Haryana

StateCommission

CC/112/2014

Naresh Kr - Complainant(s)

Versus

Aviva Life Ins. Co. - Opp.Party(s)

21 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

                                                         Complaint No.112 of 2014

Date of Institution: 29.10.2014

                                                               Date of Decision: 21.07.2016

 

Naresh Kumar S/o Late Sh.Umed singh, R/o VPO Chirod Tehsil and Distt. Hissar Haryana.

…..Complainant

Versus

 

1. Aviva Life Insurance Company Limited, 3^rd Floor, near State Bank of India and Minrwa Hotel, Red Square Market, Hisar through its Branch Manager.
2. Managing Director/authorized signatory Aviva Life Insurance Company India Limited, Aviva Tower, Sector Road, Opposite  DLF Golf Course, DLF Phase –V, Sector 43, Gurgaon (Haryana) 122003..

                                      …..Opposite parties

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mr.Diwan Singh Chauhan, Member.                                                                                                                                            

Present:              Shri Narender Kaajla, Advocate counsel for the appellant.

Shri Nitin Gupta, Advocate counsel for the respondents.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:

     It is alleged by the complainant that his father obtained insurance policy No.AIL500800 from opposite party (O.P.) No.1 valid from 05.06.2012 to 04.06.2022 for insured value of Rs.25 lakhs.  Unfortunately he died on 03.07.2012 at the age of 44 years.  He submitted claim, but, was repudiated without any reasonable ground.  Hence the complaint.

2.                O.P. filed reply admitting issuance of policy, but, alleged that the claim was rightly repudiated due to concealment of previous disease.  Life assured (hereinafter to be referred as DLA) received treatment about cancer in the month of September 2008, but, did not disclose the same.  Insurance policy was obtained by fraud telling his date of birth as 01.08.1968. Objections about accruing cause of action, concealment of true facts etc. were also raised and requested to dismiss the complaint.

3.               Arguments heard. File perused.

4.               Learned counsel for the O.P. vehemently argued that at the time of obtaining insurance policy, copy of which is Ex. OP-1, DLA did not disclose about his previous ailment.  As per report submitted by Hawk vision copy of which is Ex.OP-2, it is clear that DLA received treatment about cancer in the month of 2008 from O.P. Jindal Institute of Cancer and Research (In short “Jindal Institute”).  He also received treatment from Jindal Institute in the year 2010 which is clear from discharge card.  Investigation report submitted by NNB Investigation Private Limited Ex.OP-3 also shows that he received treatment about cancer from Jindal Institute on 28.09.2010. Insurance contract is of uberrima fides (utmost good faith) and when something has been concealed by insured, compensation cannot be granted, so his claim was rightly repudiated. 

5.               There is no dispute as far as proposition put-forward by O.P,s.  counsel is concerned, but, to derive any benefit  it is duty of the insurance company to prove with cogent evidence that DLA concealed the fact of previous ailment or treatment.  If this fact is not proved or is doubtful then the benefit of the same is to be given to the complainant.  In such like matter the benefit of doubt is to be given to the consumer and not to the service provider as opined by Hon’ble National Commission in Revision petition No.4544 of 2012 decided on 27.11.2013 titled as National Insurance Company Ltd. Vs. Gopanaboina Sathyam and revision petition No.3236 of 2013 decided on 07.08.2014 titled as Sh. Abhishek Jain Vs. HDFC Standard Life Insurance Co. Ltd.  If we go through the evidence available on the file it will be clear that O.P. has miserably failed to show that DLA received any treatment.  Ex.OP-2 is report, submitted by Hawk Vision, appointed by O.P. to look into the matter.  It is admitted by witness of O.P. that Hawk Vision is on the panel of their company.  Nobody has come from Hawk vision to prove this report.  O.P. has also failed to connect treatment chart dated 24.09.2008 with DLA.  In this document neither the name of father of patient nor his address is mentioned. It is not connected to DLA in any manner.  Further O.P. has also failed to show that discharge summary dated 23.09.2010 is pertaining to DLA.  It is the photocopy of discharge summary not proved by anyone.  It is not authenticated by any doctor.  No doctor was examined by O.P.  It was admitted by witness of O.P. that original documents were in the head office. Those should have been produced before the Commission during evidence.  As per discharge summary he was having problem of imgalene maiss need.  Discharge summary is no ground to presume that patient was suffering from problem since the period mentioned therein unless proved by the doctor who prepared the same and prove that the history was told by the patient as opined by Hon’ble National Commission in revision petition No.2021 of 2009 titled as LIC of India & Anr. Vs. Smt. Chawali Devi decided on 03.12.2015. Para No.6 of above said judgment is important and is as under:-

“As far suppression of material facts regarding existing disease and treatment is concerned, learned Counsel for the petitioner has drawn my attention towards history of deceased noted by doctor in which it was mentioned that deceased was having breathlessness, cough c expectoration etc.  No doubt, this fact has been mentioned as patient’s history, but petitioner has failed to place any document on record regarding treatment of aforesaid breathlessness, cough expectoration etc.  and has not filed any affidavit of concerned doctor who recorded history to prove that this history was given by deceased himself.  In such circumstances, only on the basis of recorded history of deceased, it cannot be held that deceased was suffering from breathlessness, cough c expectoration etc. since last 10 years and had taken any treatment.”

It may be pointed out that NNB Investigation Private Limited mentioned in it’s report Ex.OP-3 that DLA’s medical record file was not traceable in the hospital. When the record is not available in the hospital how it can be presumed that DLA received treatment.  NNB Investigation  recorded statements of some persons of the village namely Bajrang, Santosh and Raheem and they specifically stated that DLA was not having any previous ailment.  He developed pain in the chest on 03.07.2012  and expired on that very day. These statements were recorded by the investigator of the insurance company and has corroborated his case (complainant).  When record of DLA was not traceable how and from whom discharge summary was obtained is no-where explained, so O.Ps. wrongly repudiated the claim of the complainant.  Hon’ble Supreme Court has also opined inCivil Appeal No.7969 of 2010 titled Balwinder Kaur (D) THR LRs Vs. Life Insurance Corporation decided on 13.09.2010 that a certificate merely showing that the deceased remained admitted in a hospital by itself could not lead any inference that he was suffering from serious ailments before taking the policy. It is further opined that even the observation of the doctor that “the patient had a chronic illness of liver for last many years which became serious for last one and half years before his death is neither here nor there.”

7.               In view of above discussion claim of complaint was wrongly repudiated and he is entitled for insured amount. Resultantly complaint is allowed and O.Ps. are directed to pay insured amount alongwith interest @ 9% per annum from the date of filing of the present complaint i.e. 29.10.2014 till it’s actual realization.  The complainant shall also be entitled for a sum of Rs.15,000/- as compensation for harassment, mental agony etc. and Rs.5000/- as of litigation expenses.  The O.Ps. shall make compliance of this order within a period of 40 days from the date of receipt of the copy of this order.

 

July 21st, 2016            Diwan Singh Chauhan                        R.K.Bishnoi,                                                               Member                                              Judicial Member                                                         Addl. Bench                                        Addl.Bench