Haryana

Karnal

589/2012

Kela Devi W/ Mahavir - Complainant(s)

Versus

Bajaj Allianz Insurance Company Limited - Opp.Party(s)

Sh. J.B.S. Chouhan

12 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                               Complaint No.589 of 2012

                                                               Date of instt.: 13.12.2012

                                                               Date of decision: 12.05.2016

 

Smt. Kela Devi widow of Sh.Mahavir resident of village & P.O. Amritpur Kalan, tehsil & District Karnal.

.                                                                                       ……..Complainant.

                                                Versus.

1. Bajaj Allianz, Life Insurance Company Ltd; SCO no.226, sectgor -12 Urban Estate, Karnal-132001.

2. Bajaj Allianz Life Insurance Company Ltd; Regd. & Head Office GE Plaza, Airport Road, Yerawada, Pune-411006.

                                                                   ………… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

Before          Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-         Sh.Sunil Sharma Advocate proxy counsel for the complainant.

                    Sh. N.K. Zak Advocate for opposite parties.

 

 ORDER:

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that her husband Mahavir (deceased life assured) had obtained insurance policy bearing no.0252252808 from the opposite parties, for the period of 27.2.2012 to 27.02.2022. He expired on 23.3.2012 due to heart attack. After his death, she being the nominee informed the opposite parties and lodged claim as per terms and conditions of the policy. Mr. Tommer agent of the opposite parties visited her house and made enquiry regarding death of her husband and after due investigation took all the relevant documents i.e. policy, copy of ration card, identity card, photographs etc. and also took an amount of Rs.9000/- from her and assured that the claim would be paid very soon. However, to her utter surprise the opposite parties repudiated her claim, vide letter dated 10.10.2012 on false and frivolous grounds. Thereafter, she got served a legal notice dated 17.10.2012 upon the opposite parties, but the same also did not yield any result. Repudiation of her claim by the opposite parties amounted to clear deficiency in service, which caused her mental pain and harassment, apart from financial loss.

2.                Notice of the complaint was given to opposite parties, who appeared and filed written statement controverting the claim of the complainant. Objections have been raised that the complainant has no locus standi and cause of action; that the complainant has not approached this forum with clean hands; that this forum has no jurisdiction to entertain and decide the present complaint as  intricated questions of law and facts are involved, which cannot be decided in summary manner; that the complaint is bad for mis joinder, non-joinder of necessary parties and that the complaint is not legally maintainable.

                   On merits, it has been submitted that the deceased life assured was suffering from Coronary Obstructive Pulmonary Disease (COPD) apart from other diseases and was admitted in the General Hospital, Karnal even on the date of proposal for insurance dated 25.2.2012. He remained admitted in hospital from 22.2.2012 to 29.2.2012. The material facts regarding his health were known to him at the time of submitting proposal form on 25.2.2012, but he fraudulently gave wrong and false information/ answers to the questions of the proposal form just to induce the opposite parties to accept the risk on his life. Had he disclosed his true state of health known to him, the risk on his life would not have been accepted by the opposite parties. Thus, the claim under the policy was legally and rightly repudiated in view of provisions of section 45 of the Insurance Act for non-disclosure of the material facts. It has also been pleaded that the deceased life assured had assigned the policy in favour of one Pawan Kumar and thus, the right, title and interest under the policy was transferred to the said assignee, therefore, nomination automatically stood cancelled.  The other allegations made in the complaint have also been denied.

3.                In evidence of the complainant, her affidavit EX.CW1/A and documents Ex.C1 to C10 have been tendered.

4.                On the other hand, in evidence of the opposite parties, affidavit of Pawan Kumar Sharma Manager Ex.OI and documents Ex.O2 to Ex.O12 have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                From the pleadings and evidence of the parties it is established that the deceased life assured had obtained life insurance policy from the opposite parties, which was valid for the period of 27.2.2012 to 27.2.2022. However, he expired on23.3.2012 due to heart attack. Complainant being the nominee lodged the claim with the opposite parties, which was repudiated on the ground that the deceased life assured mis-represented/concealed the material facts regarding his health in the proposal form.

7.                Learned counsel for the opposite parties laid emphasis on the contention that contract of insurance is based upon the principle of uberrima fide i.e. utmost good faith and concealment of any material fact renders the policy void. The deceased life assured submitted proposal form on 25.2.2012, the copy of which is Ex.C8 and in the said proposal form he did not disclose that he was suffering from any disease at that time, rather gave answers to all the questions in negative, asserting that he was having good health. However, the document  Ex.O2 to Ex.O12 are sufficient to prove that he was admitted in the General Hospital Karnal on 22.2.2012 for the problem of COPD and referred to Post Graduate Institute of Medical Sciences Rohtak for further management on 25.2.2012, he was again admitted in General hospital Karnal on 26.2.2012 and remained admitted there upto 29.2.2012. The proposal form was submitted by him on 25.2.2012 after discharge from General Hospital Karnal but in the proposal form he did not disclose about his disease and admission in the hospital. Therefore, the claim of the complainant regarding death of the deceased life assured was rightly repudiated by the opposite parties. In support of his contention he placed reliance upon Satwant Kaur Sandhu Versus New India Assurance company IV (2009) CPJ 8 (SC)  and Life Insurance Corporation of India and another Versus Bimla  Devi revision petition no.3806 of 2009 decided by Hon’ble National Commission on 12.8.2015.

8.                To wriggle out of the aforesaid contention, the learned counsel for the complainant vehemently argued that the documents Ex.O2 to O12 are only Photostat copies and the opposite parties have not produced the original record of treatment, if any. Moreover, no doctor or record clerk of General Hospital Karnal has been examined to prove that the said Photostat copies are true copies of the medical record maintained in the hospital, therefore, no importance can be attach to these documents. It has further been argued that the deceased life assured was examined by the medical officer of the opposite parties before issuance of the policy and he did not submit any report that the deceased life assured was suffering from COPD or any other ailment at the time of submission of the proposal form. It has lastly been argued that the repudiation of the claim by the opposite parties was illegal and unjustified and the same amounted to deficiency in service.

9.                 In Satwant Kaur Sandhu’s case (Supra)   the policy holder was suffering from chronic diabetic renal failure, but that fact was not disclosed while obtaining the policy. It was held by the Hon’ble Supreme Court that term “material fact” is not defined in the Insurance Act and therefore, it has been understood and explained by the courts in general term to mean as any  fact which would influence the judgment of a prudent insurer in fixing premium or determining whether he would like to accept the risk.  Any fact which goes to the root of the contract of Insurance and has a bearing on the risk involved would be material.   As cited in Pollock and Mulla’s Indian Contract and Specific Relief Act any fact, the knowledge or ignorance of which would materially influence an insurer in making contract or estimating the degree and character of risk in fixing rate of premium is a material fact. If, the proposer   has knowledge of  such facts, he is obliged to disclose it  particularly while answering the questions in the proposal form. Needless to emphasis that any inaccurate answer will entitle to insurer to repudiate his liability, because there is clear term that information sought for in the proposal form is material for the purpose of a entering into a contract of Insurance. It was further held that contract of insurance is a uberrima fide meaning a contract of utmost good faith of the assured.  Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine, whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to fact which are known to the applicant and not  what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. In Bimla Devi’s case (Supra)  the deceased had undergone an operation for right kidney stone on 18.5.1998 and had availed medical leave for 46 days i.e. from 16.5.1998 to 30.6.1998.The deceased had also taken treatment from Apollo Hospital, New Delhi. The claim was repudiated by the Corporation on the ground that deceased had concealed vital facts regarding his health at the time of making proposal for insurance,  therefore, the complainant was not entitled to any claim under the policy. It was held by Hon’ble National Commission that upshot of the entire discussion is that in a contract of Insurance any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a “material fact” .If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material fact for the purpose of entering into a contract of insurance.  Under the facts and circumstances of the case, it was held that it was clear that the insured had suppressed the material information about the procedure he had undergone in 1998  and his  medical condition thereafter, therefore, the claim was rightly repudiated.

10.              The facts of the present case are to be analyzed keeping in view the proposition of law laid down in the aforediscussed authorities. The documents Ex.O2 to O12 indicate that the deceased life assured was admitted in General Hospital Karnal on 22.2.2012 with the problem of COPD,  he was referred to Post Graduate Institute of Medical Sciences, Rohtak for further management on 25.2.2012 and was again admitted to General Hospital Karnal on 26.2.2012 and remained admitted there upto 29.2.2012. No doubt the opposite parties have not produced the original record regarding Ex.O2 to O12 but these Photostat documents of the original record cannot be discarded, merely for this reason. This forum is to follow the summary procedure, therefore, documents produced before it are not required to be proved by observing mode of proof as envisaged under the provisions of the Evidence Act. The original record must be in the custody of the record keeper of the General Hospital Karnal and the copy of the same might have been given to patient i.e. the deceased life assured at the time of its discharge. If, the complainant thought that the documents produced by the opposite parties are not genuine, she could lead evidence in this regard, but no evidence worth the name has been produced to doubt the genuineness of the copies of medical record of the deceased life assured produced by the opposite parties. Therefore, the argument advanced by the learned counsel for the complainant in this regard cannot be accepted. No evidence has been led by the complainant that any medical officer of the opposite parties examined the deceased life assured before issuance of the policy. Even if the deceased life assured was examined by medical officer of the opposite parties, then also he was bound to disclose all the material facts regarding condition of his health in the proposal forum but he knowingly concealed about his disease. Facts and circumstances are sufficient to prove that after discharge from General hospital Karnal on 25.2.2012 he submitted proposal form and obtained life insurance policy from the opposite parties by concealing the material fact regarding his ailment. Therefore, the policy became void on account of concealment of material facts by the deceased life assured in the proposal form and in such a situation, repudiation of the claim of complainant by the opposite parties cannot be considered as illegal or unjustified in any manner.

11.              As a sequel to the foregoing discussion, we do not find any merit in the present complaint. Therefore, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 12.5.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member