DATE OF FILING: 02.01.2013
DATE OF DISPOSAL:10.10.2017
Dr N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging deficiency in insurance service against the Opposite Parties ( in short the O.Ps) and for redressal of her grievance before this Forum.
2. The brief facts that are relevantly required for disposal of this consumer dispute are that the present complainant is the wife of deceased Niranjan Gouda, S/o Late Rahas Gouda who obtained a policy from O.P. No1 &2. The O.Ps issued a policy bond bearing No.0235704567 under the name Bajaj Allianz Invest Gain Platinum in favour of deceased policy holder on 22.10.20111 on receipt of Rs.8209.92 paisa as annual premium for an assured sum of Rs.1,50,000/- with minimum death benefit of Rs.6,00,000/- for a term of 20 years. The present complainant was nominated as nominee of the said policy. It is stated that due to ill luck the policy holder suffered from fever, headache and vomiting on 6th November 2011 and consulted a doctor namely Dr.Krushna Prasad Mishra who treated him for two days after conducting required blood test. When the condition of the patient did not improve, he was referred to MKCG Medical College & Hospital, Berhampur for better treatment on 8th November 2011 but unfortunately Niranjan Gouda was succumbed to death on 9th November 2011 at his residence. After death of the decease policy holder, the nominee made a death claim before O.P.No.1 who repudiated the claim of nominee complainant on 25th August 2012 on the ground that deceased Niranjan Gouda “procured the policy by submitting fake documents”. Thereafter the complainant made an appeal before Claim Review Committee and Claim Review Committee in their letter dated 29.10.2012 rejected the claim of complainant holding that the said policy holder submitted a fake driving license during the proposal stage. When the O.Ps did not give any heed to settle the claim of the complainant, the nominee complainant has filed this consumer complaint in this Forum alleging deficiency in service on the part of the O.Ps and prayed to direct the O.Ps to pay the minimum death benefit as per the terms and conditions as stipulated in the policy bond along with compensation of Rs.3,00,000/- towards agonies suffered by the complainant physically, mentally and financially and to pay Rs.5,000/- as cost of litigation in the best interest of justice.
3. Upon notice the O.P.No.1&2 appeared through learned counsel Shri P.J. Padhi, Advocate and filed version jointly. In the written version/ argument it is stated that one Niranjan Gouda had applied for an insurance policy to the O.P. insurance company by filing the proposal form, submitting the photocopies of different documents as “proof” and on payment of the insurance premium and after submission of the requisite documents, based on the declarations made in the proposal form and in utmost good faith, the O.P. insurance company issued an insurance policy bearing No. 235074567 with the date of commencement as 22.10.2011. The said policy covered the life of the said Niranjan Gouda and insurance policy bond was issued in favour of the life assured. The said policy bond contained the terms and conditions governing the insurance policy, which in itself became a contract upon the receipt of the policy bond by the said life assured. The said Niranjan Gouda died on 09.11.2011 as per the death certificate submitted by the complainant. The death of the life assured was informed to the O.P. Company by a death claim where upon the complainant requested the O.Ps to release the claim. Thereafter the O.Ps on receipt of the claim enquired the matter in details and after due enquiry it was found that there was not only concealment of material fact but also some serious findings had came to the knowledge of the O.Ps. The photocopy of the driving license which was submitted by the deceased as proof of date of birth at the time of applying for the policy based on which the risk and liability was evaluated by the underwriting team of the insurance company proved to be a fake document hence the death claim was repudiated. On presentation of the photocopy of the driving license, the Licensing Authority of Ganjam, Chatrapur had certified that the same was not issued from their office. It is pertinent to mention here that the contract of insurance being based on the principle of “Uberima Fides” i.e. utmost good faith, the deceased insured was under the solemn obligation to disclose all material facts relating to his health at the time of filling up of the proposal form, but the deceased insured purposefully suppressed the materials facts at the time of filling up of the proposal form and obtained the policy in question by playing fraud on the O.Ps Insurance Company, thus such policy was void ab-initio as per law. The O.Ps Insurance Company rightly repudiated the claim of the complainant vide its letter dated 25.08.2012 which was in consonance with the terms and conditions of the policy and the applicable position of law. Thereafter the complainant approached the Claims Review Committee with the same plea and the Claims Review Committee turned down the request vide its letters dated 29.10.2012. Therefore, there is neither any deficiency in service nor any unfair trade practice on the part of this O.Ps so as to entitle the complainant for any claim or compensation. The fact of repudiation of the claim was intimated to the claimant by letter dated 25.08.2012. It was mentioned in that letter that had the fact of earlier ailment been disclosed by the assured, the Company would not have covered the risk for the policies under the same terms and conditions. Thus, the claims were repudiated due to misrepresentation of material facts. Further, opportunity was provided to the claimant to write to Insurance Ombudsman if she was not satisfied with the decision but the claimant did not explore that opportunity, rather to make wrongful gain filed this false and vexatious complaint. The decision of the Company was based on contract of insurance and as such no deficiency in service or negligence whatsoever can be attributed to the answering O.Ps, rather the complainant is guilty of suppression of material facts and the complainant has failed to come with clean hands and as such the complaint is liable to be dismissed with exemplary cost.
4. Notice was duly issued against the O.P.No.3 but he neither chooses to appear nor filed any written version hence he was declared exparte on 14.9.2016 and was proceeded accordingly.
5. On the date of hearing, we heard the learned counsel for the complainant as well as for the O.P. No.1 & 2. We perused the pleadings of parties and also gone through the materials placed on the case record. We have also verified the material documents filed by both parties placed on the case record. On perusal of documents, it appears that in this case, the deceased policy holder obtained the policy in dispute on 22.10.2011 and died on 09.11.2011. On death of deceased policy holder, the nominee complainant submitted the claim before O.P.No.1 & 2 and requested for settlement of death claim under the policy. However, the O.P.No.1&2 repudiated the death claim of nominee complainant on 29.10.2012 on the ground of suppression of material fact during taking of policy and contended that the deceased policy holder has deceived the Insurance Company since the deceased policy holder took the policy on 22.10.2011 and died on 09.11.2011. It is further submitted by the learned counsel for O.P. No.1 &2 that the deceased had suppressed the material fact by not disclosing the disease particulars, treatment history and related documents and being an early claim it is also not covered under Section 45 of the Insurance Act. In view of suppression of material fact and false declaration, the contract of insurance becomes void. It is also submitted that the deceased policy holder took the policy on production of fake documents like driving license in support of his date of birth during proposal stage. It is further contended that the deceased policy holder in the proposal form had disclosed that he was doing rice business but in fact on investigation it was revealed that he was a wage worker. In sum, the deceased was suppressed material facts during the time of taking of the insurance policy in dispute. In view of the above fact and circumstances, the issues that have been crop up for consideration by this Forum as to - whether in this case there was suppression of any material fact by the deceased policy holder? Whether the O.P. No.1&2 are justified repudiating the claim of the nominee complainant? And, whether the complainant is entitled for any benefit under the policy in dispute?
6. To address and adjudicate the first issue in dispute as set above, we would like to say that in this case as per the materials placed on case record like policy bond and premium receipt, the complainant obtained the policy on 22.10.2011 for 20 years on payment of Rs.8,209.92 paisa towards premium for an assured sum of Rs.1,50,000/- along with minimum death benefit of Rs.6.00 lakhs under policy bearing No.0235704567. It is a fact not in dispute that the deceased policy holder died on 9.11.2011 as is evidence from the death certificate placed as Annexure-7 on the case record. The policy was issued by the O.Ps on 22.10.2011 and the deceased policy holder died on 9.11.2011 i.e. only after 18 days of issuance of policy in dispute. In this case, the learned counsel for the O.P.No.1&2 has submitted documents like copy of NREGS Job Card bearing No.OR-12-002-002-004/15271, previous treatment sheet of deceased policy holder where he was referred to M.K.C.G. Medical College & Hospital for further treatment. He has also filed photocopies of pathological test reports and medicine bills to prove the fact that he was undergoing treatment prior to taking of the policy in dispute. However, the learned counsel for the complainant vehemently argued that there was no material suppression of previous disease since during taking of said policy the doctors of O.Ps had examined the deceased policy holder and issued the policy bond. The O.Ps can’t avoid their liability on fictitious ground of suppression of material disease. He has submitted original copies of transfer certificate of U.P. School, B.Nuagam, Ganjam bearing No.41, death certificate and PAN Card bearing No.BBWPG3504M. He has also cited a catena of decisions of Hon’ble National Commission in support of his case reported in IV (2003) CPJ 16 (NC) in the case of LIC of India versus Smt. Chandra Baghrecha, III (1997) CPJ 106 (NC) in the case of Smt. Alia Begum versus LIC of India, I (2005) CPJ 79 (NC) in the case of National Insurance Co. Ltd. versus Sant Kumar Goyal, II (2005) CPJ 32 (NC) in the case of Surinder Kaur and Ors versus LIC of India & Ors, and II (1997) CPJ 3 (NC) National Insurance Co. Ltd. Versus Pavan P. Sahani & Ors respectively and requested to consider the claim of the complainant.
7. We have perused the above documents submitted by the learned counsel for the complaint as well as for the O.P.No.1&2. On perusal of documents filed by the complainant we find that the driving license of the deceased policy holder is disputed by the O.Ps. The Job Card and other documents like treatment papers and pathological test reports are also disputed by the learned counsel for the complainant. The date of birth of the deceased policy holder is also disputed by the O.P. No.1&2 and on the contrary the complainant denies having any driving license or previous disease. In the foregoing context, in our view, we would like to say that this Forum has got no jurisdiction to adjudicate the disputed factual matters in summary proceeding hence we are not inclined to examine the disputed documents submitted by the complainant as well as by the O.P. No.1&2 in support of their case respectively in this summary proceeding. On the other hand, we are not convinced by the arguments of the learned counsel for the complainant that the complainant was not suffering from any disease and he was not undergoing any treatment since he has failed to prove the same. He has not submitted any cogent and convincing documentary evidence to the effect that he was not suffering from any disease prior to taking of the insurance policy in dispute and as claimed he also failed to submit the documents with regard to his medical checkup by the doctors of O.Ps prior to taking of the insurance policy in dispute. It is also a fact as discussed above the O.P. No.1&2 has submitted the copies of previous treatment papers to support his argument. Moreover, in this case, the deceased policy holder was died only after 18 days of issuance of the insurance policy which is not disputed or denied. Hence, we are convinced that a hale and healthy person can’t die soon after taking of the insurance policy unless he was suffering from any disease. We therefore feel that there was suppression of material fact regarding his health and disease during taking of the policy which was not disclosed during underwriting of the risk by the insurer. Besides, as per the arguments of O.Ps, the date of birth and profession of the of the deceased policy holder are also in dispute. In our view, insurance policies are issued on good faith and one is liable to supply correct and concrete information to the insured during taking of insurance policy and the O.Ps accordingly can underwrite the risk of the insured. It is also a fact not in dispute that the complainant failed to produce any convincing documentary evidence to the effect that he had undergone medical test by the O.Ps prior to issuance of the insurance policy in dispute. Nothing has been place on record to hold otherwise and we on this account only convinced that there was suppression of material fact by the deceased policy holder. However, the learned counsel as discussed above has submitted a catena of citations in support of his case and copies of which are placed on the case record. On care perusal of the aforesaid decisions, we find that in the case of LIC of India versus Smt. Chandra Baghrecha, the deceased was examined by the Doctors of O.Ps where as in the instant case the deceased policy holder was not examined by the Doctors of insurance company since nothing placed on the record to prove this fact. In the case of Smt. Alia Begum versus L.I.C. of India, the Hon’ble National Commission has held that the ‘onus probandi’ is on the O.Ps to prove the suppression of material fact. In this case, the learned counsel for O.Ps has submitted documents which reveal suppression of disease and nothing is produced before us by the complainant to hold otherwise. The citation in the case of National Insurance Co. Ltd versus Sant Kumar Goyal, is not at all applicable to the present case since the fact that case is totally different from that of the present case. Similarly, in the case of Surinder Kaur & Ors versus LIC of India & Ors, it was heavily relied on onus probandi on the O.Ps to prove that there was suppression of material fact by the deceased policy holder. In the instant as discussed above, it was proved that there was suppression of material disease by the deceased policy holder. Thus, the said citation is also not applicable to the instant case due to factual difference of both cases. The citation in the case of National Insurance Co. Ltd versus Pavan P. Sahani & Ors, is a different case since the fact of the said citation is completely different from that of the present case in hand. Hence, on careful going through the citations as discussed above, we find that in all the above decisions, facts are distinctly different that of the present case. Thus, the above decisions are not applicable to the instant case due to distinguished factual difference of cases, so we are not inclined to accept the aforesaid decisions in the instant case hence rejected.
8. Insofar as the second issue as above is concerned, we would like to view that the O.Ps have repudiated the claim of the complainant on the ground of suppression of material fact and the contract is voidable due to suppression of disease by the deceased policy holder since insurance policy is issued on good faith. When a contract is void due to suppression of material facts, the O.Ps are not entitled to retain the premiums paid by the deceased policy holder. Though the O.Ps are justified repudiating the claim of the complainant but they are not justified retaining the premium of the deceased policy holder since when the contract is void the O.Ps can’t retain the premiums paid under a void policy. In this case, as we are convinced, the contract of insurance is void if material fact is not disclosed but the deceased insured had deposited a handsome amount of Rs.8209.92 deposited as premiums under a void agreement. When the contract of insurance is void or invalid, the O.Ps can’t accept the amount of premium under a void agreement. In our considered opinion, we would like to state that though there was no wrong repudiating the claim of the nominee complainant but the O.Ps are guilty of non-refund of premium amounts to the complainant.
9. With regard to the third issue as framed above, whether the complainant is entitled to any benefit under the policy in dispute, we would like to state that insurance policy obtained by false representation would be void and claimant would get nothing but amount of premium deposited. In this case, the Insurance Company though received the amount under a void agreement but did not prefer to refund the premium amount to the nominee complainant while repudiating the claim after getting known that the premium was received under a void contract. The equity, justice and good conscience say that it should be refunded to the nominee complainant. This is a welfare society and in a welfare state, the Insurance Company is to help the legal representatives of the deceased in their crisis period and not to even digest the deposits made by them on technical and legal grounds. Our finding is fortified by the decision of Hon’ble State Commission (Uttaranchal) in the case of Life Insurance Corporation of India versus Smt. Kamla Devi reported in (2004) 10 CLD 145(SCDRC-Uttaranchal).
10. With regard to cost, in this case, the O.Ps are jointly liable to pay cost of litigation to the complainant since the Opposite Parties have forced the complainant to file this consumer complaint to assert her rights. As far as cost of litigation is concerned, we feel that a sum of Rs.3,000/- will be just and proper in the fact and circumstances of the case since the complainant has hired the services of a professional Advocate and has also paid court fee and also incurred other expenses during filing of this consumer complaint. However, in the foregoing fact and circumstances we are not inclined to pass any orders as to payment of compensation as claimed by the complainant. In the light of the above discussions, decision and taking into account to the facts and circumstance of the case in hand; we partly allowed the case against O.Ps who are jointly and severally liable to refund the premium amount to the complainant.
11. In this case, the complainant has also made the O.P.No.3 as a party to this dispute but without any specific prayer against her to be awarded by this Forum. As we know that she was an agent and during the proceeding she failed to put her appearance hence declared as exparte on 14.09.2016 and even during the course of argument the learned counsel did not claim any relief angst her. On perusal of the complaint and arguments of the learned counsel, we corroborated the same and find that there is no claim against the O.Ps No.3, hence the case of complainant is dismissed against O.P.No.3 exonerating the liability.
12. In the result, the case of complainant is partially allowed against O.P.No.1&2 and ordered to be dismissed against O.P.No.3. We direct the O.P.No.1 & 2 who are jointly and severally liable to refund of Rs.8,209.92 paisa together with litigation cost of Rs.3,000/- to the complainant within two months from the date of receipt of this order failing which the complainant is at liberty to recover the same under the relevant provisions of Consumer Protection Act, 1986. No order as to compensation. The case of the complainant is disposed of accordingly.
13. The order is pronounced on this day of 10th October 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
