Punjab

StateCommission

CC/11/81

Mrs. Bhupinder Kaur - Complainant(s)

Versus

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

Anita Sharma & Mukesh Sharma

30 Nov 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

 

                   Consumer Complaint No.81 of 2011

 

 

                                                          Date of Institution: 17.10.2011  

                                                          Date of Decision :  30.11.2015

 

Mrs. Bhupinder Kaur w/o late Sh. Sukhdev Singh r/o USA, through attorney Sukhbir Singh s/o Sh. Kirpal Singh r/o 481, Rishi Vihar, Backside Ganda Singh Wala, Majitha Road, Amritsar

 

                                                                                  …..Complainant…..

                                       Versus

 

1.       Bajaj Allianz Life Insurance Company Limited, Regd & Head Office, G.E Plaza, Airport Rroad, Yerwada, Pune 411006.

 

2.       Bajaj Allianz Life Insurance Company Limited, SCO 33, 2nd Floor, District Shopping Complex, B-Block, Ranjit Avenue,                         Amritsar.

 

          2nd Address :

 

          SCO 3, Bala Ji Chambers, District Shopping Complex, B-Block, Ranjit Avenue, Amritsar.

 

3.       Standard Chartered Bank through its Manager, The Mall, Amritsar.

 

                                                                             ….Opposite Parties….

         

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

              Shri V.K.Gupta, Member.

 

Present:-

 

          For the complainant                   :  Sh.Parveen Kataria, Advocate

          For the opposite parties no.1-2 :  Sh. Varun Chawla, Advocate
          For the opposite party no.3        :  Ex-parte

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

          J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The complainant Mrs. Bhupinder Kaur  has filed this complaint U/s 17 (1)(a) of The Consumer Protection Act 1986 (in short the "Act) against the OPs on the averments that Mr. Atul official of OP No.3/bank asked the complainant that OP No.3 and Bajaj Allianz/OP No.1 and 2 have jointly launched many schemes for NRI's and others. It was represented to complainant that there are no formalities and they have issued cheque of Rs.5 lacs only for this purpose. Two cheques of Rs.5 lac each were issued and OPs invested the amount in two policies. The husband of the complainant Sukhdev Singh was issued policy no.106641783 dated 05.09.2008. The premium paid was of Rs.5 lac and the sum assured under policy was Rs.25,00,000/-. In the event of death of assured, the nominee was to get the sum assured along with other benefits and term of the policy was 10 years. The policy is under "Century Plus Unit Linked Plan" in which the premium is invested in various funds i.e. 60% of the premium available for investment was apportioned to Bond Fund, 20% to the Equity Fund-II and remaining 20% was apportioned to Liquid Fund. The fund value of the policy is total value of the units allotted. The husband of the complainant was admitted in the hospital on 05.02.2009 and cancer was detected at last stage and he had expired on 29.03.2009  due to "Non Small Cell Lung Cancer". The OPs repudiated the insurance claim of the complainant, vide letter dated 05.04.2010 on the ground that 'the assured' had withheld correct information regarding his health at the time of taking the insurance policy. The assured was having good health at the time of filling up of the proposal form. The OPs vide letter dated 05.04.2010 repudiated the claim of the complainant regarding policy no.106641783 to deprive the legal right of the complainant to receive the claim amount of Rs.25 lac. On going through the death certificate of the husband of the complainant, it was clear that he died due to "Non Small Cell Lung Cancer" which was detected suddenly in January 2009 without any previous history thereof. The complainant alleged deficiency in service on the part of OP no.1 o 3 in withholding the assured amount to the complainant. The complainant has, thus, filed the present complaint directing the OPs to pay the amount of Rs.25 lac along with all other benefits under the policy no.106641783 with interest @ 18% p.a from the date of death of assured, besides Rs.1 lac for mental harassment and Rs.10,000/- as costs of litigation.

2.      Upon notice, OP no.1 and 2 appeared and filed their separate written reply denying all the averments of the complainant raised in the complaint. It was further averred in the written reply by OP no.1 and 2 that deceased life assured Sukhdev Singh proposed for Unit Linked Bajaj Allianz policy for a sum assured of Rs.25,00,000/-, vide proposal dated 20.08.2008. The risk on the life of Sukhdev Singh was accepted by the OPs on the basis of answers, information, statements, documents and declarations made by him  in the said proposal form and policy bearing no. 0106641783  with date of commencement of risk as 05.09.2008, which was issued to said deceased life assured and original policy bond containing the terms and conditions of the contract was accordingly delivered to him. Sukhdev Singh life assured died on 29.03.2009 by giving rise to death claim under the policy. Smt. Bhupinder Kaur wife of the deceased lodged the insurance claim regarding death of her husband Sukhdev Singh, which was considered by the OPs in view of the terms and conditions of the contract of the insurance. The investigation of the case was conducted by the OPs to ascertain the bonafide of the claim and it was revealed that the deceased life assured Mr. Sukhdev Singh was not maintaining good health at the time of filling up the proposal form for insurance under the policy. From the Medical Attendant Certificate and Certificate from Usual/Family Doctor of the complainant, it transpired that deceased life assured had been taking treatment from Dr. Neel Patel (Hospital of the University of Pennsylvania) U.S.A since 28.08.2007 and was suffering from Diabetes, COPD, CAD, artic valve disorder on the date of proposal form dated 20.08.2008. Dr. Neel Patel (Hospital of the University of Pennsylvania) also provided a certificate of hospital treatment, which was produced by the complainant and the date of first treatment as an outpatient has been mentioned as 28.08.07 for diabetes, COPD (supra). The deceased life assured was on regular treatment of the said disease and ailments thereafter and he expired on 29.03.2009. The deceased life assured fraudulently misrepresented the material information of his pre-existing disease when he filled up the proposal form. The concealment of material facts by the life assured vitiated the contract of insurance. The complaint was also contested on the above-referred concealment material facts even on preliminary objections by the answering OPs by averring that contract of insurance is based on "UBERRIMA FIDES" and life assured Sukhdev Singh suppressed the material facts regarding his health. OP No.1 and 2 also relied upon Section 45 of the Insurance Act, 1938  in this regard. It was further averred on merits by OP no.1 and 2  that risk on the life of Sukhdev Singh assured was accepted by OPs on the basis of information supplied by him in the proposal form regarding his good health. The fact of taking the insurance policy by him was not disputed. The claim of the complainant was contested mainly on the ground that life assured gave wrong answers in the proposal form and suppressed the material fact of his pre-existing ailment. OP no.1 and 2 prayed for dismissal of the complaint.

3.      OP No.3 was set ex-parte, vide order dated 09.01.2012 passed by this Commission.

4.      The complainant tendered in evidence, affidavit of Sukhbir Singh Ex.CA, general power of attorney holder of complainant Ex.CC along with copies of documents Ex.C-1 to Ex.C-6. As against it, OPs tendered in evidence affidavit of Rajinder Singh Kalsi Zonal Legal Manager Bajaj Allianz Life Insurance Company Ex.RW-A and Ex.RW-B along with copies of documents Ex.R-1 to Ex.R-31 and closed the evidence.

5.      We have heard learned counsel for complainant and OP No.1 and 2, as OP No.3 is exparte in this case and have also examined the record of the case.

6.      The affidavit of Sukhbir Singh Ex.C-A is on the record stating that Sukhdev Singh took insurance policy from OPs by paying premium of Rs. 5 lac and the sum assured under policy was Rs.25 lac and policy bearing no.106641783 dated 05.09.2008 was issued to him, whereas complainant Bhupinder Kaur was the nominee. The policy was under "Century Plus Unit Linked Plan", wherein the premium was invested in various funds i..e 60% of the premium available for investment was  apportioned to Bond Fund, 20% to the Equity Fund-II and remaining 20% was apportioned to Liquid Fund. The husband of the complainant Sukhdev Singh life assured was admitted in the hospital on 05.02.2009 and his cancer was detected at last stage and he expired on 29.03.2009 due to "Non Small Cell Lung Cancer". OPs repudiated the insurance claim, vide letter dated 05.04.2010 on the ground that the assured had withheld the material and correct information regarding his health, when he filled up the proposal form. Similarly, supplementary affidavit of Sukhbir Singh Ex.C-B is on the record being attorney holder of Smt. Bhupinder Kaur. Ex.C-1 proves that the date of maturity of the policy was 05.09.18 and apportionment fund value is set out in it. Ex.C-1 also contained the terms and conditions, feature of the policy is that it guaranteed life cover of sum assured plus fund value. There is provision of flexibility of partial withdrawals at any time after three years. Ex.C-3 is the death certificate of Sukhdev Singh proving that he died on 29.03.2009. Ex.C-4 is repudiation letter addressed to complainant from OPs indicating that claim has been repudiated due to non-disclosure of material facts by him. Ex.C-5 is photocopy of passport of Bhupinder Kaur. Ex.C-6 is photocopy of passport of Sukhdev Singh. Ex.CC is power of attorney executed by Bhupinder Kaur in favour of Sukhbir Singh, who tendered his affidavit Ex.CA in this case, as her attorney holder.

7.      To counter this evidence, OPs tendered in evidence affidavit of Rajinder Singh Kalsi Zonal Legal Manager Bajaj Allianz Life Insurance Company Ltd Ex.RW-A. He stated in his affidavit that Sukhdev Singh life assured was not keeping good health during his lifetime and he concealed the material fact of his pre-existing disease regarding his health. He gave wrong answers in the proposal form, despite the fact that he was already suffering from diabetes, COPD, CAD, aortic valve disorder before the date of proposal for insurance dated 20.08.2008. Dr. Neel Patel (Hospital of the University of Pennsylvania) also provided a certificate of hospital treatment, which was produced by the complainant, wherein the date of first time treatment as an outpatient has been mentioned as 28.08.07 for diabetes, COPD. The life assured expired on 29,03.2009, which indicated that the deceased life assured had dishonestly, willfully and malafidely concealed the material information regarding his health and the contract of insurance stood repudiated on that basis. He reiterated the averments of OP No.1 and 2, as pleaded in the written reply filed by them. Ex.R-1 is proposal form filled in by Sukhdev Singh deceased life assured. From perusal of proposal form Ex.R-1, we find that life assured gave negative answers to the following questionnaire in the proposal           form :-

a) Any disease  and disorders of eye, ear, nose and throat?

b) Any diseases and disorders of the nervous system such as but not limited to frequent dizziness, fainting, seizure, weak limbs (temporary or permanent disability), abnormal sight, psychiatric, diseases, brain diseases or neurological system diseases, headaches, vomiting, numbness?

c) Any diseases and disorders of the respiratory system such as but not limited to blood in sputum, tuberculosis, asthma, infected respiratory disease of any respiratory system disease including frequent nose bleeding fever and dyspnoea?

d) Any diseases and disorders of the Cardiovascular system such as but not limited to chest pain, heart disease, high/low blood pressure, artery or blood disease?

e) Any diseases and disorders of the digestive system such as but not limited to frequent indigestion, constipation, ulcers on intestine, gastric bleeding, hernia, hemorrhoid, hepatic disorder, calculus in gall bladder, past experience in abdominal surgery or any disease related to abdominal organs?

f) Any diseases and disorders of the genitourinary system such as but not limited to blood in urine, infected urinary bladder  or tumor, kidney disease, calculus, venereal disease or any disease related to sexual organs or urinary system?

g) Any diseases and disorders of the metabolic and endocrine system such as but not limited to diabetes, hypothyroidism, hyperthyroidism, goitre or other endocrine diseases?

h) Any cancer, tumor, cyst or any other unusual growth?

i) Any diseases and disorders of the musculo-skeletal system such as but not limited to chronic lever, rheumatic lever, rheumatism, gout, spinal curvature or related to spines, joints or musculo-skeleton?

j) Any defect or handicap physically or mentally?

k) Have you ever been tested for or advised to test for HIV infection or suspected to be HIV positive?

l) In the last 5 years, have you ever had, or been advised to have, or are likely within the next 30 days to undergo medical examination or any investigations such as but not limited to blood test, urine test, x-ray, ECG or biopsy, CT scan or test by any other special instrument?

m) Injured, sick, operated, given a medical consultation, given a medical advice on health, care in any hospital?

The submission of OPs is that life assured gave wrong answers to the above-referred questionnaire, despite the fact that he was already suffering from cardio vascular system disorder (supra). Ex.R-3 is death claim (claimant's statement), Ex.R-4 is scanned document by OPs dated 24.12.09, the policy extract for death claim investigation is contained in it. Ex.R-5 is certificate from Usual/Family Doctor of Sukhdev Singh. The main emphasis of the OPs is on Ex.R-5, which is photocopy of scheme Usual Family Doctor. The date of first consultation and cause is 28.08.2007 regarding diabetes, COPD, CAD, aortic valve disorder. We have to examine Ex.R-6 the Medical Attendant Certificate, wherein primary cause of death is malignant neoplasus of lung. The history reported at the time of his earlier consultation was diabetes, COPD, CAD, aortic valve disorder and it was issued, in fact, on 03.02.2010 by the concerned doctor. Ex.R-7 is copy of letter regarding repudiation of insurance claim of the complainant. Ex.R-8 is rejection of death claim under policy no.106641783. Ex.R-9 is requirement of the medical documents under policy from complainant. Ex.R-10 is letter addressed to complainant regarding requirement of treatment record for processing the claim.

8.      The sheet-anchor of the case of the OPs is on original documents from Usual/Family Doctor Ex.R-5 and Ex.R-6 on the record. The repudiation of the claim is Ex.R-7 and representation of the complainant is Ex.R-8. Ex.R-9 is document regarding requirement of submission of medical documents from complainant. Ex.R-10 is letter addressed to complainant by OPs that claim shall be reopened, once the complainant provides the requisite documents of treatment of the DLA. Ex.R-11 and Ex.R-12 is death claim (claimants statement), Ex.R-13 is consent given by Bhupinder Kaur for handing over copies of indoor/outdoor patient on the record for the treatment of Sukhdev Singh. Ex.R-15 is cremation report of Sukhdev Singh that he was cremated after his death on 29.03.2009 at 1.08 AM. Ex.R-16 is driving license of Sukhdev Singh. Ex.R-18 is cremation report in original. Ex.R-19 is form of application to dispense with legal evidence of title. Ex.R-20 is certificate of death of Sukhdev Singh. Ex.R-21 is indemnity bond. Ex.R-22 is document executed by Sukhbir Singh attorney of complainant Bhupinder Kaur that Sukhdev Singh life assured expired on 29.03.09 in Hospital of the University of Pennsylvania. Ex.R-23 is photograph of Sukhdev Singh. Ex.R-24 is copy of passport of Sukhdev Singh. Ex.R-26 is statement of income, assets and liabilities. Ex.R-27 is questions to be answered by non-resident of India for life insurance. Ex.R-29 is NRI Clause. Ex.R-30 is copy of cheque by Sukhdev Singh to Bajaj Allianz. Ex.R-31 is discharge document of Sukhdev Singh by University of Pennsylvania Health System. This document is most important document on the record regarding treatment provided to him in the hospital. It is recorded that Sukhdev Singh with history of metastatic nonsmall cell lung cancer. Now with diplopia, left greater than right, evaluate for stroke or mass effect. Affidavit of Sh. Rajinder Singh Kalsi Zonal Legal Manager Bajaj Allianz Life Insurance Company Ex.RW-B on the record.

9.      From evaluation of above-referred evidence on the record, we have come to the conclusion that documents issued by Hospital of the University of Pennsylvania U.S.A cannot be presumed to be  false documents. They have clearly proved it on the record, vide Ex.R-5 certificate from usual/family doctor that Sukhdev Singh life assured firstly consulted on 28.08.07 for Diabetes, COPD, CAD, artic valve disorder in Dr. Neel Patel Hospital. Ex.R-6 medical attendant certificate has further proved that Sukhdev Singh life assured knew the diseases of Diabetes, COPD, CAD, artic valve disorder. This document has, thus, proved that Sukhdev Singh had gone to doctor in regard to above consultation since August 2007 of the above diseases. We find no ground to ignore the document Ex.R-5 issued by usual/family doctor and medical attendance certificate Ex.R-6 issued originally by the above doctor of Neel Patel Hospital in America of deceased. The life assured suffered from last stage of cancer, as per affidavit of Sukhbir Singh on the record. The life assured gave wrong answers to proposal form with regard to his health, which was filled up by him on 20.08.08. The life assured, thus, already knew that he was suffering from material diseases, but he fraudulently gave the wrong answers stating "No" to such diseases. We have, thus, come to the conclusion that life assured knew that he was suffering from above diseases, as detailed in his family doctor certificate on the record, when he took the insurance policy. The contract of insurance is based on "UBERRIMA FIDES", bonafide and correct information is required to be given at the time of taking up the contract of insurance by the proposer, where the decision of the insurance company depends upon information provided by the life assured and if life assured knowingly and fraudulently provided wrong information then it renders contract of insurance void. We find that life assured suppressed the material facts from their disclosure fraudulently and he knew at the time of making statement that the information supplied by him was false and he suppressed the facts, which were material for him to disclose. We refer to law laid down in Mithoolal Nayak vs. LIC reported in AIR 1962 Page 814 by Supreme Court on this point. Reference may also be given in Satwant Kaur Sandhu vs. New India Assurance  Company Ltd, reported in 2009CTJ 956 (Supreme Court) (CP)  and "P.C Chacko and another Vs. Chairman Life Insurance Corporation of India and other" reported in 2007(VI) CLT 2009 (SC) decided on 20.11.2007.

10.    Since we have returned this finding that life assured knowingly suppressed the material information, when he took the proposal form from the insurer with regard to his ailments, hence it would vitiate the contract of insurance, which is based on the principle of "UBERRIMA FIDES". The complainant is, thus, not entitled to any claim, since repudiation of the insurance claim by OPs no.1 and 2 is justified being reasonable on the above grounds.

11.    In the light of our above discussion, the complaint filed by complainant is hereby dismissed without any order as to costs

12.    Arguments in this complaint were heard on 27.11.2015 and the order was reserved. Now the order be communicated to the parties.

13.    The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                          (V.K.GUPTA)

                                                                                MEMBER

 

November 30, 2015.                                                                

(ravi)