BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.<br /> <br /> Complaint No.02 of 2008.<br /> Instituted On: 01.01.2008.<br /> Date of Service: 25.01.2008.<br /> Decided On: 03.07.2008.<br /> <br /> <br /> Darbara Singh (aged 49 years) son of Hazura Singh son of Jhanda Singh, resident of House no.1424, Gali No.4-A, New Sodhi, Ngar, Moga.<br /> Complainant.<br /> <br /> Versus<br /> <br /> 1. Aviva Life Insurance Company India Private Limited through its:<br /> i) Director, 5th Floor, J.M.D. Regent Square, Gurgaon, Mehrauli Road, Gurgaon, Haryana.<br /> ii) Branch Manager, G.T.Road, Moga.<br /> <br /> 2. Yogesh Aggarwal, now working as Branch Manager, ICICI Bank, Panipati (Haryana)<br /> Opposite Parties.<br /> <br /> <br /> Complaint under section 12 of The<br /> Consumer Protection Act, 1986.<br /> <br /> <br /> Quorum: Sh.J.S.Chawla, President.<br /> Smt.Bhupinder Kaur, Member.<br /> <br /> Present: Sh.R.K.Goyal, Adv.counsel for the complainant.<br /> Sh.Kuldeep Sahni, Adv.counsel for OP-1<br /> Sh.R.P.Shahi, Adv.counsel for OP-2<br /> <br /> (J.S.CHAWLA, PRESIDENT)<br /> Sh.Darbara Singh complainant has filed the present complaint under section 12 of The Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against Aviva Life Insurance Company India Private Limited Gurgaon, Mehrauli Road, Gurgaon, Haryana through its Director (herein-after referred to as ‘Aviva Life’) and others- opposite parties directing them to make the payment of Rs.263000/- as insurance amount and also to pay Rs.25000/- as compensation to him for causing mental tension and harassment beside costs of litigation.<br /> 2. Briefly stated, Gurmit Kaur wife of Darbara Singh complainant had purchased a life insurance policy bearing no.LLG 1237088 during her life time for Rs.250000/- and paid first premium/ installment of Rs.25000/- while risk commencing from 15.5.2006 through OP2-Yogesh to OP1-Aviva Life. That the complainant is the nominee under the said policy. Thereafter, second installment of Rs.26500/- was also paid to the OP1-Aviva Life through OP2-Yogesh. That unfortunately, Gurmit Kaur insured died on 09.08.2007 due to sudden cardiac arrest. That the complainant being the legal heir and nominee of deceased Gurmit Kaur submitted his claim regarding the said policy with the OPs-Aviva Life Insurance. That the complainant was stunned when the OPs-Aviva Life Insurance repudiated his claim vide letter dated 19.09.2007 on the false and flimsy grounds. That there was no fault on the part of complainant as well as deceased Gurmit Kaur because OP2-Yogesh was conversant with the sickness of Gurmit Kaur deceased at the time of filling the proposal form etc. That the complainant or his wife Gurmit Kaur never concealed any fact regarding her illness. Moreover, after completing all the formalities and making all inquiries as per their norms, the OP1-Aviva Life accepted the proposal form receiving huge amount of Rs.25000/- as first premium against the policy. That the aforesaid act and conduct of OPs-Aviva Life had caused great inconvenience, harassment and mental agony to the complainant for which he has claimed Rs.25000/- as compensation beside costs of the litigation. Hence the present complaint.<br /> 3. Notice of the complaint was given to the OPs. OP1-Aviva Life appeared through Sh.Kuldeep Sahni Advocate and filed written reply contesting the same. They took up preliminary objections that the allegations of harassment, mental tension, deficiency in service are false and baseless; that these allegations have been levelled by the complainant to defame OP1-Aviva Life for wrongful gains. On merits, it was alleged that in fact policyholder Gurmit Kaur was suffering from astmatoid bronchitis and had been treated for breast cancer and these facts of pre-existing ailment were not disclosed by the ‘life assured’ in the proposal form at the time of applying for the policy. It was further alleged that the documents submitted by the complainant revealed that she was suffering from astmatoid bronchitis and had also undergone an operation for breast cancer. Thereafter, on September 18th 2007 the OP1-Aviva Life received a letter from the complainant wherein he had admitted that his wife had undergone an operation for breast cancer 17 years back. It was also alleged that this amounts to non disclosure and misrepresentation of material facts regarding the health of the policyholder. In the proposal form the policyholder under the head ‘Health and Activity section’ stated that she was neither suffering from asthma, bronchitis nor did she ever undergo any kind of surgery and she also declared that she was not currently in hospital and / or receiving medical treatment or advice. Based on these findings, the claim of the complainant was denied as there was non-disclosure and mis-statement of material facts. Non disclosure of material facts is in violation of the terms and conditions of the Insurance Policy. Insurance being a contract of “Uberrimae Fidae” (utmost good faith), the policyholder was duty bound to reveal all relevant facts to the insurer to determine the policyholder’s eligibility for availing the Insurance policy. Since the complainant had withheld material information and given false statements in the proposal form, the OP1-Aviva Life had rightly repudiated the claim of the complainant vide letter dated 19th September 2007. All other allegations contained in the complaint were specifically denied being wrong and incorrect. <br /> 4. Sh.R.P.Shahi, ld.counsel for OP2-Yogesh Aggarwal also filed written reply taking preliminary objections that the complaint is not maintainable; that the complaint is bad for non-joinder and mis-joinder of necessary parties; that the answering OP has been unnecessarily impleaded as a party in the complaint; that this Forum has got no jurisdiction to entertain and try the present complaint. On merits, it was alleged that in fact the OP1-Aviva Life had tie up with Centurion Bank of Punjab in the year of 2006 and therefore, the OP1-Aviva Life had opened the dealing counter in all the branches of said banks including at Moga. The said counter was opened by the Faridkot branch of OP1-Aviva Life. Whenever a customer comes to the bank, the dealing clerk or officer usually make the reference to contact and consult the dealing officer of the OP1-Aviva Life for getting insurance. Similarly, the complainant might be given the reference by the bank officials and to contact the dealing/ official for getting insurance policy. It was denied that OP2-Yogesh Aggarwal ever took part in completion of formalities for getting insurance policy. Moreover, the answering OP was neither informed about the death of Gurmit Kaur insured nor he has any concern with the insurance claim of the complainant, if any. All other allegations levelled against him were specifically denied being wrong and incorrect. Hence, it was prayed that the complaint filed by the complainant has no merit and it deserves dismissal.<br /> 5. In order to prove his case, the complainant tendered in evidence affidavit Ex.A1, copies of premium receipts Ex.A2 to Ex.A3, copies of acceptance letters Ex.A4 and Ex.A5, copy of request letter Ex.A6, copy of death certificate Ex.A7, copy of doctor certificate Ex.A8, copy of letter Ex.A9, additional affidavit of complainant Ex.A10, affidavit of Gurmel Singh Ex.A11, copy of application cum municipal certificate Ex.A12, copies of policy schedules Ex.A13 and Ex.A14 and closed his evidence.<br /> 6. To rebut the evidence of the complainant, the OP1-Aviva Life tendered in evidence affidavit of Ms.Sujata Bhaduri, legal consultant Ex.OP1, copy of proposal form Ex.OP1/A, copy of policy schedule OP1/B, copy of claim form Ex.OP1/C, copy of letter Ex.OP1/D, copy of claim form Ex.OP1/E, copies of letters Ex.OP1/F to Ex.OP1/J and closed their evidence. Similarly, OP2-Yogesh Aggarwal tendered in evidence his affidavit Ex.R1 and closed his evidence. <br /> 7. We have gone through the written arguments filed by Sh.R.K.Goyal ld. counsel for the complainant, Sh.Kuldeep Sahni ld.counsel for OP1-Aviva Life and Sh.R.P.Shahi ld. counsel for OP2-Yogesh Aggarwal and have very carefully perused the evidence on the file.<br /> 8. Sh.R.K.Goyal ld.counsel for the complainants has mainly argued that the repudiation of the insurance claim regarding the death of Smt.Gurmit Kaur insured by the OPs-Aviva Life Insurance is illegal and wrong. This contention of the ld.counsel for the complainant has no merit. Admittedly, Gurmit Kaur wife of Darbara Singh complainant had purchased a life insurance policy bearing no.LLG 1237088 during her life time for Rs.250000/- and paid first premium/ installment of Rs.25000/- while risk commencing from 15.5.2006 to OP1-Aviva Life. That the complainant was the nominee under the said policy. It is also admitted case that unfortunately, Gurmit Kaur insured had died on 09.08.2007. <br /> 9. It is the admitted case of the parties that the OP1-Aviva Life has repudiated the claim of the complainant on the ground that the life assured (policyholder) Gurmit Kaur was suffering from astmatoid bronchitis and had been treated for breast cancer and these facts of pre-existing medical ailment were not disclosed by her in the proposal form at the time of applying for the policy. Had she disclosed these facts at the time of purchase of the policy, the OP1-Aviva Life would not have allowed her to purchase the policy in question. <br /> 10. Now the question for determination is as to whether on the aforementioned ground the OP1-Aviva Life has rightly repudiated the claim of the complainant. The answer to this question is in affirmative. The fact of concealment of material information regarding her pre-existing disease is clear from the Death Claim Form Ex.OP1/E issued by Dr.Rabinder Thapar, Moga. In the column of ‘Name of illness’, it is mentioned as “astmatoid bronchitis Super ventorical therapy cardiac”. Said proposal form is duly signed by Darbara Singh complainant on 8.8.2007.<br /> 11. In the proposal form Ex.P1/A at page no.4 in column ‘Health & Activity Section, the life assured (policy holder) Gurmit Kaur against question no.A, B (ii), (viii) and (xvi) had fully declared regarding her health as under:-<br /> A. Are you currently receiving any medical treatment or are you awaiting medical or surgical consultation, test or investigation?--------No<br /> <br /> B Have you ever had any medical or surgical treatment including investigations, test scans or X-Ray for any of the following illnesses or medical conditions?-----------No<br /> <br /> ii)Any form of cancer, tumor or growth?------- No<br /> <br /> viii)Asthma, bronchitis, pneumonia, TB or any other respiratory or lung disorder?--------No.<br /> <br /> xvi)Do you have any health symptoms or complaints for which a physician has not been consulted or treatment received? eg. persistent fever, unexplained weight loss, loss of appetite, pain, swelling etc.?--------No. <br /> <br /> 12. Moreover, under section 39 of Insurance Act 1938 of the Standard terms & Conditions reads as follow:-<br /> “If the Insured and/or the Policyholder and/or any other Claimant shall make or advance any claim under or in respect of this Insurance knowing the same to be false or fraudulent as regards amount or otherwise, this Insurance shall be void and any benefits hereunder shall be forfeited”<br /> <br /> 13. Thus, the declaration in the proposal form renders the whole contract of insurance void- ab-initio as the complainant had concealed the material fact regarding her earlier operation for breast cancer due to asthmatoid bronchitis. Darbara Singh complainant in his letter Ex.A6 has conceded that his wife had undergone an operation for breast cancer 17 years ago. Thus, it is a concealment of material fact at the time of purchase of policy in question. On this point, the Hon’ble Chhattisgarh State Commision, Raipur in case 2005(1) JRC Page 124 titled as Shekhar SangewarVs. Sr.Divisional Manager, LIC of India and another has held as under:-<br /> “As noticed earlier, in the instant case, it is clear that the appellant suffered from heart disease and that he did not disclose it in the proposal form. The length of treatment and the medical record clearly indicates that the appellant was fully aware about his ailment of heart yet, in his proposal form filled by him on 19.12.1996, he stated that he did not suffer from any disease of the heart etc. and that he did not consult any medical practitioner for the treatment required for more than 7 days. The suppression as above would clearly amount to material suppression of facts within his knowledge. Thus the insured deceased having breached the obligation by giving false information in the proposal form filled by him for obtaining policy, the nominee of the deceased/ appellant can not get advantage of the insurance policy.<br /> Accordingly, the repudiation of the claim of the complainant/ appellant by the respondents appears to be justified and no deficiency in service was committed by insured in repudiating the claim of the complainant appellant, as has been rightly held by the ld.District Forum.<br /> <br /> 14. Ld.counsel for the OP-Insurance Company has also cited authorities of i) Hon’ble Supreme Court of India in P.C.Chako and Anr. Vs.Chairman, Life Insurance Corporation of India and Ors. in 2007(13) SCALE 329. Same view was followed by Hon’ble National Commission, in Life Insurance Corporation of India Vs.Minikalita in 2002(III) CPJ, 10 (NC).<br /> 15. Similar views were held by Hon’ble Haryana State Commission, Chandigarh in Life Insurance Corporation of India Vs. Virender reported in 2006(1) JRC Page 86 and iv) Hon’ble Union Territory Commission, Chandigarh in 2006(2) JRC page 205 reported in Sukhwinder Singh Vs. Life Insurance Corporation of India and others which are also quite applicable to the facts of the present case. <br /> 16. Thus, relying upon the supra authorities, we hold that the OP1-Aviva Life had rightly repudiated the claim of the complainant because they had proved the suppression of material fact of the earlier operation of breast cancer of Gurmit Kaur life assured (policy holder) at the time of getting the policy in question by the policy holder.<br /> 17. On the other hand, the authority: Life Insurance Corporation of India and Others Vs. Smt.Asha Goel and another cited as AIR 2001 Supreme Court 549 cited by the ld.counsel for the complainant before us is quite distinguishable and does not apply to the facts of the present case. Therefore, we hold that there is no deficiency in service on the part of the OP1-Aviva Life Insurance while repudiating the claim of the complainant.<br /> 18. Moreover, the allegations against OP2-Yogesh Aggarwal that he was fully conversant about the pre-existing disease of the policy holder i.e. old treatment of ‘breast cancer’ at the time of filing the proposal form through him has not been substantiated on the file because the complainant has failed to prove any liability of OP2-Yogesh Aggarwal. He was merely an employee of Centurion Bank of Punjab at that time and said bank had tie up with OP1-Aviva Life. Hence we discard the liability, if any, of OP2-Yogesh Aggarwal and find no deficiency in service on his part. <br /> 19. To prove the aforesaid contention, the OP1-Aviva Life produced the affidavit of Ms.Sujata Bhaduri, legal consultant Ex.OP1, copy of proposal form Ex.OP1/A, copy of policy schedule OP1/B, copy of claim form Ex.OP1/C, copy of letter Ex.OP1/D, copy of claim form Ex.OP1/E, copies of letters Ex.OP1/F to Ex.OP1/J. Similarly, OP2-Yogesh Aggarwal produced his affidavit Ex.R1 and we believe & rely upon the same. On the other hand, no reliance could be placed on the affidavits Ex.A1 and Ex.A10 of complainant and Ex.A11 of Gurmel Singh and documents Ex.A2 to Ex.A9 and Ex.A12 to Ex.A14 and discard the same.<br /> 20. The ld.counsel for the parties did not urge or argue any other point before us.<br /> 21. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has no merit and the same is dismissed. The parties are left to bear their own costs. Copies of the order be sent to the parties free of cost and thereafter, the file be consigned to the record room.<br /> <br /> (Bhupinder Kaur) (J.S.Chawla)<br /> Member President<br /> <br /> Announced in Open Forum.<br /> Dated:03.07.2008.<br /> <br /> <br /> <br />