BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.46 of 2015. Date of Instt.: 25.03.2015. Date of Decision: 08.08.2016.
Kavita Devi aged 50 years, wd/o Ram Kumar VPO Jagan, Tehsil Adampur, District Hisar (Haryana). ..Complainant
Versus
1.Birla Sun Life Insurance Company Ltd., on the upper side Canara Bank G.T. Road Fatehabad, through its Branch Manager/ Kuldeep Dhanju Agency Manager, Harnam Singh Colony Bighar Road, Fatehabad.
2. Birla Sun Life Insurance Company Ltd., G Corp Tech Park, 5th and 6th Floor Kashar Wadavali Ghodbunder Road Thane (W) 400601 through its Authorised person.
..Opposite Parties.
Complaint U/S 12 of the CP Act,1986
Before: Sh.Raghbir Singh, President. Smt.Ansuya Bishnoi, Member.
Argued by: Sh. Ravinder Singh, Advocate for complainant. Sh. Ashish Goyal, Advocate for opposite parties.
ORDER
Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties.
2. It is stated in the complaint that husband of the complainant got insured him from the opposite parties by purchasing two policies bearing nos. 005473704 and 005516238 for assured sum of Rs.9,80,000/- by making the premium to the opposite parties through the agent of the opposite parties namely Kuldeep Singh. The complainant is the nominee of the insured Ram Kumar as per policies. It is further stated that the husband of the complainant died on 6.6.2012 during the period of policies and the complainant intimated the opposite parties regarding the death of the life insured. The complainant being the nominee of the deceased insured Ram Kumar applied for death claim of Rs.9,80,000/- as per terms and conditions of the policies and submitted both the original policies and other documents with the opposite parties and their officials assured her that claim will be given within short period. It is further stated that complainant received a letter dated 28.9.2013 from the opposite parties vide which the opposite party no.2 has repudiated the claim of the complainant on wrong and false facts. The life insured Ram Kumar never became ill in his life time and never suffered from disease of cancer of lung with secondaries to lever and bones and pneumonities and never took treatment for tuberculosis. He never took any treatment from any Hospital for the alleged disease mentioned in the repudiation letter dated 28.9.2013. It is further stated that opposite parties concocted a false and improbable version while repudiating the genuine claim of the complainant. The insured was hale and hearty at the time of purchasing the policies and remained hale and hearty till death. He was also examined by the doctor of the insurance company and no disease was found at that time by the doctor. The complainant suffered mental and physical harassment at the hands of the opposite parties, so she is entitled for compensation of Rs.50,000/- for harassment. The complainant is also entitled to death claim of Rs.9,80,000/- alongwith interest @24% per annum from the date of death of husband of complainant till actual realization. The complainant also got served a legal notice upon the opposite parties for providing all documents regarding the policy and claim but to no effect. The complainant is also entitled for litigation expenses of Rs.11,000/-. Hence, this complaint.
3. Upon notice, opposite parties appeared through counsel and contested the complaint by filing written statement taking certain preliminary objections regarding maintainability and locus standi. It has been submitted that true facts are that husband of the complainant Sh. Ram Kumar vide his application dated 21.3.2012 and 31.3.2012 approached the opposite parties on different point of time and executed a proposal form in favour of the opposite parties and upon his request two policies dated 31.3.2012 on an annual premiums of Rs.25994/- each and sum assured of Rs.3,52,418/- each were issued to deceased Ram Kumar. Thereafter, the opposite parties received death claim intimation from the complainant and upon perusal of the same, it has been revealed that the life assured passed away on 6.6.2012. It has been further submitted that being an early claim i.e. within three months from the date of commencement of the policies, the opposite parties had processed the case for conducting necessary investigation and during course of which, it was revealed to the opposite parties that the life assured was suffering from tuberculosis since April, 2011 and liver cancer since June 2011 and apart from the same, the life assured was a case of infiltration right side and pneumonitis and much prior to the applying for the policies with the opposite parties, was regularly taking treatment of the above said disease but he malafidely concealed the factum of his pre-existing disease at the time of entering into policy contract. The opposite parties after receiving investigation report corroborated with the affidavit of the investigator and medical report of life assured did not found feasible to admit the claim of the complainant and accordingly the same was repudiated on 28.9.2013. It has also been submitted that principle of contract of life insurance is Uberrama Fides i.e. the principle of utmost good faith. The doctrine of good faith requires the proposer to make a complete and truthful disclosure of the material facts pertaining to his/her health and other history. On account of concealment of material facts, the opposite parties repudiated the claim. There is no deficiency in service on the part of opposite parties. On merits, the pleas taken in the preliminary objections have been reiterated. It has also been submitted that aggregate sum assured under both the policies was Rs.9,52,888/- and not Rs.9,80,000/- as claimed by the complainant. Other pleas of the complaint have been controverted and prayer for the dismissal of the complaint has been made.
4. Thereafter, both the parties adduced their respective evidence by way of affidavits and documents. Complainant has tendered into evidence affidavit as Ex.CW1/A and documents as Ex.C1 to Ex.C5 and Annexure A. On the other hand, opposite parties have tendered into evidence affidavit as Annexures RW1/A and documents as Annexures R1 to R7.
5. We have heard learned counsel for the parties and have perused the case file carefully. Written arguments have also been submitted on behalf of opposite parties which have been perused.
6. Learned counsel for the complainant has contended that life assured expired on 6.6.2012 during the subsistence of policies in question as on that date he suddenly suffered severe chest pain and was being taken to the hospital but in the way he died. He has contended that life assured was not suffering from any pre-existing disease before taking of the policies in question. The opposite parties have failed to prove by any reliable and cogent evidence that deceased life assured was suffering from pre-existing disease at the time of taking insurance policies and have wrongly repudiated the claim and prayed for acceptance of the complaint. In support of his contentions, he has relied upon the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as SBI Life Insurance Co. Ltd. Versus Harvinder Kaur & anr. Revision Petition No.380 of 2013 decided on 18th July, 2014.
7. Per contra, learned counsel for the opposite parties has contended that deceased life assured was having pre-existing disease at the time of taking insurance policies but he withheld the material information regarding his ill health in the proposal form and during investigation, it has been revealed that he was suffering from tuberculosis since April,2011 and liver cancer since June, 2011. He has further contended that life assured had given wrong answers regarding his health in the proposal form. The declaration in the proposal form and the statement given by the life assured were basis of contract of mutual trust between the insurance and the life assured. He has further contended that deceased life assured was a govt. employee and was employed as a Mechanic in Haryana Roadways, Hisar and he had taken long leave from his department for the treatment of disease of cancer. He has further contended that as the life assured concealed his pre-existing diseases, therefore, the contract has been vitiated and prayer for dismissal of the complaint has been made. In support of his contentions, he has relied upon the judgment of the Hon’ble State Consumer Disputes Redressal Commission, Panchkula in case titled as Life Insurance Corporation of India and others Versus Murti Devi, F.A. No.1655 of 2005 decided on 16.8.2010 and decision of Hon’ble Punjab State Commission, Chandigarh in case titled as Sangeeta Kaushik and others Versus Life Insurance Corporation of India and others, F.A. No.332 of 2004 decided on 17.11.2009.
8. We have considered the rival contentions of the parties. Admittedly, Ram Kumar since deceased had taken two insurance policies from the opposite parties by filing the proposal form on 21.3.2012 and 31.3.2012. The copy of the proposal form dated 21.3.2012 has been placed on file by opposite parties as Annexure R1 in which the life assured had answered the questions in Column No.11 as under:-
“Questions:-
11.(a) Have you remained absent from place of work on grounds of health for a continuous period of more than 10 days for reasons other than pregnancy, minor fracture, cold or flue?
Ans. No
(B) In the past five years, have you ever undergone any surgical operation at a hospital or clinic or undergone any investigations with other than normal or negative results (including X-rays, ECG, blood tests, biopsies etc?
Ans. No
(E) Have you ever been diagnosed with or treated/consulted for diabetes or sugar in urine, high or low blood pressure, chest pain, heart attack or any other heart disease, stroke, paralysis, kidney, urinary or bladder disorders, reproductive organ or prostate disorders, mental disorder, neurological disease, musculoskeletal disorders, cancer or tumour of any type, gastro-intestinal, liver disease, tuberculosis, asthma or any other lung disease, blood disorders, anemia, endocrine or thyroid disorders? (please circular, whichever is appropriate)
Ans. No
9. In order to prove that the life assured was suffering from cancer of lung with secondaries to liver & bones and was also suffering from Pneumonitis and was under treatment for Tuberculosis prior to taking of insurance policies, the opposite parties have relied upon the investigation report of the Investigator placed on file as Annexure R6. The conclusion of the Investigator in this report is as under:-
1. The LA died at his residence due to cancer on 6.6.2012.
2. The LA was suffering from tuberculosis and liver cancer since April 2011 and June 2011 respectively.
3. In June 2011, the LA had visited at O.P. Jindal Institute of Cancer & Research, Hisar with complaints of abdominal pain, chest paid and cough and there the LA was diagnosed with liver & bony metastasis.
4. As per the medical document of Krishna Surgical & General Hospital, Hisar of dated 29.4.2011, the LA was case of infiltration right side and penumonitis.
5. As per the OPD card of Rajendra Hospital, Fatehabad of dated 16.6.2011, the LA was on ATT(DNH, F+B) since two months. Also, the LA was case of secondaries liver and LT pneumonitis.
6. The LA was also taking treatment for tuberculosis (T.B) from District Chest & T.B. Hospital.
On 6.6.2012, the LA’s health got deteriorated and he had died at his home.
In support of his above said report, the Investigator also attached the treatment record of Ram Kumar life assured from the above hospitals. A perusal of the medical record of the life assured from O.P. Jindal Institute of Cancer & Research, Hisar reveals that on 21.6.2011, the life assured had visited in the hospital with the complaints of abdominal pain, chest pain and cough. On 18.6.2011, he had undergone CECT chest test in the hospital and he was diagnosed with mass left upper lobe with extensions and involvements as described, left sided pleural effusion with thickened and enhancing pleura, mediastinal lymphnodes as described; SOLs liver and metastasis. On 2.11.2011, again the LA/s CECT chest (test) was conducted and the LA was diagnosed with liver and bony metastasis. A perusal of out door ticket of Distt. Chest and T.B. Hospital, Hisar dated 29.4.2011 reveals that Ram Kumar son of Harji Ram aged 56 years male, resident of village Jagan was treated for tuberculosis. Then there is copy of prescription slip of Krishan Surgical and General Hospital, Mandi Adampur (Hisar) dated 29.4.2011 which mentions that Ram Kumar complained of chest pain and on x-ray chest and ECG, life assured was found suffering from infiltration right side and penumonitis and he remained under treatment upto 5.8.2011. There is one another copy of prescription slip of Rajendra Hospital, Fatehabad dated 16.6.2011 regarding Ram Kumar which reveals that life assured was case of secondaries lever and LT penumonitis. From the above said record of various hospitals, it is evident that deceased life assured was suffering from various critical diseases like liver cancer and tuberculosis besides some other diseases in the year 2011 i.e. prior to taking of the insurance policies in question.
10. Learned counsel for the complainant has contended that opposite parties have failed to prove the genuineness of above said record of the hospitals as opposite parties have failed to file affidavits of treating doctors or to produce the original record of the treatment. So he has contended that concealment regarding pre-existing diseases has not been proved by the opposite parties. However, we see no substance in the contentions of the learned counsel for the complainant because there is nothing on record to show that the above said treatments record of various hospitals do not pertain to the life assured as the complainant has not led any contrary evidence and therefore, it cannot be said that the above said treatment record is manipulated. Moreover, in the Consumer Forums, the documents are filled in the form of photocopies and if the same are clear and visible and raise no doubt and suspicion, then the same can be relied upon. In this regard we are fortified with the observations of Hon’ble National Commission in case titled as ICICI Bank Ltd. Vs. Pushpa Chandran & Ors. Decided on 17 October, 2014. So from the copies of treatment record of the life assured which are very much clear and visible, it is proved on record that deceased life assured was suffering from liver cancer and tuberculosis and some other diseases.
11. The Investigator in his report has also mentioned that life assured worked in the Haryana Roadways, Hisar from 1977 to 2002. On 28.2.2002, he had retired from the said department. The enquiry was conducted from the above said office and they met with Manager and requested him to provide the LA’s service record, leave record and medical certificate. The office has given the medical reimbursement to the LA in 2011 and 2012. In this regard, the Investigator attached copy of leave record of Ram Kumar in which it is mentioned that he had taken leave from 17.6.2011 to 23.6.2011, 12.7.2011 to 14.7.2011 and 2.8.2011 to 4.8.2011, 24.8.2011 to 26.8.2011, 16.9.2011 to 17.9.2011 and from 12.10.2011 to 13.10.2011 for taking treatment of Cancer from Jindal Institute of Medical Sciences, Model Town, Hisar. Learned counsel for the complainant contended that said document cannot be relied upon being a photostat copy and has not been proved by reliable and cogent evidence. He also contended that as there are shortage of employees in the Govt. departments and leave of the employees without medical certificates are not sanctioned, so the employees obtain leaves on the pretext of illness. Reliance is also placed on the observations of the Hon’ble Madhya Pradesh State Commission, Bhopal in case titled as Mrs. Shashikiran Mishra Vs. branch Manager, LIC & Anr. Appeal No.436/2003 decided on 8.1.2004 wherein it has been held that “Government and Public Sector employees obtain medical certificate many a times falsely only to secure leave.” However, we see no substance in the contentions of the learned counsel for complainant. It is pertinent to mention here that on 10.12.2015 when the case was fixed for arguments, an application was moved on behalf of complainant to summon the original record of Haryana Roadways, depot Hisar and the opposite parties filed reply to the said application and resisted the same but during the course of arguments, the said application was not pressed and therefore, the above said document has to be relied upon. The authority cited by learned counsel for complainant is not applicable to the facts and circumstances of the present case firstly because no one is supposed to take leave for such a disease of cancer and secondly as mentioned above from the treatment records available on file, it is proved on record that deceased life assured was actually suffering from liver cancer. The law settled by the Hon’ble National Commission in the case of ICICI Bank Ltd. Vs. Pushpa Chandran & Ors (supra) would prevail over the law as settled in the case of SBI Life Insurance Co. Ltd. (supra) being of subsequent date i.e. 17.10.2014.
12. In the present case, it has been proved on record that deceased life assured concealed material information regarding his health from the opposite parties in the proposal form dated 21.3.2012 Annexure R1 and died on 6.6.2012. So, we do not find any illegality in the repudiation of the claim of the complainant. In this regard we are also fortified with the observations of the Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula in case titled as Life Insurance Corporation of India and others vs. Murti Devi (supra) wherein it has been held as under:-
“ Consumer Protection Act, 1986, Section 2(1) (g)- Insurance Act, 1938, Section 45- Insurance claim- Repudiation- Supression of material fact- Death within two years of the purchasing of policy- From the record it is established that in the proposal form the life assured had given wrong answers to the questions 11(1), (b), (e) and (i)- The declaration in the proposal form and the statement given by the life assured, were basis of contract of mutual trust between the insurance and the life assured- The medical record collected from AIIMS, Delhi proved it a case of concealment of true and material facts with respect to state of health of the assured and contract vitiated- District Forum committed an error in accepting the complaint- The impugned order liable to be set aside.”
Similarly, the Hon’ble State Consumer Disputes Redressal Commission, Panchkula in case titled as Rajpal Versus Birla Sun Life Insurance Co. & others, First Appeal No.94 of 2015 decided on 20th February, 2015 has held as under:-
“It is a well settled proposition of law that a contract of insurance is based on the principle of utmost good faith- uberrimae fidei, applicable to both the parties. The rule of non-disclosure of material facts vitiating a policy still holds that field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts, the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which are within his personal knowledge or which he ought to have known had he made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non-disclosure of “material facts.”
13. Thus, as a sequel to our above discussion and in view of the above said law, we do not find any merit in the present complaint and the same is hereby dismissed. A copy of this order be supplied to both the parties free of costs. File be consigned to the record after due compliance.
Announced in open Forum. Dated:08.08.2016.
(Raghbir Singh) President, (Ansuya Bishnoi) Distt.Consumer Disputes Member Redressal Forum, Fatehabad.
