PER:

Nidhi Verma, Member

1        The complainant has filed the present complaint under Section 34, 35, 36 and 38 of the Consumer Protection Act against the opposite parties on the allegations that the opposite party through its officials and agents have approached the complainant and his family and gave lucrative offers for having a life insurance policy i.e. “ABSLI Guaranteed Milestone Plan” and had told about the above policy to the complainant, the deceased and other family members and they were attracted to the offers made by the opposite party/ its agents. The family members of the complainant had proposed to assure the life of Harjinder Kaur w/o Hardev Singh, vide the Life Insurance Policy of the company that is “ABSLI Guaranteed Milestone Plan” and the company has issued the policy in favour of the deceased/ applicant Harjinder Kaur vide policy NO. 008551326 and the said policy was issued in the year 2021 and the modal premium yearly was fixed of Rs. 11,000/- and the complainant has paid the first premium of the policy vide receipt bearing Sr. No. 103152058 dated 11.8.2021. The basic sum assured/ death benefit was fixed of Rs. 19,03,845/- and the premium paying term was fixed up to 11 July 2033 and the complainant is nominee of the policy. Afterwards unluckily, the applicant Harjinder Kaur died a natural death on 23.8.2021 at village Bagrian, District Tarn Taran. The complainant had given the required information to the company regarding the death of the applicant Harjinder Kaur for obtaining the amount of sum assured on death under the policy. All the requisite details, that is death certificate, forms and information were provided to the officials of the opposite parties i.e. the company and the officials of the opposite parties i.e. the company kept mum for several months since the death of the applicant Harjinder Kaur and thereafter just in order to save their skin and money and above all to decline the genuine claim of the complainant, repudiated the claim in a highly arbitrary manner vide it’s correspondence dated 2.3.2022 on the basis of alleged incomplete, false and self interpreted medical record and others alleged documents/ submissions which had never seen the light of day and were never within the knowledge of the complainant as well as of the deceased and without showing any of the alleged documents to the complainant. All alleged facts mentioned by the company i.e. opposite party in the above said correspondence regarding the deceased life assured are false and based upon the baseless and frivolous documents, if any would produce by the company later on. The deceased life assured had given all the correct facts before purchasing of the policy but the agents of the company have got the signature of the applicant on all the documents without dictating the contents of the clauses to the applicant/ deceased as such there is no fault on part of the applicant in this respect. The alleged disease as mentioned by the insurance company is not such a fatal disease, which can cause death of a human being and moreover the applicant/ deceased was not suffered with any of the alleged disease. The authorised doctor of the insurance company had examined the insured, assessed the fitness and after complete satisfaction, then the policy was being issued and if the deceased life insured could have been suffered with such kind of serious disease then it must came to the knowledge of the insurance company at that time of issuing of the policy, no alleged terms and conditions have been ever dictated/ explained to the applicant / her representatives. The company has repudiated the claim of the complainant in a very unbusinesslike and arbitrary manner as the company had issued the policy to the deceased life assured after making thorough inquiries and required medical checkup and more over it was duty of the company to correct every required information by making investigation at the time of issuance of the policy. It is higher degree of deficiency in services on the part of the company, who has repudiated the claim of the complainant on the basis of the alleged submissions made in correspondence dated 2.3.2022.  The complainant has prayed that the opposite party may be directed to pay the total minimum death benefit under the policy i.e. the sum of Rs. 19,03,845-/ on account of loss and compensation with interest to the complainant. The opposite party be also directed to compensate the complainant for mental and physical harassment to the complainant suffered due to unfair trade practice and deficiencies in services to the tune of Rs. 20,000/-. The opposite party may also be directed to pay the amount of Rs. 10,000/- to the complainant by way of costs of litigation and counsel fee and pendent elite interest @12% P.A. from the date of filing of the complaint.  Alongwith the complaint, the complainant has placed on record affidavit of complainant Ex. C-1, Self attested copy of policy form Ex. C-2, Self attested copy of Policy details Ex. C-3, Self attested copy of Premium receipt Ex. C-4, Self attested copy of nominee details Ex. C-5, Self attested copy of death certificate Ex. C-6, Self attested copy of claim repudiation letter Ex. C-7, Self attested copy of Adhar Card of Harjinder Kaur Ex. C-8, Self attested copy of Pan Card of Harjinder Kaur Ex. C-9, Self attested copy of Adhar Card of Hardev Singh Ex. C-10.

2        Notice of this complaint was sent to the opposite party and opposite party appeared through counsel and filed written version by interalia pleadings that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this commission. The complainant has suppressed material facts from this commission and as such, the complaint is liable to be dismissed. The contract of insurance is based on rocky foundation of good faith i.e. principle of uberrimae fide. The policy is a legal contract between Life Assured and the Insurer and they both are bound by its terms and conditions. Under the contract of insurance, the Life Assured is under solemn obligation to disclose all the material fact to the insurer at the time of taking or revival of the insurance policy failing which the policy is rendered void, illegal and unenforceable. The policy under question ABSLI Guaranteed Milestone Plan bearing No. 008551326 was issued on 11.8.2021 by the company on the basis of the information provided by the Life Assured in the proposal form dated 8.8.2021. Since the Life Assured had fraudulently suppressed her past medical history in the proposal form, the company was well within its rights to repudiate the death claim preferred by the complainant. Since the opposite party has acted within the four corners of the statutory provisions, no case of deficiency in services can be said to have been, and as such, the present complaint is not maintainable before this commission. The complainant has tried to challenge the veracity of the decision of the company to repudiate the claim. The company has repudiated the claim under the said policy by a speaking order, which lists out the specific reasons for the decision. By no Stretch of imagination, the said decision can be brought under the umbrella of Deficiency in services. The complainant should approached the Civil Courts in order to challenge the veracity of the decision of the company to repudiate the claim. The repudiation of death claim under the subject policy was on the grounds of fraudulent suppression of material information and furnishing of false information in the proposal form. The Life Assured at the time of filling up the proposal form, did not disclose the correct information about her health and she deliberately and fraudulently failed to disclose that she was admitted at Josan Multispecialty Hospital from 19.7.2021 to 28.7.2021 (pre-policy) and was diagnosed with Diabetic Ketoacidosis. The certificate issued by Josan Multispecialty Hospital dated 21.1.2022 states that LA was admitted on 19.7.2021 and discharged on 28.7.2021 and was diagnosed with Diabetic Ketoacidosis. She was presented with the complaints of unconscious, Nausea with Vomiting and Shortness of Breach x 2 days. Further, Josan Multispecialty  Hospital’s History Sheet states LA was diagnosed with DKA & K/C/O DM2 since 3 years. Patient was admitted with complaints of unconsciousness, Nausea with Vomiting x 2 days, difficulty in breathing. Numbness in the hands with Generalized weakness x 2 months, weakness in upper limbs. The said medical history was much prior to the application for the policy which was not disclosed in the proposal form. From the stated circumstances, it is evident that the Life Assured had given wrong information and suppressed material facts from the Company, in order to fraudulently obtain the subject policy from the Company. The Life Assured passed away within merely 12 days from the date of commencement of the policy and as such, the company has rightly repudiated the claim preferred by the complainant. Insurance contracts are contracts based on “Utmost Good Faith”. As per the contract, the insurer is bound to honour the claim under the policy, provide that the Life Assured at the time of applying for the policy, had disclosed all relevant information accurately with regard to her health, habits, employment, etc. which are the basis on which the insurer decides to cover the said life and at what rates. Since the Life Assured did not perform her duty to disclose all material information truthfully and correctly, the contract of insurance between the Company and the Life Assured is a void contract. Life insurance claim payouts are made for the pool of funds of many customer of the services of an insurance company.  Hence, to honour an illegimate claim, would mean doing injustice to other genuine Policyholders and even entertaining the said case would be against the principles of natural justice and this would not be in the interest of customers of services of a life insurance company. The Life Assured had fraudulently concealed material facts which were necessary to be disclosed at the time of taking insurance, thereby rendering the contract of insurance void-ab-initio and inoperative, which is the reason for the claim being repudiated. The Life assured had not disclosed her medical advertises at the time of availing the policy despite being fully aware of the same and of her obligation to disclose the same in the proposal form. It is the duty of the proposer/ Life Assured, at the time of availing the policy, to disclose the material information, which is essential for the purpose of underwriting, during issuance of an insurance policy. It is well settled principle of law that person who fills up anything on a signed document has status of ‘amanuensis’ only and cannot be treated as author of document. At the time of scribing (without admitting) the person who scribes (amanuensis) is treated as representative of the company, thus after signing the document the person cannot release from signed document and lead anything which is contrary to terms stated in written document. Therefore, the present claim is devoid of substance and deserves dismissal. The complaint is devoid of material particulars and has been filed merely to harass and gain undue advantage and unjustified monies from the opposite party and hence the complaint deserves to be dismissed in limine. The complaint has been filed with ulterior motive and malafide intention, to cause harassment and prejudice to opposite party which is company of long standing and high repute and to extract money from it without just cause or valid reason. The proposal form is not merely a document to be signed and submitted for formality. It is the basis for the contract of insurance. It is the mode of providing information to the insurer so as to enable them to exercising a lawful right to evaluate the life before providing its services by covering the said life. The complainant has not acted in good faith with respect to the subject of this complaint and has approached this commission with  unclean hands, whereas it is a settled legal proposition that “One who seeks equity must come with clean hands” Under the purview of Section 45 of the Insurance Act, 1938, a life insurance policy can be called in question within 3 years on the ground of concealment of material facts. Thus under the scope of this section the opposite parties conducted a claims investigation on receiving an early claim. As per the Indian Contract Act 1872, one of the essential elements for a valid contract is free consent. When consent to an agreement is caused by fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused as the same is not a free consent. The complainant has failed to set up a nexus between the damages claimed in the present complaint and the damages actually suffered by him. The compensation claimed is arbitrary, without basis and is an abuse of the process of law. The complaint being frivolous and vexatious is liable to be dismissed under the Consumer Protection Act as the complainant has failed to make up a case of Deficiency of service as alleged or otherwise, within the meaning of the Consumer Protection Act, and hence, the present complaint is not maintainable on that score also. The complainant has concealed and suppressed material and relevant facts of the case. The complainant is guilty of suggestion vari supresso falsi. The complaint therefore deserves no fate other than outright dismissal. The Life Assured fraudulently, dishonestly and by misrepresentation obtained the policy on the basis of which the complainant is seeking death claim benefits. Since the subject policy is an outcome of fraud and misrepresentation, therefore, the claim of the complainant was rightly repudiated.  Late Ms. Harjinder Kaur had submitted a duly filled up proposal through OTP Verification for insurance on her life, the details of which are given below.

Copy of Proposal Form is Annexure Ex. OP-1/1. the Life assured has provided a declaration under the proposal form confirming that she has gone through and understood the benefit illustration and exclusion, if any, under the product as published by the Company that were handed over to her along with the proposal form, and that the contents of the proposal form have been fully explained to her and that fully she understood the significance of the proposed contract. The LA is an educated person i.e. Graduate and had signed declaration stating that -

I (we) hereby declare that the contents of this application and the contents of the simplified applications for insurance submitted as a part of this common application form have been fully explained to me including the significance of the proposed contract of insurance.

I (we) hereby declare, on my behalf and on behalf of all persons proposed to be insured, that the above statements, answers and/or particulars given by me are true and complete in all respects to the best of my knowledge and that I/We am/are authorized to propose on behalf of these other persons. The Life Assured had answered the following relevant questions in the proposal form in the negative, thereby indicating that she was medically fit and healthy on the date of application In the proposal form, the Life Assured, in reply to Q No. 13 C II, III (c) had replied in the negative For your reference, we are reproducing below the aforesaid questions and the reply thereto in the proposal for insurance

13. C. MEDICAL HISTORY

II       In the past five years, have you ever undergone any surgical operation at a hospital or clinic or undergone any investigations with other than normal or negative results (including X-rays, ECG, blood tests, biopsies etc.)? NO

III      Have you ever sought advice or suffered from any of the following?

 (c) Diabetes / elevated blood sugar or sugar in the urine?

NO

The Company, believing the information given by the Life Assured in the proposal form to be true and correct in all aspects, and as per the underwriting norms of the Company, issued life insurance policy ABSLI Guaranteed Milestone bearing number 008551326 on 11.08.2021 on the basis of the information provided by the Life Assured in the proposal form dated 8.8.2021. The Terms and conditions are annexed herewith as Annexure/Exhibit OP - 1/2.

In accordance to Regulation 8(1) and 10(1) of the Insurance Regulatory and Development Authority (Protection of Policy Holder's Interest) Regulation, 2017, a copy of the proposal form duly signed by the Life Assured was sent to the Life Assured along with the policy documents thereby giving an opportunity to the Life Assured to re-examine the replies recorded in the proposal form and get the details rectified in case of any discrepancy (ies) in the proposal form. Further, the Life Assured was duly informed vide the policy terms and conditions, that in case he is not satisfied with the policy or the terms and conditions, then he had the option to return/cancel the policy within the Free Look Period, i.e. within 15 days from the date of receipt of policy documents. The Life Assured retained the policy documents and did not raise any objection towards the policy or with respect to the material facts stated in the proposal form. Thereafter, the Complainant lodged death claim intimation which was received by the Company on 29.12.2021, stating that the Life Assured had passed away on 23.8.2021, which is within a mere 12 DAYS from the date of commencement of the subject policy, and hence, the Company proceeded to investigate the said claim, as permitted by the IRDA Protection of Policyholders' Interests) Regulations. A copy of the death claim intimation is annexed herewith as Annexure/Exhibit OP 1/3. The said claim was duly investigated by the Company on receiving a death claim intimation and investigations revealed that Life Assured at the time of filling up the proposal form, did not disclose correct information about her health and deliberately and fraudulently failed to disclose that she was admitted at Josan Multispecialty Hospital from 19.07.2021 to 28.07.2021 (pre-policy) and was diagnosed with Diabetic Ketoacidosis. The Certificate issued by Josan Multispecialty Hospital dated 21/01/2022 states that LA was admitted on 19.07.2021 & discharged on 28.07.2021 & was diagnosed with Diabetic Ketoacidosis. She was presented with the complaints of Unconscious, Nausea with Vomiting & shortness of Breath x 2 days. Further, Josan Multispecialty Hospital's History Sheet states LA was diagnosed with DKA, & K/C/O DM2 since 3 years. Patient was admitted with complaints of unconsciousness, Nausea with Vomiting x 2 days, difficulty in breathing, Numbness in the hands with Generalized weakness x 2 months, weakness in upper limbs. The said medical history was much prior to the application for the policy which was not disclosed in the proposal form. From the stated circumstances, it is evident that the Life Assured had given wrong information and suppressed material facts from the Company, in order to fraudulently obtain the subject policy from the Company. Copy of the Investigation and the medical records of the Life Assured is enclosed herewith as Annexure/Exhibit OP 1/4 and OP-1/5. The Life Assured in the proposal form had deliberately and fraudulently given wrong answers to all the relevant questions regarding her health and prior medical history, despite being aware of the same, and despite being aware of her obligation to disclose the same in the proposal form. A mere perusal of the proposal form clearly suggests the malafide act on the part of the Life Assured. The Company relied on and believed that the information given by the Life Assured in the proposal form was true and correct in all aspects. Had the Company known that the Life Assured had not disclosed her correct health and lifestyle details in the proposal form, then the Company would have declined the proposal upfront. Insurance is a contract of utmost good faith and from the documents on record it is clearly evident that there has been a clear breach of this by the Life Assured. The company has been induced and misled by the Life Assured to issue the policy by fraudulently suppressing material facts. In view of the above, the company had vide letter dated 2.3.2021 repudiated the claim of the complainant by explaining the reason behind the same. Copy of letter dated 2.3.2021 is Ex. OP1/6. By fraudulently concealing material facts in the proposal form, the company was denied of the opportunity to correctly assess the risk under the proposal. It is the primary duty of the Life Assured to disclose all the facts truly and correctly in the proposal form. The company was led to issue the policy by fraudulent suppression of material facts. Thus, it is reiterated that the company was misled to issue the policy by fraudulent suppression of material facts, and hence, the complainant’s claim has been rightly rejected on the basis of documentary evidence of fraudulent suppression of material facts by the Life Assured in the Proposal for insurance. The life assured had also put her signature on the declaration in the proposal form stating that she has understood the nature of questions and importance of disclosing correctly all material information. Despite this the Life Assured suppressed a material fact which is nothing but fraud in order to gain unlawfully at the expense of the opposite party. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same.  Alongwith written version, the opposite party has placed on record affidavit of Kshama Priyadarshini Ex. RW1/A alongwith documents Ex. R-1 to R-6.

3        We have heard the Ld. counsel for the parties and have carefully gone through the record.

4        In the present case, the company has issued the policy in favour of the deceased Harjinder Kaur vide policy No. 008551326 and the said policy was issued in the year 2021 and the premium yearly was fixed of Rs.11000/- unluckily the applicant Harjinder Kaur died a natural death on 23^rd Aug 2021 at village Bagrian ,Tarn Taran . The complainant had given the required information to the company regarding the death of the applicant for obtaining the amount of sum assured on death under the policy. The company kept mum for several months since the death of the applicant and repudiated the claim in a highly arbitrary manner vide it’s correspondence dated 2^nd March 2022. The deceased life assured had given all the correct facts before purchasing of the policy but the agent of the company have got the signature of the applicant on all the documents without dictating the contents of all clauses to the applicant.

5        O.P stated in their written version that the said claim was duly investigated by the company on receiving a death claim intimation and investigation revealed that the life assured at the time of filling up the proposal form, did not disclose the correct information about her health and she deliberately and fraudulently failed to disclose that she was admitted at Josan Multi-specialty Hospital from 19.07.2021 to 28.07.2021 (pre policy) was diagnosed with diabetic Ketoacidosis. She was presented with the complaints of unconscious, nausea ,with vomiting and shortness of breath ×2 days. Further, Josan Multi-specialty Hospital history sheet states LA was diagnosed with DKA, K/C/O DM2 since 3 years . The said medical history was much prior to the application for the policy which was not disclosed in the proposal form . It is evident that the life assured has given wrong information and suppressed material facts from the company in order to fraudulently obtain the subject policy from the company.  The life assured passed away within merely 12 days from the date of commencement of the policy and as such the company has rightly repudiated the claim preferred by the complainant.

6        As a result of the above discussion we are of the considered view that there is no dispute regarding the insurance of the LA from the Aditya Birla Sun Life . Harjinder Kaur died on 23.08.2021 and the complainant immediately lodged the claim for obtaining the insurance claim of the above mentioned insurance policy and also all the required documents were supplied to the O.P by the complainant. On other hand ,O.P repudiated the claim of the complainant with remarks that Harjinder Kaur was suffering from Diabetic Ketoacidosis and applicant was under treatment for the same prior to proposal for insurance (Ex. OP-1/6) . Hence the disease was present at the time of taking the policy . Now the question arises that how the opposite party have reached upon the conclusion that late Harjinder Kaur was suffering from diabetic ketoacidosis.  The opposite party placed on record the certificate of Johnson multi specialist hospital, Amritsar on dated 21/01/22 (Ex-1/5) given his opinion which is reproduced as under :-

“Patient name Mrs. harjinder Kaur wife of Mr. Hardeep Singh 26 years old female admitted in the hospital on 19^th July 2021 at 4:00 PM diagnosed with diabetic ketoacidosis chief complaints of the patient are—unconscious , nausea, shortness of breath

And discharged from the hospital on 28^th July 2021 patient was admitted under ayushmann card for treatment in the hospital.”

It is pertinent to mention here that opposite party has failed to provide any cogent evidence or document that from where Dr.Sameer of Josan Multi-speciality hospital came to know or observed that the patient had diabetic Ketoacidosis. Further, no affidavit has been placed on record of Dr. Sameer . It is well settled law that contents of controversial copy of certificate are not pre-se admission under section 13(4) of Consumer Protection Act 1986 and it is also well settled law that contents of certificate should be proved by way of affidavit of person who had signed documentary certificate. In the present case no affidavit has been placed on record of Dr. Sameer of Josan Multi-specialty hospital.  Reliance in this connection has Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the above report in the absence of which the said certificate has little evidentiary value.  Furthermore, it is usual with the Insurance company to show all types of green pastures to the customer at the time of selling insurance policies and when it comes to payment of the insurance claim they invent all sort of excuses to delay the claim or to  repudiate the claim . In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of DharmendraGoel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.UshaYadav& Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.        The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

Further, the declaration made by the insured in the proposal form all the questions asked about the medical history was marked as ‘No’ by the insured and as per investigator report IO came to know that the LA was suffering from Diabetic Ketoacidosis and was admitted at Josan Multi-speciality hospital, Amritsar on dated 19.07.2021 to 28.07.2021. The opposite party has also taken the objection in the written version that the insured passed away within merely 12 days from the date of commencement of the policy and as such the company has rightly repudiated the claim preferred by the complainant. But we are not agreed with the same because the insured died natural death and diabetes is not a fatal disease which can cause death of a human being.    Moreover, as per the complainant, LA Harjinder Kaur had given all the correct facts before purchasing of the policy but the agents of the company have got the signature of the applicant on all the documents without dictating the contents of the clauses to the applicant as such there is no fault on part of the applicant in this respect. It is further pertinent to mention here that the authorized Doctor of the insurance company had examined the insured , assessed the fitness and after complete satisfaction then the policy was issued and if the deceased life insured could have been suffered with such kind of serious disease then it must came to the knowledge of the insurance company at that time. However, O.P also appointed Ganpati associate as investigator. O.P has placed on record photostat copy of report of Ganpati associate. O.P did not file affidavit of investigator in order to prove the contents of investigation report.  It is held that Bajaj Allianz Life Insurance Co . Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A No.117/2017) documents could be proved by way of affidavit of person who had signed the document. Hence adverse inference is drawn against the Ops for not filing the affidavit of the investigator – Inside Track Service in the present matter. In the present complaint the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the above report in the absence of which the said certificate has little evidentiary value. This Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to rely upon unproved medical certificate and investigation reports placed on record.

7        We have also gone through some judicial pronouncements relevant to the present case. In case M/s ICICI Prudential Life Insurance company Ltd. Vs Veena Sharma & Others 2014(4) CLT 507(NC), the Hon’ble National Commission held that it was for the insurance company to prove that complainant was suffering from pre-existing disease and has knowingly failed to disclose the same. The Hon’ble National Commission has also relied upon a case decided by the Hon’ble Supreme Court titled Balwinder Kaur Vs Life Insurance Corporation of India, Civil Appeal No. 7969 of 2010 decided on 13.9.2010, wherein it was held that the onus to prove that deceased had obtained policy by suppressing the material facts relating to his illness, was on the corporation at the time of taking policy and he deliberately suppressed the facts.

8        The claim of the complainant has been repudiated by the opposite party vide Ex. C-7 on one of ground of suppression material facts regarding Diabetes. The diabetes is not a material disease, therefore, non disclosure thereof is not a concealment. We draw support from Life Insurance Corporation of India Vs. Sushma Sharma from II (2008) CPJ 213 wherein Hon'ble State Commission has held as under:-

“So far as hypertension and diabetes is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer 14 from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium. If these diseases had been material Nand Lal insured would not have survived for 10 years after he started suffering from these medical problems. Like hypertension ,diabetes has also infected a majority of the Indian population but the people who suffer from diabetes and continue managing it under the medical advice, they survive for number of years and none of these diseases is fatal and as discussed above, if these diseases had been material deceased Nand Lal insured would not have survived for 10 years.”.

We further draw support from Life Insurance Corporation of India Vs. Sudha Jain II (2007) CPJ 452 wherein Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi has held that maladies like diabetes, hypertensions being normal wear and tear of life, cannot be termed as concealment of pre-existing disease.  Moreover, the opposite party has failed to establish the relation between fractured neck treatment and DM Type II and HTN. The complainant has not suffered and treated for DM Type and HTN.

9        Moreover, to prove their version of pre existing disease, the opposite party has placed on record documents i.e. Josan Multispeciality Hospital Amritsar, history sheet of patient, Nursing Care Plan, Progress report i.e. Ex. OP1/5. But the said record produced by the opposite party cannot be read in evidence. In this regard, a reference can be made to the judgment of the Hon'ble National Commission in Revision Petition No. 200 of 2007 "Mr. Satinder Singh versus National Insurance Co. Ltd." decided on 24.1.2011 wherein it has been observed that "recording of history of patient in the above stated manner does not become a substantiate piece of evidence and convincing evidence be brought on record that complainant was aware of preexisting disease." Further, it has been observed by the Hon'ble National Commission in the III 2014 CPJ 340 (NC) "New India Assurance Company Limited through its duly Constituted Attorney, Manager versus Rakesh Kumar" that people can live months/years without knowing the disease and it is diagnosed accidentally after routine checkup and on that ground repudiation is not justified. Further it has been observed by the Hon'ble National Commission in its judgment IV (2008) CPJ 89 (NC) "Life Insurance Corporation of India & Ors. Versus Kunari Devi" that history recorded in the hospital bed head ticket is not to be taken as evidence as Doctor recording history not examined and suppression of disease not proved. In the present case, except the medical record of the present ailment, Ops have not placed on the record any independent evidence that the insured had the knowledge or that he had been taking the treatment of the disease, in question, before purchasing this policy and in the absence of any specific evidence on the record how the disease, if any, which the insured does not have the knowledge can be termed as pre-existing disease. Therefore, we are of the opinion that repudiation of the claim is not justified. The opposti e party has also fialed to establish on record the nexus between disease and death.

10      In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainant and against the Opposite Party. The opposite Party is directed to make the payment of Rs. 19,03,845 to the complainant. The complainant has been harassed by the opposite party unnecessarily for a long time. The complainant is also entitled to Rs. 50,000/- as compensation on account of harassment and mental agony and Rs 20,000/- as litigation expenses. Opposite Party is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainants are entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation.  Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.

Announced in Open Commission

30.08.2024