Order-16.
Date-27/04/2018.
Shri Anupam Bhattacharyya
The instant complaint has been filed by the complainant u/s.12 of the C.P. Act, 1986 praying for direction upon the OPs to pay Rs.3,55,230/- along with interest at the rate of18 percent p.a., Rs.1,00,000/-for Complainant for physical and mental harassment and Rs.20,000/- for litigation cost.
The Complainant’s case, in brief, is that complainant is the nominee of the insurance policy of the deceased insured Late Sitansu Mukherjee. The policy No.501-1352357 was issued on 03-10-2013 assured sum of Rs.1,92,000/- and second policy No.5014151723 for the assured sum of Rs.1,63,230/- was issued on 20-02-2016 through TPA (OPs 3 and 4)/ The insured was diagnosed with high blood pressure in the year 2010 and was taking a medicine and he was physically fit and had not suffered any chronic ailment. The proposal form were filled-up by the Agents one Priya Verma and Souvik Mitra and the same was duly signed by the insured. The treatments of the insured during his lifetime were done under ESIC Scheme and he was a patient of minor hypertension. In spite of the details provided by the insured in respect of his health condition, OPs did not conduct any medical examination before issuing the said policies. The insured died on April 16, 2016. On May 17, 2016 Complainant lodged a claim against those policies and Customer Care department issued necessary receipt dated May 19, 2016 and in the month of July, 2016. In June 27, 2016 Complainant received a repudiation letter on the ground of ‘non-disclosure of material information at the time of making the proposal’. The Complainant being aggrieved and dissatisfied had raised objection letter dated January 27,2017. The OPs 1, 2 and 5 failed and neglected to give any reply against the letter of Complainant. The assertion of the OPs are concocted and baseless. Hence, the instant Complainant’s case.
The written version filed by the OP1, in brief, is that the Complainant had suppressed that at the time of taking the insurance policy he was suffering from COPD (Chronic Obstructive Pulmonary Disease), which is a type of obstructive lung disease characterized by a long term poor airflow and is a progressive disease. The OP Insurance Company as per the terms and condition of the Insurance Policy which is duly approved by the IRDA being the regulatory body repudiated the claim for suppression of the material fact. The policy is a legal contract between the policy holder and the insurer who was under an obligation to disclose the medical details in the Proposal Form but the said policy was obtained by suppression and mis-representation of facts. OPs have rightly repudiated the claim of the Complaint on the ground of suppression of materials facts. There is no cause of action to file the present case and, as such, the same cannot be termed as deficiency in service. The Complainant has filed the instant complaint with mala fide intention and for that the OP1 prays for dismissal of the instant complaint case. Hence, the instant written version.
OPs 2 to 5 did not file any written version. Hence, the case is heard ex parte against them.
Considering the pleading of both sides the following points have been raised
Points for Decision
- Whether the case is maintainable in its present form and law?
- Whether there is any cause of action to file the case?
- Whether the case is barred by limitation?
- Whether the complainant is entitled to get the relief as prayed for?
- What other relief/reliefs the complainant is entitled to get?
Decision with Reasons
Point Nos.1 to 5 . All the points are taken up together for the brevity of discussion and convenience.
The instant complaint is for payment of the assured policy amount of Rs.3,55,230/- along with interest at the rate of18 percent p.a., Rs.1,00,000/-for causing physical and mental harassment and Rs.20,000/- for litigation cost.
The complainant’s main case is that husband of the complainant, since deceased obtained two Life Insurance Policies on 03-10-2013 and 20-02-2016 from OPs and paid premiums time to time before death. In the year 2010 the complainant was suffering from hypertension. After death of husband complainant filed the claim before the Insurance Company OP but they repudiated the claim on the basis of ‘non-disclosure of material information at the time of making the proposal’ though before commencement of the policy insured informed the same to the OPs but the OPs did not conduct any medical examination before issuing the said policies. Complainant had raised objection by letter dated 24-01-2017 but OPs failed and neglected to give any reply.
On the other hand, OPs main case is that the complainant is not entitled to get any benefit due to non-supply of material information at the time of making the proposal by the insured. Insured was a patient of chronic obstructive pulmonary disease which is a type of obstructive lung disease. The policy holder was under an obligation to disclose the medical details in the Proposal Form but the said policy was obtained by suppression and mis-representation of facts. There is no deficiency on the part of the OPs and complaint is liable to be dismissed.
To prove the case both the parties have adduced Evidence on Affidavit and they have filed questionnaires and replies vis-à-vis along with relevant documents in support of their respective case.
Admittedly, the husband of the complainant had first policy on 03-10-2013 for assured sum of Rs.1.92 lakhs and second policy on 20-02-2016 for assured sum of Rs.1,63,230/-.
It is also admitted position that the premium of those policies were paid accordingly and the same are valid policy.
The complainant has claimed before the OP Insurance Company on 17-05-2016 for policy amount after death of her husband on 16-04-2016.
The OP Insurance Company has repudiated the said claim on 27-06-2016 on the ground of suppression of material fact in the proposal form at the tune of taking the policy as he was suffering from COPD.
Where, the complainant’s case is that the medical issue as to suffering from COPD was not diagnosed before availing the said policies, the insured was a patient of minor hypertension only and the same was diagnosed in the year 2010 and was physically fit and was not suffering from any chronic ailment.
On the other hand, the Ld. Lawyer for the OP Insurance Company has advanced argument that the claim of the complainant was repudiated for suppression of material facts regarding his health condition at the time of taking the insurance policy where the life assured had suppressed at the time of taking the insurance policy the fact that he was suffering from COPD which is Chronic Obstructive Pulmonary Disease and is a type of obstructive lung disease, characterized by long-term poor airflow and is a progressive disease and the Insurance Company repudiated the claim after proper application of mind and as per the terms and condition of the policy the same cannot be termed as deficiency in service.
He has referred the reported decision in Ravneet Singh Bagga vs. KLM Roya; Dutch Airlines [(2000) 1 SCC 66] where the Hon’ble Supreme Court laid down that the test of deficiency in service by stating that ‘The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it.
He has also referred another reported decision of the Apex Court in United India Insurance Co. Ltd. vs. Harchand Rai Chand Rai Chandan Lal 1(2003) CPJ 393 & Vikram Greentech (I) Ltd. & Anr. Vs. New India Assurance Co. Ltd. II (2009) CPJ 34 that an Insurance policy is to be construed strictly as per the terms and conditions of the policy document which is a binding contract between the parties.
Relying upon the reported decision in Satwant Kaur Sandhu vs. New India Assurance Company Ltd., IV (2009) CPJ 8 (SC) he has advanced argument that deceased life assured was under an obligation to disclose the said material medical details in the Proposal Form which was necessary to be answered for the purpose of determining the risk under the said policy where in this case in the proposal form the same was intentionally answered in the negative by Deceased Life Insured.
In this connection the Ld. Lawyer for the complainant has advanced argument that the medical certificate relied upon by the OP Insurance Company in favour of the insured issued by Dr. Bimal Kr. Hazra was neither the House Physician nor was the attending physician of the insured. The insured’s treatments were all along done under ESIC Scheme.
He has also advanced argument that the insured was a patient of minor hypertension only and in the year 2014-2015, the insured was diagnosed with pulmonary issues and minor coronary artery disease for which the insured was advised for medical management. And the medical issues as indicated in the purported repudiation letter was never diagnosed before availing of the said policies.
To that effect he has referred a reported decision of the Hon’ble National Commission ion 2017 SCC OnLine NCDRC 993 in case of LICI Vs. Kalpana Rajendra Chavan where the claim was repudiated by the OP/LIC on the ground that the life assured suppressed the material facts about the habit of Gutkha chewing for the last 14 years and also did not disclose dyspepsia which he was suffering prior to filing the proposal form and the observation of the Hon’ble National Commission is given hereunder .
‘the insured deceased was Development Officer working in the LIC (OP’s office) for almost about two decades. If he had habits of chewing tobacco, how the officers of OPs ignored such habit of tobacco chewing before issuing number of policies to the insured. Therefore, the sustainable. The person might have suffered oral ulcers and opening of jaw problems, but it should have been noted by the panel of doctors, who examined the complainant before certifying that he was fit for getting insurance policy and the insured was suffering from oral cancer. The available medical record clearly shows that he was suffering from oral ulcers and dyspepsia, which are common disease occur day to day. Therefore, we do not find any merit in the instant appeals. Accordingly, we dismiss all the three appeals’.
He has referred another reported decision of the Hon’ble High Court P & H in 2016 SCC OnLine P&H 2090 . 2017 ACJ 1233 in the case in between Sunil Kumar & Ors vs. LLICI where the relevant question of the instant case as to repudiation of claim on the ground of suppression of material facts was raised and considered the decision of Hon’ble Apex Court in Satwant Kaur’s case where it has been held that the material fact means any fact which goes to the root of a contract of insurance and has a bearing on the risk involved would be material.
In that case the policy holder Sm. Ganga Devi in the year 2000 suffered an injury on her foot/leg and for that reason she remained on leave from her working place for a total period of four months and 12 days and died on 20-01-2005 and her second policy was repudiated by LICI on the plea that Smt. Ganga Devi (since deceased) furnished wrong information in the proposal form by concealing that she availed leave on medical grounds for the above period and there was no evidence that the said injury had nexus with the death of the insured in January, 2005 and it has been held that the insured was not guilty of concealing any material fact which has a great bearing on the contract of insurance much less going to its root to entitle the insurer to repudiate the claim.
He has also referred another reported decision of National Commission in 2016 SCC OnLine NCDRC – 2662 in the case of Arun Kr vs. New India Assurance Co. where the mediclaim of the complainant for the treatment for degenerative joint disease in both knees in the hospital for the period from 29-04-2001 to 30-04-2001 which was first detected on 20-01-2001 was repudiated as per medical report that he had been suffering for the said disease for the last 4 to 5 years at least and from the report it appears that doctor opined that the nature of the ailment suggests that the insured should have been suffering from the same for 4-5 years at least and the said opinion was based on presumption and the same was not supported by any medical evidence on record and it was the bounden duty of the Insurance company to have verified the information given in the proposal form by obtaining suitable expert opinion before issuing policy and it has been held that the District Forum had rightly observed that non-disclosure of such conditions in the proposal form cannot be blown out of proportion, so as to dis-entitle the complainant from the claim amount from the Insurance Company.
Regarding suppression of material facts relying upon the aforesaid reported decision in Satwant Kaur’s case material fact means any fact which goes to the root of a contract of insurance and has a bearing on the risk involved.
From the materials on record it is clear that the insured was treated under ESIC and in the year 2010 the insured prior to issuance of 1st policy on 03-10-2013 was diagnosed with high blood pressure and he was a patient of minor hypertension.
In the year 2014-15 the insured was diagnosed with pulmonary issues [viz. nasal allergy] and minor coronary artery disease for which the insured was advised for medical management and the COPD as indicated in the repudiation letter was never diagnosed before availing the policies.
The proposal forms were filled in by the agent of the OP Insurance Company and was found fit by medical examination.
Also, considering the guideline of the Hon’ble Apex Court in Satwant Kaur case as to the meaning of material facts which does not go to the root of the contract of Insurance we can safely conclude that hypertension and minor coronary artery disease has no nexus to the cause of death.
Further, medical certificate of the insured issued by Dr. Bimal Kr. Hazra relied upon by the OP Insurance Company is the family relative of the complainant. Local doctor being not available at the time of sudden death of the insured son-in-law of the insured called Dr. Hazra only for issuance of death certificate. He was neither his house physician nor attending physician.
Considering the above discussion we find that all the points are disposed of in favour of the complainant in part and, as such, the complainant is entitled to get death claim of Rs.3,55,230/- along with interest at the rate of7 percent p.a. from 17-05-2016 till realization and litigation cost of Rs.2,000/-.
Hence,
Ordered
That the instant case no.265 of 2017 be and the same is allowed in part on contest against the OP No.1 and ex parte against OPs 2 to 5.
All the OPs are jointly and severally liable to pay the awarded amount.
The OPs are directed to pay the death claim of Rs.3,55,230/- along with interest at the rate of 7 percent p.a. from 17-05-2016 till realization and litigation cost of Rs.2,000/- within 30 days from the date of this order, in default, the OPs to pay fine at the rate ofRs.100/- per day delay and the amount so accumulated should be deposited to this Forum.
Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision of the C.P. Act.
