BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.262 of 2013

Date of Instt. 20.6.2013

Date of Decision :16.12.2014

Mrs.Poonam Jain wife of late Shri Vivek Jain, Tilak Bhawan, Jail Road, Mission Compound, Near Radha Swami Sat Sang Bhawan, Jalandhar.

..........Complainant

Versus

1. Aegon Religate Life Insurance Company Limited, Nomura, B-Wing, First Floor, Unit No.102, Near D-Mart, Hiranandani Business Park, Hiranandani Garden, Powai, Mumbai-400076.

2. Aegon Religare Life Insurance Company Limited, Branch Office, PUDA Complex, Ladowali Road, Jalandhar through its Branch Incharge.

.........Opposite parties

Complaint under section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.KC Malhotra Adv., counsel for complainant.

Sh.MS Narula Adv., counsel for opposite parties.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant is unfortunate wife of Vivek Jain(since deceased) who whilst alive allured and induced by tempting lucrative benefits of life insurance policy for life risk coverage was approached, canvassed and advised by authorized agent/representative of opposite parties to get his life insured. On canvassing and assurance of opposite parties agent/representative that Agegon Religare 1 Term Plan of opposite parties is suitable, advantageous to the need and requirements and life insurance risk coverage saving and income tax benefits of life insurance, was made agreeable to go in for said insurance policy. On the inducement of agent/representative of the opposite parties Vivek Jain(hereinafter in short referred as DLA) paid an annual initial premium of Rs.12,398/- as consideration for policy term 16 years against the proposal dated 15.4.2010 insurance policy. The sum assured is Rs.20 Lacs. The proposal form was got filled in Online and the signature of DLA were obtained on dotted line and other allied forms mechanically relevant for under writing and acceptance of risk of the proposal for life insurance. Opposite parties after scrutiny and verifying the particulars of proposal form taken through online, respective reports of the agent and fully satisfying as to the health profile and habits, physical condition and insurability of life to be insured and without raising any kind of objection as to the details given in proposal form filled in through online and personal statement the proposal was accepted as standard life at ordinary rate of premium. The proposal was allotted policy No.510041178520. DLA was highly insurance minded person, fully conscious of the need for life insurance. In section 3- Proposal form DLA had got incorporated that in year 2008 DLA was insured for sum assured of Rs.1 Crore with LIC of India and Rs.11,58,790/- sum assured with Max New York life insurance company Ltd. All proposal form and reports relating thereto with these insurer would reveal that no adverse feature was found in the health and habits profile and insurability of DLA. To the misfortune and ill luck, DLA expired on 14.11.2010, due to cardiac arrest. The death of DLA was natural. It is God's Will. The policy bearing No.510041178520 was enforced for the full sum assured on the date of death of DLA. Subsequent of death of DLA, the complainant made a claim for payment of death benefit payable in case of death of DLA during the term of the policy alongwith benefits accruing therefrom through opposite party No.2. The claim so made covered by the policy has been repudiated by opposite party No.1 vide letter dated 24.6.2011, received by post by the complainant. Opposite party No.1, while conveying the repudiation of the policy had not sent copy of the proposal form dated 15.4.2010 and copy of the policy document dated 21.5.2010 and the alleged routine claim investigation report got conducted and the adverse evidence/proof relied upon and made basis for repudiation of the claim. In repudiation letter opposite parties advised to approach the grievance redressal forum/agent against the decision of repudiation if the complainant so wish to do so. The complainant filed a consumer complaint No.590 of 2012 in this Forum and this Forum vide order dated 20.5.2013 directed opposite parties to supply copies of documents in their possession as asked for by the complainant within 15 days from the date of receipt of the copy of the order and also awarded Rs.2000/- on account of compensation and litigation expenses. The complainant was highly insurance minded as stated(supra) and underwent thorough, complete, comprehensive and careful medical check up by panel doctor(medical examiner) and TPA in respect of life insurance policy of Rs.1 Crore taken from the Life Insurance Corporation of India and also additional special medical examination clinical reports on its prescribed form relating to Health Profile were obtained by Life Insurance Corporation of India in November 2008. The life assured had good and perfect health, insurability as standard life with no trace of any physical impairment and diseases, illness after clinical, physical and medical examination and special test reports for the purpose of under writing and for assessing risk of life insurance and DLA was found to be insurable and the risk on his life was accepted. The claim under all these policies of a heavy sum assured of Rs.1 Crore was paid by the LIC of India and also Max New York Life Insurance Company Limited. The life assured was not suffering from alleged diseases as attributed in letter of repudiation. DLA had no past medical history and was not suffering from Koch, Allergic, Rhinitis, Atopy, Diabetes Mellitus, Essential Hypertension, Chronic Cystitis, early BPH and had no prolonged treatment for the alleged diseases and complications thereof. DLA was not being treated with Tab Actor, used in the treatment of hypertipidemia. He had also not taken any treatment in October 2008 from National Kidney Clinic and Research Centre. All the allegations, imputations and averments as made in letter of repudiation are wrong, incorrect and are vehemently and specifically denied. All such allegations are demolished by the medical examination conducted and special medical examination reports taken by Life Insurance Corporation of India in respect of life insurance policy fully described(supra). The policies taken from Life Insurance Corporation of India and Max New York Life Insurance Company Limited were duly disclosed and mentioned in the proposal form-Section 3, insurance history dated 5.4.2010. The alleged diseases have no nexus with the cause of death which was due to cardiac arrest. On such like averments the complainant has prayed for directing the opposite parties to pay the death claim of the above said policy i.e Rs.20 Lacs being the sum assured to the complainant alongwith interest. She has also claimed compensation and litigation expenses.

2. Upon notice, the opposite parties appeared and filed a written reply pleading that Mr.Vivek Jain (hereinafter called "the deceased life assured" was suffering from Epigastric Henia since last 11 years, had undergone Epigastric Hernia repair on 2.11.2000, was having past history of Pulmonary Kochs in 1971, in the year 2003 had consulted for Allergic Rhinitis and was diagnosed as a case of Atopy, was suffering from DM and running high BP during the following period:-

3. Further, in year 2008 the triglyceride level of the deceased life assured was 208 similarly, the deceased life assured had approached the National Kidney Clinic and Research Centre in the year 2008 with complaints of low grade fever with dysuria investigations revealed Creat 1.4, USG Kidney-Prostrate-23.5 gms, Residual Urine-5ml, cystocele F/U of 20/9/2008 mentioned BP as 150/100 mm of Hg and he was diagnosed as case of Essential Hypertension, Chronic Cystitis, Early BPH. Besides the aforesaid diagnosed medical conditions and treatment the LA was started on T Amlopress 5 Mg. Admittedly the deceased life assured was a known case of Diabetes Mellitus and was under regular medication since June 2003 from Sareen Hospital, Central Town, Jalandhar. The deceased life assured also had consulted for the C/o of Allergic Rhinitis and was diagnosed as a case of Atopy. Inspite of the aforesaid life threatening conditions and prolonged treatment for the aforesaid serious diseases, the deceased life assured Vivek Jain had submitted an application for insurance dated 15.4.2010 proposing for issuance of Aegon Religare I Term Plan, in his own name for an annual initial premium of Rs.12,398/-. The sum assured is Rs.20 Lacs. On decision taken by the under writers of the opposite parties to accept the proposal the deceased life assured was issued in terms of the IRDA guidelines copies of the first premium receipt, welcome letter, policy schedule, proposal form and other policy documents which were duly delivered to the deceased life assured on 25.5.2010. At the time of submitting the application for insurance, the deceased life assured did not disclose the pre-existing aforesaid diseases. Thus the opposite parties and their under writers were deprived of the correct assessment of the risk on the life of the deceased life assured. On receipt of claimant statement, the opposite parties appointed the investigator to investigate into the claim of the complainant. On the basis of the above said investigations, the opposite parties repudiated the claim of the complainant and intimated her in this regard vide letter dated 24.6.2011 giving all details/reasons/grounds for repudiation of the claim. They denied other material averments of the complainant.

4. In support of her complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CA to Ex.CD along with copies of documents Ex.C1 to Ex.C15 and closed her evidence.

5. On the other hand, learned counsel for opposite parties tendered affidavit Ex.OPA/1 alongwith documents Ex.OP1 to Ex.OP7 and closed evidence.

6. We have carefully gone through the record and also heard the learned counsels for the parties and have further gone through the written arguments submitted on behalf of opposite parties.

7. It is not disputed that Vivek Jain husband of the complainant, since deceased, was insured with the opposite party insurance company. The sum insured was Rs.20 Lacs. It is not disputed that deceased life assured expired on 14.11.2010. After his death the complainant filed claim with opposite party insurance company but opposite party insurance company repudiated her claim vide letter dated 24.6.2011 Ex.C-1 on the ground that DLA has suppressed material facts which were asked for in the proposal form while making proposal for the above referred policy. It is further alleged that deceased life assured was having following pre-existing diseases:-

1. DLA had a past medical history of Pulmonary Kochs.

2. DLA was a known case of Epigastric Hernia and had undergone Epigastric Hernia repair in November 2000.

3. DLA had undergone medical treatment for Allergic Rhinitis and was a suspected case of Atopy.

4. DLA was a known case of Diabetes Millitus and was under regular medication since June 2003.

5. DLA was further diagnosed as a case of Essential Hypertension, Chronic Cysitis, Early BPH and was on regular medication since September 2008.

6. DLA was being treated with Tab Actor: used in the treatment of hypelipidemia, indicating that the DLA was suffering from this ailment.

7. DLA was under treatment at National Kidney Clinic and Research Centre since October 2008 and the treatment papers reveal increased levels of creatinine and Urea levels.

8. Counsel for the complainant contended that deceased was not suffering from any alleged ailment and the opposite parties have not proved the treatment record in this regard as they have neither examined the doctor who treated the deceased nor tendered his affidavit into evidence. He further contended that alleged ailments mentioned in the repudiation letter have no nexus with the death of the deceased. He further contended that moreover the deceased was supposed to disclose the ailment which he was having at the time of filling the proposal form and not 10 years ago for which he was treated and was cured. On the other hand according to the written arguments submitted by opposite parties and also contentions advanced by learned counsel for the opposite parties the DLA was suffering from Epigastric Hernia since last 11 years, had undergone Epigastric Hernia repair on 2.11.2000, was having past history of Pulmonary Kochs in 1971, in the year 2003 had consulted for Allergic Rhinitis and was diagnosed as a case of Atopy, was suffering from DM and running high BP during the following period:-

9. Further according to the opposite parties, in the year 2008 the triglyceride level of the deceased life assured was 208 similarly, the deceased life assured had approached the National Kidney Clinic and Research Centre in the year 2008 with complaints of low grade fever with dysuria investigations revealed Creat 1.4, USG Kidney-Prostrate-23.5 gms, Residual Urine-5ml, cystocele F/U of 20/9/2008 mentioned BP as 150/100 mm of Hg and he was diagnosed as case of Essential Hypertension, Chronic Cystitis, Early BPH. Besides the aforesaid diagnosed medical conditions and treatment the LA was started on T Amlopress 5 Mg. Further according to opposite parties the deceased life assured was a known case of Diabetes Mellitus and was under regular medication since June 2003 from Sareen Hospital, Central Town, Jalandhar. The deceased life assured also had consulted for the C/o of Allergic Rhinitis and was diagnosed as a case of Atopy. Counsel for the opposite parties contended that the DLA has suppressed above said material facts at the time of filling the proposal forum. He further contended that all the above ailments from which DLA was suffering stand proved from the copy of documents Ex.OP2 to Ex.OP4. We have carefully considered the above contentions advanced by learned counsels for both the parties.

10. Firstly document Ex.OP2 to Ex.OP4 have not been proved by the opposite parties as they have not examined the treating doctor or doctor who conducted the test.

11. In SBI Life Insurance Co.Ltd Vs. Harveinder Kaur, III(2014) CPJ 552(NC), the Hon'ble National Commission has held as under:-

"We have considered the rival contentions and perused the record, Undisputedly, the petitioner OP has repudiated the claim of the respondent on the ground that the insurance was obtained by the deceased Sukhwinder Singh by concealing the fact that he was suffering from primary pulmonary hypertension. The onus of proving the above ground for repudiation of insurance claim lies heavily on the petitioner. The petitioner in order to prove concealment of previous ailment on the part of th deceased Sukhwinder Singh is relying upon the photocopy of the discharge card allegedly issued by the Tagore Hospital Jalandhar. If this discharge card is taken to be proved, then patient Sukhwinder Singh was admitted in the above noted hospital from 14.6.2007 to 21.6.2007 and at the time of admission, he gave the history of pulmonary hypertension for the last two years. The core question, however, is whether the petitioner has proved the above noted discharge card and linked it with the insured Sukhwinder Singh.

On perusal of record, we find that the concerned doctor who allegedly treated the insured Sukhwinder Singh from 14.6.2007 to 21.6.2007 and recorded that the patient was admitted with the history of pulmonary hypertension for the last two years was not examined by the petitioner to prove the photocopy of the discharge card relied upon by the petitioner nor the affidavit of said doctor has been filed. Even the original record of the Tagore Hospital has not been produced to prove the discharge card, which obviously, is a secondary evidence. Since the petitioner has failed to produce primary evidence to establish the ground for repudiation of claim, the Foras below in our considered view were right in declining to reply upon the photocopy of the discharge card produced by the petitioner to establish that the petitioner while obtaining the insurance policy concealed the fact that he was suffering from pulmonary hypertension".

12. The ratio of the above cited authority is applicable on the facts of the present case. Documents Ex.OP2 to Ex.OP4 are photo state copies, even the original documents have not been produced. Moreover Ex.OP2 is dated 12.6.2003 and whereas the policy was taken in the year 2010. Similarly in Ex.OP3 some disease of the year 1997 is mentioned. Pre-existing disease means the disease which is existing at the time of obtaining the policy or in close proximity of it for which the insured has undergone any treatment and not the disease for which the insured had already obtained treatment long back and has been cured.

13. In Oriental Insurance Co.Ltd & Anr Vs. Mohinder Singh(Dr.), 2009(1) CLT 494, the Hon'ble State Commission of New Delhi has held as under:-

"In one of our decisions we had dealt with the meaning and concept of the word "Disease" as well as "Pre-existing disease" particularly in reference to the mediclaim insurance policy in a highly dissective and extensive manner. The crux of those conclusions is that until a person is hospitalized or undergoes operation in the near proximity of obtaining policy or say year or two before it he is not supposed to disclose any day to day problem or normal wear and tear of human life particularly in the modern times where person lives stress full life".

14. Further in, National Insurance Co.Ltd Vs. Smt.Krishna Avtar Aggarwal, II(2005) CPJ 747 it has been held by Hon'ble State Commission of New Delhi as under:-

"After having closely perused and scrutnised the report of Dr.Batra as well as the above report of discharge slip or history we find that the respondent sustained acute MI in the year 1980 and reinfarction 7-8 months later and became well on medical therapy.

As we have observed as to the import and significance of the word "pre-existing disease" we find that a person who does not suffer the same disease which he suffered and was treated for more than 15 years back is neither supposed nor expected to disclose that he was still suffering from the said disease in the year 1994 when he took the mediclaim policy. Thus there was no concealment on the part of the respondent about the disease suffered from at the time of taking the policy".

15. Even if for the arguments sake document Ex.OP2 to Ex.OP4 are taken into consideration, it does not prove any concealment of any material disease by the DLA. Ex.OP2 is a document regarding allergic rhinitis to the deceased. As per written arguments, the deceased life assured had consulted for allergic rhinitis and was diagnosed as a case of Atopy. Allergic Rhinitis is not a material disease. Moreover in these days due to pollution or stress or some other reasons majority of population is suffering from some type of allergy. It is not at all a material fact which the deceased life assured was supposed to disclose at the time of taking policy in the year 2010, particularly when he has consulted the doctor regarding Allergic Rhinitis in the year 2003. Further as per written arguments, the deceased life assured had undergone Epigastric Hernia repair on 2.11.2000. Again the fact that the deceased life assured had gone for Epigastric Hernia 10 years prior to the obtaining of the policy is not a material fact. Further as per written arguments the deceased life assured was having history of Pulmonary Kochs in 1971. The fact that the deceased had Pulmonary Kochs in the year 1971(1997) i.e number of years before taking the policy is also not a material fact. Further according to the written arguments submitted by opposite party, the deceased was suffering from Essential Hypertension, Chronic Cystitis, Early BPH. Cystitis is nothing but urinary tract infection and can easily be treated with course of antibiotic. Early BPH is nothing but enlargement of prostate which is non cancerous. The prostate get enlarge with advancing of age. It is not a material disease. In the present days Hypertension, Diabetes Mellitus are not treated as material diseases but life style disease which can easily be managed and controlled.

16. In Birla Sun Life Insurance Co. Limited another Vs Sukhwinder Singh another, First Appeal No.714 of 2011 decided on 04.05.2011 by our Hon'ble State Commission in somewhat similar circumstances, it has been held that :-

"Admittedly the life assured in the present case had not disclosed if she was suffering from hypertension or from diabetes. The appellants have also produced the documents to show that the life assured was suffering from hypertension and diabetes. The question which arises for determination is whether that ground is sufficient for repudiation?

12. So far as diabetes is concerned, the settled law is that this is not a material disease and the Insurance Companies have no right to repudiate the insurance claim on its basis. Majority of the population in India suffers from diabetes but diabetes can be kept under control as this is a cureable disease. It was held by this Commission in First Appeal No.1674 of 2002 “L.I.C. of India and others v. Ramandeep Kaur, and another” decided on 2.2.2009 as under:“

16. So far as the law on the subject is concerned it was held by the Hon’ble Supreme Court in the judgment dated 10.10.1995 recorded in “Biman Krishna Bose vs. United India Insurance Co.” Civil Appeal No.343 8 of 1995 that if a person is suffering from hypertension, the insurance claim of the legal heirs of such a person cannot be repudiated on the ground that the life assured had suppressed this information from the Insurance Company. Moreover hypertension is not a material disease which is fatal in itself.—

13. It was held by this Commission in the judgment reported as “Life Insurance Corporation of India vs. Sushma Sharma” 1(2008) CPJ 213 as under:“

18. So far as hypertension 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 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.”

14. It was also held by this Commission in the judgment reported as “Lfè Insurance Corporation of India vs. Satwinder Kaur” 2008(2) CLT 405 as under:“

11. The settled law is that the Insurance Companies must have solid and convincing evidence to prove that the insured had suppressed material facts while filling the proposal form. The right of repudiation cannot be granted to the Insurance Companies on flimsy grounds or sketchy evidence. After all the Insurance Companies insure a person, take the premium and when it comes to making the insurance claim, they find out one or the other ground to reject the claim. Courts, therefore, have to be cautious while determining the rights of the parties and has to insure that the right of repudiation is exercised by the Insurance Companies judicially and on sound principles.”

17. There is nothing in copy of lab report Ex.OP4. As per this report there is slight increase in cholesterol level, Uric Acid and phosphate. A slightly elevated Uric Acid level or cholesterol level can easily be controlled by regulating diet or with the help of exercise. Slightly increased level of phosphate in isolation proves nothing.

18. In view of above discussed circumstances, we are of the view that opposite parties were not justified in repudiating the death claim of the deceased filed by the complainant.

19. In view of above discussion, the present complaint is accepted and opposite parties are directed to pay Rs.20 Lacs to the complainant alongwith 9% interest from the date of repudiation of her claim till the date of payment. It is clarified that interest is being granted as compensation. The complainant is also awarded Rs.3000/- on account of litigation expenses. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

16.12.2014 Member President