has been explained satisfactorily. IA-1 is allowed. Delay is condoned.
5. Point No.2:- It is seen that the respondent had submitted a proposal for obtaining insurance coverage to the appellants on 11.3.2008 under Insurance Policy scheme. So acting in good faith, the appellants accepted the proposal form and the policy came to be issued. The date of commencing of the policy being from 12.3.2008 and the sum assured is Rs.1,80,000/-. During the subsistence of the policy, the paternal uncle Sachidananda died. But the respondent being a son and legal heir of the deceased policy holder submitted a claim form along with death certificate to the appellants for the amount covered under the policy which has been repudiated by the appellants. Therefore, the respondent filed the complant before the DF under Section 12 of the CP Act.
6. After receipt of the notice, the respondent / OP appeared through counsel and filed the version repudiating the claim on the ground that the p olicy has been obtained by the deceased Sachidananda by suppressing the pre existing disease that is the answers given to the questionnaire contained in the proposal form stated in negative. The sum assured is Rs.2,00,000/-. Therefore, after considering the oral and documentary evidence, the complaint filed by the respondent came to be allowed. Therefore Ops filed this appeal.
7. It is argued by the learned counsel for the appellant that the impugned order under challenge is totally perverse. While arguing the case, the learned counsel for the appellant drawn the attention of this Commission to page 6 of the impugned order passed by the DF.
According to the appellant though the DF opined that non disclosure of those diseases by the life assured at the time of taking the policy will not prove fatal to the claim of the complainant.
It means that the DF indirectly accepted the contention taken by the appellants / Ops that the deceased has not disclosed the pre existing disease. The Ops got marked the documents as Exs.R1 to R8 from which it is clear that the deceased was taking treatment for diabetic and hyper tension.
8. From the document Ex.R-4 produced by the appellant it is seen that the deceased died due to heart attack. Of course, the DF though holds that at the time of submitting the proposal form for issuance of insurance policy the answers given as against column No.12 of the questionnaire there was no history of diabetic heart or kidney disease.
When once the DF accepts that the deceased policy holder has not disclosed his pre existing disease namely diabetic and blood pressure the same amounts to suppression of pre existing disease.
The reasons for death may be due to heart attack. The root cause for the heart attack cannot be over ruled and that the deceased was suffering from pre existing disease like diabetics and hyper tension.
9. When once the DF accepts the contention of the appellants / Ops the DF also ought to have given its finding that the deceased obtained the policy by suppressing the material facts. The deceased had taken the policy with sole intention that his legal heir should be benefited after his death. Therefore, considering the facts and circumstances and the manner in which the deceased had obtained the policy by suppressing the very existing disease and died within one and half years.
10. The DF by referring the decision rendered by the Honorable Supreme Court reported in AIR 2010 Orissa 93 come to erroneous conclusion in allowing the complaint. In that decision the insured died due to heart failure even though he was suffering from minor ailments of casual nature like back pain prior to obtaining the policy. Since under Section 45 of the Insurance Act 1938 the back pain suffered by the policy holder is the case of a minor ailment.
The death due to heart failure cannot be made applicable to the facts on hand in allowing the complaint filed by the respondent. Therefore, we are of the considered view that the impugned order under challenge is totally perverse, illegal and incorrect and therefore the same is liable to be set aside. Hence we pass the following:
O R D E R Appeal is allowed. Impugned order passed by the District Forum, Tumkur in Complaint No.84/2010 is set aside. The complaint filed by the complainant before the DF is dismissed.
The amount deposited by the appellants / Ops in this appeal shall be refunded to the appellants if a memo is filed to that effect.
PRESIDENT MEMBER Rhr* *