Adv.for the complainant-Sri P.K.Mishra & Associates.
Adv.for the O.Ps 1 & 2 -Sri A.K.Tripathy & Associates.
Adv.for the O.P.No.3 -Sri B.S.Satpathy.
Date of filing of the case-26.06.2014.
Date of order -19.08.2015
JUDGMENT.
Sri P.Samantara, President.
1, In the matter of an application u/s.12 of the C.P.Act,1986 filed by the complainant alleging deficiency in service against the opposite parties.
2. In brief, the complainant is the husband and nominee under Insurance policy contract No.50551395 procured on dt.30.11.2012. The policy introduced by the name-Reliance cash flow plan extending for terms 16 years.
3. The complainant averred, the insured demised on dt.20.01.2013 affected with Pneumonia. Post demise of the insured, the death claim settlement sought in furnishment death certificate, medical investigation report, medical certificate and other documents as sought by the O.P.1 on letter dt.02.05.2013.
4. It is also averred post submission of documents. The O.Ps prefer to ensure an investigation on post health condition of the insured procuring information from local doctor, Asha Karmi and Anganwadi Karmi.
5. The petitioner also submitted, the employed investigator submitted one report declaring the insured died of heart disease, that she was suffering since last 4 years which is suppressed one for which the claim was repudiated under the policy-50551395 in terms of Sec.45 of the Insurance Act 1938. So according to our policy conditions, all claim benefits shall cease.
6. Stating the O.P has not yet settled the said death claim and adopting dilatory tactics, indifferent attitude suffering mentally which amounts to deficiency of service. Praying the petitioner shall be prejudiced unless direct to settle the claim and pay the compensation for non rendering service under the policy.
7. Relied on policy schedule, First premium receipt, customer identity proof, death certificate, claim form-B, letter dt.02.05.2013 & dt.30.08.2013, E-letters in photo copy and affidavit, later filed written note of argument.
8. Pursuant to the notice, the O.P 1 and 2 appeared and filed the version admitting O.Ps marketing various insurance policies related to Health and life and the complainant is the nominee of the deceased assured.
9. They also made submission, the deceased life assured (DLA) purchased the policy of Reliance cash Flow plan understanding all the terms and conditions and assured of Rs 2,00,000/- and it is pertinent to mention that the DLA obtained the policy on dt.30.11.2012 and died on dt.20.01.2013 less than in two months, stating as per the settled law where there is an early claim itself is a good corroborative evidence to prove mis-representation, non disclosure of material facts or contemplation of death.
10. Further averring it is agreed by the policy holder that if any untrue statement be contended in the proposal form, the policy contract shall null and void and money which was paid in respect thereof shall stands forfeited to the Insurance company. The DLA has said in the proposal form that the query at question No.29 and 31 was “No”.
11, The O.Ps also asserts DLA who laws suffering from a critical illness like heart disease had undergone treatment at CHC Agalpur,Bolangir. Such suppression amounts to serious mis-representation of material facts in violation of the terms and conditions of the Insurance policy.
12. So submitting that due to suppression of material facts, the complainant is not entitled to relief under the policy same being communicated to the complainant with a claim review slip.
13, The O.Ps have not committed any unfair trade practice nor any deficiency of service. The complaint is concocted, frivolous and not sustainable one, so the case is liable to be dismissed with cost.
14, Relied duplicate policy schedule in photo copy, Annexure-I, Medical certificate, CHC Agalpur in photo copy, letter of repudiation in Annexure-III.
15, Heard the learned counsels at both lend and vehement arguments of the counsels. Perused the document in case record. We have also gone through the submission in extensive length.
16. From the record in outset we found the core question that revolves is legality of repudiation and the settlement is entertainable or refuted one in the back drop of suppression of disease.
17. The petitioner advanced post demise of the insured or DLA, the O.Ps employed one investigator to assess the authenticity and bonafideness involved in the case and pleaded on the basis of same, the settlement has been repudiated. On perusal we do not find any investigation report submitted at O.Ps end .But it is a fact, the investigator visited the village and CHC including meeting the Asha Karmi and Anganwadi Worker. Even if that be the position, then it is not backed by any law. Our same opinion is supported by the decision –National Insurance Co. Ltd Vs. Ajay Kanwar, 2008(2) CLT 402 (NC), in which it is held- That the Insurance Act permits appointment of surveyors and they are licensed by the I.R.D.A.-Appointment of an investigator is neither backed by any statutenor are they licensed by any regulatory authority, so employing investigator is beyond purview of law.
18. The O.Ps advanced, the DLA obtained the policy on dt.30.11.2012 and died on 20.01.2013 is case of close proximity one and shrouded in mystery as because the investigation percolates that the insured (Sabita Patel) was suffering from heart disease since 4 years and under treatment. On the noted stand no document has been placed, the document placed before the forum under annexure-2, is a photo copy and not a original one and the text’s last line appears to have been incorporated in post issuance. Again suffering of cardiac problem is not a Childs play, it requires thorough and extensive documentary evidence of the years to taken into account. Our same view is based on the authority in “ The New India Assurance Company Vs Devananda Urf Tejumal Ahuja & Others in which it is held- In absence of any treatment paper, no court can hold that there was some earlier pre-existing disease- 2013(1) CPR 20 (Chhatisgarh).
19. The other contention of the O.Ps are that the DLA in the proposal form to our query in Question No.29 and Question-31, has answered No. which corroborate that the complainant taken the path of misrepresentation, non-disclosure of material facts or contemplation of death.
20. On the issue, the claim form B is endorsed by the CHC, Agalpur Medical Officer, who admitted the cause of death is Pneumonia suffering of fever chest pain & breathlessness undergoing for 4 days, so the cause of death can’t be two manifold at a time. The issuance of medical certificate and the issuer’s professional wit appears to have at stake.
21. We have taken a view that unless and until a person conceals the factum of having been hospitalized for treatment of a particular disease or under goes any operation in the near proximity of the policy say within a year or two before he cannot be accused of concealing the factum of “pre-existing disease”. Even some times a person suffers such a massive fatal heart attack in spite of his having never been hospitalized or received treatment for such disease or any other disease for which he was hospitalized.
22. What is relevant is to disclose about certain facts particularly pertaining to the state of health of insured that is whether at the time of taking policy or a year before he has suffering from any disease which disentitled him from obtaining the policy or not.
23. There is no doubt that every insured is supposed to give the information as sought through the Insurance Policy but at the same time one can not be oblivious of the fact that the insurer also subjects the insured to medical tests to find out the state of health of the insured for deciding his entitlement to obtain the insurance policy. The insurer issues the same after obtaining certificate from the doctor on its panel that the insured possess sound and good health and is entitled for life insurance policy.
24. We have also taken a view that insured is not supposed disclose about the treatment or the disease which he had suffered 5 years or 10 years before and had been recovered and also leading a normal healthy life. In the circumstances such a disease cease to be pre-existing or existing at the time of obtaining the policy.
25. Our aforesaid view is supported by decisions:-
(i)M/s. LIC of India Vs Dharmesh Kumar -2010(2) CPR 361- Held- Unless and until a person conceals the factum of having been hospitalized for treatment of a particular disease or undergoes any operation in the near proximity of the policy say within a year or two before he can not be accused of concealing the factum of “pre-existing” disease.
(ii)LIC of India Vs Smt. Hukum devi- 2010(2) CPR 342- Held- Unless and until the Insured is hospitalized or operated upon, in the near proximity of obtaining the policy, his claim should not be repudiated unless he has concealed such hospitalization or operation.
26. Thus in the present case no document has been placed in contribution to that the insured is suffering a heart disease for prolong four years, that to under CHC Agalpur hospital for the pre-existing disease so we reject the advancement and also the mandate of section-45 is not applicable in violation breach of good faith and willful concealment as no such material was found.
27. In view of the aforesaid reasons that persuade us to ponder, the rebuttal of the O.Ps is misconceived, pre-posterors, not pre-potent and pre-judged one and the case abounds in merit.
Hence ordered;
ORDER.
We hereby direct the O.P.1 and O.P.2 to pay the petitioner the assured sum of Rs 2,00,000/- ( Rupees Two Lakhs) only, under the policy along with @ 6% interest per annum from date application , within forty five days of this order failing which @ 9% interest per annum will accrue on the same till realization and also to pay a compensation of Rs 6,000/-( Rupees six thousand) only, for harassment and mental agony inclusive of litigation expenses within same time frame.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 19TH DAY OF AUGUST 2014.
I agree.
Sd/- Sd/-
( G.K.Rath) (P.Samantara)
MEMBER. PRESIDENT.
