BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 619 of 2022
Date of Institution : 07.10.2022
Date of Decision : 24.04.2024
Abhishek Jain son of Sh. Som Parkash Jain, resident of House No. 1369, Ward No.5, Rania, Sirsa.
……Complainant.
Versus.
1. Aditya Birla Sun Life Insurance Company Limited, through its Manager/ authorized person, Ground Floor, C/O Parmeshwar Service Station, adjacent to BPCL Pump, Dabwali Road, Sirsa.
2. Aditya Birla Sun Life Insurance Company Limited, through its Chief Manager/ authorized person, One Indiabulls Centre, Tower 1, 16th Floor, Jupiter Mill Compound, 841, Senapati Bapat Marg, Elphinstone Road, Mumbai 400013.
…….Opposite Parties.
Complaint under the provisions of the Consumer Protection Act.
Before: SH. PADAM SINGH THAKUR……. PRESIDENT
SMT.SUKHDEEP KAUR……………MEMBER.
Present: Smt. Pushpa Mehta, Advocate for the complainant.
Sh. M.K. Singla, Advocate for opposite parties.
ORDER
The complainant has filed the present complaint under the provisions of the Consumer Protection Act against the opposite parties (hereinafter referred as Ops).
2. In brief, the case of complainant is that mother of complainant Mrs. Veena Jain had availed a life insurance policy on 31.12.2018 under the plan ABSLI Guaranteed Milestone Plan vide policy no. 007745937 for which annual premium of Rs.1,56,750/- was to be paid for a term of 12 years. The policy was purchased through advisor of the company namely Ms. Shelly Bansal and complainant being son is nominee of the life insured in the said policy. That mother of complainant expired on 17.05.2021 due to heart attack and accordingly claim qua her death was lodged with the ops on 08.06.2021 by the complainant but the company strangely has repudiated the claim on 04.10.2021 on the flimsy ground of concealment of material facts and information by the insured with a malafide intent to deceive the company. It is further averred that being aggrieved with the response of the ops, the complainant moved a complaint to the office of Ombudsman on 24.02.2022 but his application was rejected on the same ground on 26.05.2022 without inquiry of the matter in detail and without providing proper opportunity of hearing. The ops are legally bound to make the due payment of insurance amount with interest and repudiation dated 04.10.2021 is unjust, illegitimate, misleading as well as inappropriate and thus said repudiation is liable to be quashed on the following grounds:-
(A) In the proposal form at point no.13 no relevant information qua alleged previous ailment was kept concealed rather the advisor was duly informed about each and every inquiry put by her during the initial stage, after availing the required information, the proposal form was filled up by the advisor. On behalf of mother of complainant nothing was withheld regarding her medical detail, alleged hospital record referred by the op company showing her medical history is a managed document which has no nexus with the death of the insured and is just managed to make basis of escaping from legal liability to pay the assured sum as per terms of the policy and to repudiate the genuine claim of complainant. Even otherwise it is settled proposition of law that insurer cannot be permitted to raise such vague plea after such a long period.
(B) That mother of complainant availed insurance policy to the tune of Rs.22,50,000/- being attracted by the publicity and advertisement through various modes coupled with assurance of the advisor, said advisor obtained required signatures on the format and she was asked to appear before paneled hospital of the ops named Sanjivani Hospital, Sirsa for conducting complete medical examination including ECG, fasting blood sugar and stripe urine test etc. as pre requisite significant condition of the policy. Accordingly after being completely satisfied on consideration with doctor’s report alongwith lab report by the op company the policy in question was confirmed only. The medical examination report was not even provided to the mother of complainant, said medical record expressing her accurate health status was made part of insurance policy and copy now availed through written request is being annexed as Annexure B.
(C) That another aspect being raised as an objection by insurer that policy was applied for via online application is totally untrue as proposal form makes it more clear that entire process was completed by Ms. Shelly Bansal advisor duly indicated on page 2 of the policy. In this way op cannot be permitted to breathe hot and cold at same moment. It was for the advisor of the company to dispatch the relevant application and other connected record via online or any other mode.
(D) That Op company cannot be permitted to raise such vague objections regarding concealment and non disclosure of material facts qua the policy holder’s sufferings from diabetes, hypertension and brain surgery. As alleged ailments have no concern with the insured, the insurer has miserably failed to tender any substantial proof and record to justify the repudiation before Ombudsman, thus proceedings and conclusion of Ombudsman dated 26.05.2022 is discard able being biased and non speaking one. In the instant case claim was lodged by furnishing the information of death on the basis of factual and natural manner as insured got expired on account of sudden heart failure on 17.05.2021 whereas the policy was issued on 31.12.2018, thus her death is nowhere concerned with any previous disease.
3. It is further averred that due to above mentioned act and conduct of the ops, the complainant has been facing harassment and is lurking around from pillar to post to get due benefits under the policy in question and the ops have adopted unfair trade practice by repudiating the genuine claim of complainant. Hence, this complaint seeking direction to the ops to pay insurance sum as per terms of the policy and to pay compensation to the tune of Rs. one lac and litigation expenses of Rs.22,000/-.
4. On notice, ops appeared and filed written statement taking certain preliminary objections that complaint is not maintainable as there is non disclosure of material facts so as to decide the present complaint; that this Commission has no jurisdiction to entertain the present complaint and the insurance contract which culminated into the insurance cover forming subject matter of the complaint is invalid, void, inoperative and unenforceable, therefore, present complaint is liable to be dismissed; that subject policy has been obtained fraudulently, dishonestly and by misrepresentation. It is further submitted that life assured Smt. Veena Jain now deceased at the time of entering into the proposal form had represented to the ops’ company with regard to her good health status and had represented that she was fit and fine and was not suffering from any disease nor she remained hospitalized for any kind of treatment during the last five years. The life assured submitted the duly filled in and signed application form for purchase of “BSLI guaranteed Milestone”. In the said plan basic premium was Rs.1,50,000/- semi annually and sum assured of Rs.15,90,784.87. The ops’ company believing and considering the declarations as made by the life assured to be true and correct issued the insurance policy dated 31.12.2018. It is further submitted that present complaint is an afterthought and has only been filed with the ulterior motive to harass and humiliate the answering op, hence present complaint deserves to be dismissed with special costs. That the fraudulent intention of the life assured came into picture after the ops’ company were in receipt of death claim intimation dated 08.06.2021. As per the death claim intimation, the LA was stated to be passed away on dated 17.05.2021. Being an early, claim the ops’ company immediately processed the case for conducting necessary investigation. During the course of investigation, the fraudulent intention of the life assured came into light and it was revealed that the life assured by making false declaration has misrepresented with regard to her true state of health despite the fact that the life assured much prior to entering into the application form was chronically ill and was suffering from Diabetes Mellitus with hypertension 3 year and 15 year back and had already undergone brain surgery much prior to purchase of present policy. It is further submitted that this was deliberate concealment and non disclosure on part of LA and she was very well within the knowledge that she could not survive for a long time on account of her deteriorating health condition and the LA in collusion with the complainant has managed to purchase the present policy by making a false declaration with regard to her true state of health and had answered in negative to the questionnaire related to health condition in the proposal form. That had the correct information regarding her health been disclosed in the declaration of good health, the answering ops would not have issued the policy or life assured would have been subjected to detailed underwriting procedure. The ops’ company after being appraised about the said fraud, does not found it feasible to accept the death claim so submitted by the complainant and accordingly the same stands repudiated on the ground of non disclosure of material facts and correct status of health vide repudiation letter dated 04.10.2021. It is further submitted that said intentional non disclosure of the material facts of the pre-existing disease of life assured goes to the root of the matter vitiating the subject policy and rendered it invalid, void and unenforceable. On merits, the pleas of preliminary objections are reiterated and contents of complaint are also denied to be wrong. It is also submitted that complainant has made a complaint to Insurance Ombudsman and the Authority concerned after taking detailed reply from the ops’ company does not find any merits in the contention of the complainant and has dismissed the complaint vide order dated 26.05.2022 and complainant against the said order has not preferred any appeal and thus the said order attains finality. It is further submitted that life assured had herself declared under the proposal form that in case any statement made by her is found to be untrue, the claimant shall not be entitled to the insurance cover. So the ops looking into the material concealment of facts on the part of the life assured had repudiated the claim vide repudiation letter dated 04.10.2021. It is further submitted that in the proposal form, the mother of complainant has answered in negative to the information containing at point no.11 of the proposal form qua her previous ailment of Diabetes Mellitus with hypertension and has also concealed about the factum of undergoing brain surgery which she disclosed during her treatment to the treating doctor at Shah Satnam Hospital, Sirsa on 06.04.2017 and 11.05.2017. The self declaration as made by mother of the complainant abundantly made clear qua the disease she was suffering and further qua the factum of undergoing brain surgery. It is further submitted that sum assured under the policy as Rs.15,90,784/- and not Rs.22,50,000/-. That prior to issuance of present policy certain blood tests were got conducted in a defined parameter but that does not falsify the pre illness so suffering to the LA and the ops’ company looking into the gross concealment of material facts has rightly repudiated the claim so lodged by the complainant. With these averments, dismissal of complaint prayed for.
5. The complainant in evidence has tendered his affidavit Ex. CW1/A and documents Ex.C1 to Ex.C5.
6. On the other hand, ops have tendered affidavit of Ms. Aakriti Manocha, Senior Manager Legal as Ex. RW1/A and documents Ex.R1 to Ex.R5.
7. We have heard learned counsel for the parties and have gone through the case file.
8. Learned counsel for complainant while reiterating the contents of complaint has argued that repudiation of the genuine claim of the complainant on the above detailed reasons is wrong and illegal and prayed for acceptance of the complaint and relied upon judgments of the Hon’ble Supreme Court in cases titled as Manmohan Nanda vs. United India Assurance Co. Ltd. & ors. CA No. 8386/2015 decided on 06.12.2021 and Rekha Thakuri Vs. Bajaj Allianz Life Insurance Company and others SLP (Civil) No. 12809 of 2018 decided on 17.01.2024. Learned counsel for complainant has further relied upon judgments of Hon’ble National Commission in cases titled as National Insurance Company Limited Versus Jatinder Singh & anr. 2021 CPJ 156 (NC), PNB Metlife India Insurance Company Ltd. Versus Godavariben Kalubhai Vaghela III (2021) CPJ 66 (NC).
9. On the other hand, learned counsel for ops while reiterating the contents of written version has argued that ops have rightly repudiated the claim of complainant vide letter dated 04.10.2021 on the ground of concealment of material fact regarding pre existing disease by the life assured at the time of taking of policy in question and even the Insurance ombudsman has also dismissed the complaint vide order dated 26.05.2022 which has attained finality and prayed for dismissal of the complaint. In support learned counsel for ops has also relied upon judgment of the Hon’ble Supreme Vourt of India in case titled as Reliance Life Insurance Co. Ltd. & anr. Versus Rekhaben Nareshbhai Rathod, CA No. 4261 of 2019 decided on 24.04.2019.
10. We have considered the rival contentions of the parties. Admittedly on 31.12.2018 the mother of complainant namely Smt. Veena Jain during her life time had purchased insurance policy from ops by paying premium amount of Rs.1,56,750/- and the premium was to be paid by her annual for a period of 12 years which fact is also evident from policy document Ex.C5. Further from document Ex.C5, it is also evident that sum assured amount under the policy was Rs.22,50,000/-. There is no dispute of the fact that mother of complainant i.e. life assured died on 17.05.2021. The complainant being nominee and son of life assured lodged the claim under the policy with the ops but however, ops vide letter dated 04.10.2021 have repudiated the claim of complainant on the above said grounds of concealment of material fact of pre existing disease of Diabetes Mellitus and Hypertension and also for non disclosure of the fact that she underwent brain surgery prior to taking of the policy in question. However, the ops have failed to prove on record that any specific questions about health of life assured were actually put to her and she herself denied that she is not suffering from any disease. It is very commonly known fact that at the time of filling of proposal form, the agent of the insurance companies himself/ herself tick marks against the questions of pre existing diseases in NO i.e. in negative. Further more, the ops before issuing policy in question to the life assured got herself medically examined from their paneled doctors and got conducted several blood tests and at that time her Sugar level was 94 i.e. in normal range as is evident from test reports placed on file by complainant. If she was suffering from diabetes mellitus, then her report would not have been normal and it clearly proves the fact that at the time of purchasing of policy in question from ops i.e. on 31.12.2018 Smt. Veena Jain life assured was not suffering from diabetes mellitus. Though ops have placed on file out patient card of Veena Jain dated 10.04.2017 and dated 15.05.2017 issued by Shah Satnam Ji Specialty Hospital, Sirsa but in the out patient card dated 10.04.2017, it is mentioned that DM (Diabetes Mellitus) from 1 ½ years, HT from 1 ½ years and it is also mentioned that Brain Sx done from seven years but in the second out patient card of similar hospital dated 15.05.2017 it is mentioned that H/o of DM-I three years, HTN 15 years and H/o Brain Sx in 2000. So there is lot of difference regarding duration of history of above said disease in both the cards and as such it is not clear from both these cards that from when she was suffering from said diseases because Dr. Prajjwal Kumar in OPD card dated 10.04.2017 is mentioning that patient is suffering from DM for one and half years, HT from one and half years and brain Sx from seven years whereas Dr. Monika in OPD card dated 15.05.2017 i.e. after about one month from 10.04.2017 has mentioned H/o of DM-I from three years, HTN from 15 years and H/o Brain Sx in 2020. The ops have not examined the concerned doctors to prove the fact that who disclosed them duration of the history of above said diseases whether life assured herself disclosed about the same or any her relative disclosed about the same and thus both the OPD cards which are having lot of difference about duration of said diseases are not safe to be relied upon in evidence and as such version of ops regarding pre existing disease of life assured is not proved through any cogent and convincing evidence. Moreover, the ops after thorough medical examination of the life assured and after satisfying them about the health condition of the insured had issued policy in question and as such ops cannot take above said pleas of suppression of pre existing disease. Further more, the ops have also failed to prove on record that there is any relation with the above said disease and cause of death of deceased. In the death claim investigation report Ex.R7 itself, the Investigator has mentioned that doctor examined her and informed that she has died due to heart attack. However, the ops have failed to prove that deceased took any treatment for heart ailment before making proposal for the policy. The policy in question was purchased by life assured on 31.12.2018 and she died on 17.05.2021 i.e. after about two and half years and as such ops are not justified in repudiating the claim of complainant by giving reference of Section 45 of the Insurance Act because ops have failed to prove on record any misrepresentation of facts on the part of life assured now deceased. The judgments relied upon by learned counsel for complainant are also applicable in this case whereas judgment relied upon by learned counsel for ops is not applicable to the present case. The ops have wrongly and illegally repudiated the claim of complainant and he is entitled to the sum insured amount of Rs.22,50,000/- from ops being son and nominee of his mother now deceased.
11. In view of our above discussion, we allow the present complaint and direct the opposite parties to make payment of claim amount of Rs.22,50,000/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which complainant will be entitled to receive the said amount of Rs.22,50,000/- from ops alongwith interest at the rate of @6% per annum from the date of this order till actual payment. We also direct the ops to further pay a sum of Rs.10,000/- as compensation for harassment and Rs.5000/- as litigation expenses to the complainant within above said period. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member President,
Dated: 24.04.2024. District Consumer Disputes
Redressal Commission, Sirsa.
