DATE OF FILING: 19.12.2013
DATE OF DISPOSAL: 24.08.2017
O R D E R
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of Consumer Protection Act, 1986 alleging deficiency in insurance service against the Opposite Parties (for short, the O.Ps) and for redressal of her grievance before this Forum.
2. The brief facts of the complainant’s case was relevant for filing this consumer complaint is that her deceased husband late Abhi Jana had obtained 7 (seven) Bajaj Allianz Life Insurance Policies bearing No. 0098328184 for an assured sum of Rs.1,50,000/- only on payment of Rs.20,000/- towards regular premiums which is valid from 07.02.2008 to 07.07.2023 for a term of 15 years. The second policy bearing No.0098756511 was obtained for an assured sum of Rs.1,50,000/- on payment of regular premium of Rs.30,000/- for a term of 10 year and valid from 07.07.2008 to 07.07.2018. The third policy bearing No.0098329768 was obtained for an assured sum of Rs.1,50,000/- only on payment of Rs.30,000/- towards yearly premium and is valid from 07.07.2008 to 07.07.2018 for a term of 10 years. The forth policy bearing No.0098322421 was obtained for an assured sum of Rs.1,50,000/- only on payment of Rs.20,000/- commenced w.e.f from 07.07.2008 which is valid from 07.07.2008 to 07.07.2018 for a term of 10 years. The fifth policy bearing No.0098321544 was procured for a sum assured of Rs.1,50,000/- only on payment of Rs.20,000/- towards yearly premium which was commenced w.e.f. 07.07.2008 and the validity of the said policy is from 07.07.2008 to 07.07.2023 for a term of 15 years. The sixth policy bearing No.0098316898 was procured for assured sum of Rs.1,50,000/- only on payment of Rs.15,000/- towards annual premium which is valid from 07.07.2008 to 07.07.2023 for a term of 15 years and the seventh policy bearing 00112435567 was obtained for an assured sum of Rs.1,50,000/- only on payment of Rs.30,000/- commenced with effect from 6.11.2008 and valid from 06.11.2008 to 06.11.2018 for a term of 10 years. In the aforesaid seven policies, the present complainant being the wife of the deceased policy holder was nominated as nominees of all policies. During subsistence of all the seven policies, the insured died on 23.01.2009 due to falcifarum shock. So the complainant being the nominee lodged the claim against said policies with the O.Ps along with the relevant documents as per the requirement, but said claims were repudiated by the O.P. No.1 on 26.08.2009 on the ground that the deceased life assured was hospitalized and treated for haematemesis with melaena on 29.12.2005 and these facts known to deceased life assured were not disclosed in the proposal forms dated 03.05.2008, 03.05.2008, 03.05.2008, 03.05.2008, 05.05.2008, 10.05.2008, and 25.10.2008 respectively. The deceased had made in corrected statement and had suppression material facts regarding his health while availing all insurance policies. According to the complainant there was no suppression of material facts and as per the letter of repudiation the complainant redress his grievances before claims review committee on 22.09.2009 but the said committee also rejected and replied on 05.03.2010. When the O.Ps did not give any heed to the grievances of the complainant, she has filed this complaint with the prayer to direct the O.Ps to pay Rs.10,50,000/- (Rupees Ten Lakh Fifty Thousand) only towards seven policies along with up-to-date interest at the rate of 12% per annum from the date of death and to pay compensation and cost of the dispute in the interest of justice.
3. On notice being served, the O.Ps appeared in this Forum through learned counsel Sri Prasanta Kumar Nayak, Advocate. Although sufficient opportunities were given to the O.Ps to file their written version but did not file their written version, hence the O.Ps are declared set exparte on 17.02.2016 and the case was proceeded exparte against the O.Ps.
4. On the date of exparte hearing of the consumer dispute, we have heard the learned counsel for the complainant and have gone through the complaint, written argument and also verified the material documents placed on the case record.
During the course of hearing of the consumer dispute, the learned counsel for the complainant contended that the deceased policy holder had obtained sevens policies as stated in the complaint and written argument for a total assured sum of Rs.10,50,000/- under seven insurance policies on payment of premiums as stated in the policy documents respectively placed on the case record. When all the policies were in force, the deceased insured was died on 23.01.2009 for which the nominee complainant submitted the death claim before the O.Ps. The O.Ps repudiated the claim of the nominee complainant on 26/08/2009 on the ground of suppression of material fact on the ground that the life assured prior to making proposals he was hospitalized and treated for Haematemesis with Melaena on 29th December 2005. The O.Ps rejected claim and issued the repudiation letter on 26.08.2009 and advised the complaint to redress her grievance before claim review committee. However, the review committee also rejected the claim of the complainant on 05/03/2010. The learned counsel for the complainant specifically contended that the grounds stated in the rejection letter are false and baseless deceased life assured was died due to facifarum shock and cardio respiratory failure while he was undergoing treatment at U.G.P.H.C., Polasara, Ganjam.
5. In the above context, the points to be adjudicated by this Forum, whether the O.Ps are justified repudiating the claim of the complainant and whether the complainant is entitled for the sum assured under the aforesaid seven policies in dispute?
6. To adjudicate the above points in dispute, we would like to state that on perusal of the materials placed on the case record, we find that there is no dispute or doubt that the deceased life assured was obtained aforesaid seven insurance policies on different dates on payment of annual premiums as mentioned in the policy documents. It is also a fact not in dispute that during the subsistence of all the policies, the deceased life assured was died on 23.01.2009 due to falcifarum shock as is evident from the certificate of the Medical Officer, Dr.B.G. Behera of UGPHC, Polasara and the death certificate placed on the case record as Annexures. The investigation report as submitted by O.P. Bajaj Allianz placed on the case record as an Annexure also discloses that the cause of death of deceased policy holder was due to cardio respiratory failure as certified by the treating physician Dr. B.C. Behera of UGPHC, Polasara which is beyond any doubt or dispute since the O.P. has investigated the matter and reported through a format which is placed on the case record. Moreover, in this case the O.Ps though appeared through their learned counsel but did not prefer to file their written version or argument and not proceeded with the case as a result of which the O.Ps were declared exparte on 17/02/2016. It is also a fact placed on record that even after several opportunities were given, the O.Ps did not care to contest their case and not filed any cogent and convincing documentary evidence to prove their plea of suppression of material facts as stated by the O.Ps in the letter of repudiation. The O.Ps contended in their letter of repudiation that the deceased life assured had suppressed material facts regarding his health and was undergoing treatment for Haematemesis with Melaena on 29th December 2005 i.e. prior to taking of aforesaid insurance policies are in fact not proved through documents. The O.P. in this case not produced any convincing documentary evidence to establish their plea of suppression of material fact by the deceased life assured and miserably failed to prove their contention of suppression of material fact. In a case when the O.Ps are failed to substantiate their contention and not even filed a single scrap of paper as documentary evidence and proof of suppression of material fact by the decease policyholder, the same can’t be accepted by the Forum. In our considered view, when the O.Ps failed to controvert the contentions of the complainant, we are constrained to accept the contentions of the complainant and are inclined to allow the claim of the nominee complainant. In absence of any controverted version or argument and convincing documentary evidence produced by the O.Ps, we are unable to accept the contentions of the O.Ps that the deceased policy holder had suppressed material facts regarding his health prior to taking of aforesaid seven policies in dispute. No doubt that this is an early claim since the deceased policy holder took the policies during July 2008 but unfortunately died on 23.01.2009 due to cardio respiratory failure. In this regard we would like to view that we are unable to hold that there was suppression of material facts regarding his health conditions by the deceased policy holder. In the instant case, even though Section 45 of Insurance Act, 1938 is not attracted i.e. policy not to be called in question on the ground of misstatement after two years but we are unable to reject the claim of the complainant since the O.Ps not contested the case of the complainant and not proved their case by filing documentary regarding suppression of material fact or misstatement by the proposed during the time of taking aforesaid seven insurance policies in dispute. Moreover, even if the proposer was suffering from any disease, the doctor of the insurance company who had examined him before issuance of policy would have certainly find it out and the onus to prove that the deceased policyholder was suffering from a pre-existing disease i.e. haematemesis with melaena, as per settled law, is on the O.Ps. In the instant case the O.Ps have neither filed any written version nor produced any credible documentary evidence or expert medical opinion to support their claim of suppression of material fact. In this connection we would like to refer the decision of Hon’ble National Commission in the case of Tarlok Chand Khanna versus United India Insurance Company Limited reported in 2012 CPJ 84 (NC) where it was held that ‘the onus to prove that the insured was suffering from pre-existing disease is on insurance company’. That apart, the deceased life assured has paid a total sum of Rs.1,65,000/- as premium towards seven insurnce policies in disputes and when his widow in distress condition it is the moral duty of the insurance company to settle the claim of the complainant. In view of the above discussion and decision of law, we are therefore, interested to allow the case of the complainant against all O.Ps who are jointly and severally liable to pay the sum assured under aforesaid seven insurance policies in dispute with interest at the rate of four per cent per annum from the date of filing of this dispute till actual payment is made to the nominee complainant. We are also inclined to award cost of litigation to be paid by the O.Ps to the complainant since the O.Ps did not settle the case of the complainant as a result she was forced to file this case in this Forum. As far as the cost of litigation is concerned, we feel that a modest sum of Rs.3000/- will be just and proper in the fact and circumstance of the case. However, we are not interested to award any compensation in this case since the complainant has not prayed for that and the Forum has already awarded interest on the assured amount to be paid by the O.Ps to the complainant. In the light of aforesaid discussion, deliberation and decision and considering the fact and circumstances of the case, we allowed the case of the complainant against all O.Ps who are jointly and severally liable to pay the sum assured under aforesaid seven policies in dispute.
7. Resultantly, the O.Ps who are jointly and severally liable are directed to pay an amount of Rs.10,50,000/- (Rupees Ten Lakhs and Fifty Thousand) only to the nominee complainant towards sum assured under above said seven insurance policies along with interest at the rate of 4% per annum from the date of filing of this dispute i.e. 19.12.2003 to till actual payment is made to the complainant. We also direct the O.Ps to pay a modest sum of Rs.3,000/- to the complainant towards cost of litigation. The above orders shall be complied by the O.Ps within two months from the date of receipt of this order, failing which the complainant is at liberty to recover the above amounts under Section 25/27 of the Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly.
8. The order is pronounced on this day of 24th August 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
