DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Complaint No. CC/15/70 of 7.4.2015

                                      Decided on:         19.11.2015

Kamla Devi aged about 48 years wife of Late Sh.Balbir Singh son of Sh.Kishori Laal, resident of village Chunni Kalan, District Fatehgarh Sahib, Pin code 140406 M.No.9780678905.

                                                                   …………...Complainant

                                      Versus

1.      Birla Sun Life Insurance Company Ltd., branch office at B/1, Shop No.650,Kalka road, Rajpura, Tehsil Rajpura, District Patiala through its authorized signatory.

2.      Birla Sun Life Insurance Company Ltd.,branch office at showroom No.46, ward No.13, Bassi road, Opposite Mahesh Hospital, Nr.Petrol Pump, Sirhind, District Fatehgarh Sahib through its authorized signatory.

3.      Birla Sun Life Insurance Company Ltd.6^th Floor, Vaman Centre, Makhwana Road,Off Andheri Kurla Road, Near Marol Naka, Andheri (E) Mumbai 400059 through its authorized signatory.

                                                                   …………….Ops

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member

Present:

For the complainant:      Sh.V.K.Dhiman , Advocate

For Ops No.1&3:         Sh.Amit Kumar Bedi,Advocate              

                                         ORDER

D.R.ARORA, PRESIDENT

1. It is the case of the complainant that late Balbir Singh, the husband of the complainant had purchased two life insurance policies i.e. policy No.005446184 and 005446185 from the Ops, one policy was for the insured amount of Rs.10 lac and the other for the amount of Rs.4,79,000/-, which were issued on the basis of the application dated 13.3.2012 submitted by the deceased.
2. The husband of the complainant i.e. the insured died on 31.5.2012 in village Chunni Kalan. Thereafter the complainant applied for the insurance claim on the death of her husband  under the said policies having submitted the original policies but the  Ops failed to release the insurance amount and even to return the original policies despite the repeated requests made by the complainant.
3. In the last week of June,2014 as per the assurance given by the Ops, the complainant visited the office of Ops no.1&2 to get the insurance claim but Ops no.1&3 refused either to reimburse the insurance claim or to return the  original documents which are lying in the possession of Op no.1The act of the Ops in not having disbursed the insurance claim is said to be a deficiency in service as also an unfair trade practice , which resulted in to the harassment and mental agony experienced by the complainant for which it is alleged  that she is entitled to be a compensation in a sum of Rs.50,000/-.
4. It is further averred that earlier the complainant had brought the complaint against the Ops before the Hon’ble State Commission at Chandigarh but the same was withdrawn on 25.3.2015 as the amount of the insurance was less than Rs.20lacs with permission to file afresh before the court of competent jurisdiction. Accordingly the present complaint was brought by the complainant  under Section 12 of the Consumer Protection Act,1986 ( for short the Act) for a direction to the Ops to pay the insured amount on the death of the insured with interest from the date of the death and further to award her the compensation in a sum of Rs.50,000/- on account of the deficiency in service as also the harassment suffered by her.
5. The cognizance of the complaint was taken against Ops no.1&3, who on appearance filed the written version having raised certain preliminary objections, interalia that the Forum lacks territorial jurisdiction to try the complaint as no cause of action accrued against the Ops within the jurisdiction of this Forum and that since the disputed quests are involved in the complaint, the same cannot decided without leading the cogent evidence and therefore, this Forum does not have the jurisdiction to try the complaint and the matter can be decided only in the civil court. As regards the facts of the complaint, it is averred by the Ops that the deceased life assured had approached the Ops and filled up two proposal forms dated 13.3.2012 and deposited the half yearly premiums of Rs.2490/- and 14917/- and consequently the two policies No.005446184 and 005446185 were issued .The DLA had obtained the policies having concealed the material facts regarding his health. The deceased life assured  suffered from throat cancer and had under gone treatment prior to the issuance of the policies. In the applications for insurance given by the DLA on 13^th March,2012, he had replied the questions Nos.(11) (E)4(i) (a) (c),(ii) and (f) in the negative which have been detailed as under:
6.  

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 tumor or any type, gastro-intestinal, liver disease, tuberculosis, asthma or any other lung disease, blood disorders, anemia, endocrine or thyroid disorders?................................................................No

i.       Within the past 5 years have you:

(a) Consulted any doctor or health practitioner except for common cold, influenza lasting lessthan 4 days?...........................No

(c)  Admitted/been advised to be admitted to any hospital or a medical facility for medical management or surgical procedure?.................No

ii.      Have you ever sought advice or suffered from any of the following:

f.       Cancer, Tumor, abnormal growth, thyroid disorder, enlarged glands or enlarged lymph nodes?.......................No”

6. It is the plea taken up by the Ops that the death claim of the complainant was repudiated vide their letter dated 31.8.2012. The complainant had submitted the death claim against the two policies. Since it was a very early claim, on receipt of the death claim, the Ops got the matter investigated through its investigating agency namely M/s Guru Associates ,Ludhiana and  the said agency submitted its death investigation report. On perusal of the same, it was transpired that the deceased life assured was suffering from throat cancer and had undergone treatment prior to the issuance of the policy. The Ops rightly repudiated the claim of the complainant in the light of the provisions contained under Section 45 of the Insurance Act,1938. After controverting the other allegations of the complaint, going against the Ops, it was prayed to dismiss the complaint.
7. In support of her complaint, the complainant produced in evidence Ex.CA her sworn affidavit, Ex.CB, the sworn affidavit of Sh.Mohinder Singh alongwith the documents Exs.C1 to C7 and her counsel closed the evidence.
8. On the other hand, on behalf of the Ops, their counsel tendered in evidence Ex.OPA, the sworn affidavit of Aakriti  Manocha, Deputy Manager(Legal) alongwith the documents Exs.OP1 to OP13 and closed the evidence.
9. The parties failed to file the written arguments. We have heard the learned counsel for the parties and gone through the evidence on record.
10. It was submitted by Sh.V.K.Dhiman, the learned counsel for the complainant that the Ops repudiated the claim of the complainant vide letters dated 31^st August,2012,Ex.C1 in respect of policy No.005446185 and Ex.C2 in respect of policy No.005446184 on the ground that the DLA had given false information in the applications moved by him for getting the insurance policies in respect of his health under the heading INSURABILITY DECLARATION FOR THE LIFE TO BE INSURED , regarding which  we have already given the detail  while discussing the version of the Ops and also on the ground that the investigations got conducted by the ops  established that life assured was in the ENT department and they understand that he was suffering from throat cancer and  had undergone treatment prior to the issuance of the policies but they utterly failed to establish their said plea.
11. It was submitted by Sh.Dhiman that before the Ops had issued the two insurance policies, the DLA was subjected to medical examination by the  doctors of the Ops and Dr.Sarabjit Singh in his medical examination report, which is made  part of the insurance policy documents Exs.C4 and C5 of the two policies gave the answer to the question No.8: “Do you consider from your examination that the applicant is (i) healthy (2) otherwise and he ticked the column relating to healthy. At that time the DLA was not suffering from any disease. Had the DLA been suffering from the decease of the throat cancer, the same could not have gone unnoticed  at the time of his medical examination by Dr.Sarabjit Singh of the Ops.
12. Then, it was submitted by Sh.Dhiman, that the Ops have not lead any medical evidence to show that the DLA had ever got himself treated from any hospital regarding the disease of  throat cancer and that the Investigator Sh.Varinder Singh of M/s Guru Associates Consultant,Ludhiana could simply obtain an information under the RTI from Head-cum-CPIO  Govt. Medical College and Hospital, Chandigarh in the form of Ex.OP11 in respect of one patient namely Balbir Singh bearing CR No.111207579 to show that the said  patient had visited the ENT department of the Govt. Medical College and Hospital, Chandigarh as OPD patient on 20.12.2011, 8.2.2012, 9.2.2012 , 10.2.2012, 18.2.2012, 21.2.2012, 21./2.2012( ENT emergency) ,23.2.2012 and 28.2.2012. Against the entry of 28.2.2012 the world “radiotherapy” is noted but the Ops have failed to connect the said patient namely Balbir Singh bearing CR No.111207579 with the DLA because neither in the application Ex.OP10 moved by the authorized signatory of the Ops before the Medical Superintendent GMC Govt.Medical College and Hospital, Sector 32, Chandigarh nor in the RTI information Ex.OP11, the parentage or  even the address of the patient Balbir Singh have been mentioned. In any case, it was submitted by Sh.Dhiman that mere information got by the Ops regarding the aforesaid Balbir Singh having visited the ENT department of Govt.Medical College and Hospital, Chandigarh was not sufficient to substantiate their plea that the DLA was suffering from throat cancer. They were obliged to produce the medical record regarding the treatment of the throat cancer suffered by the DLA.
13. It was further submitted by Sh.Dhiman that one fails to understand as to how the Investigator Sh.Varinder Singh in his investigation report Ex.OP12, could introduce the element of ‘Cancer’ in the concluding part under the heading Role of Investigator that LA was suffering from throat cancer and for that sake he was taking treatment from DMC and Hospital, Chandigarh because in the information Ex.OP11 got by the Investigator under the RTI it is simply recorded that Balbir Singh had visited ENT department on different dates and  for the emergency of the ENT on 21.2.2012 and radiotherapy was done on 23.2.2012.It could not be imagined by the Investigator that the radiotherapy was done in respect of any throat problem of the DLA. Therefore, the introduction of the part of the body i.e. throat in the report of the Investigator raises doubts about the genuineness of the information got by the ops under the RTI and it may be pertaining to some other Balbir Singh whose identity has not been established by the Ops.
14. Then, it was submitted by Sh.Dhiman that the Investigator had visited the village of the DLA as would appear from the investigation report Ex.OP12 and he met one Mr.Narayan s/o Gurmail Singh,Mobile No.09872043582 and who told him that he was knowing the DLA, who had no problem. He suddenly died of heart attack at his house. He also met Mrs.Sant Kaur wife of Roshan Lal , Mobile No.09814864406 and who told him that DLA was suffering from illness and for which he was taking the treatment from Chandigarh hospital but he had suddenly died at his house. Then, it is further recorded that during the investigation one person had met him who did not disclose his name and who told that LA was suffering from illness. LA had some problem like of wound on his back. May be he had cancer for which he was taking treatment from some hospital at Chandigarh. The very mode and manner of preparing the report would itself go to  suggest that the Investigator had made up his mind to make out a ground for enabling the Ops to repudiate the claim of the complainant without bothering to collect any cogent evidence to make a basis for the same. Why a person would conceal his name (identity) in case he was knowing the LA and he had any reason to believe that LA was suffering from any disease like cancer.
15. It was also submitted by Sh.Dhiman that it has been observed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi , in the case of the citation Manager,Bajaj Allianz Life Insurance Co.Ltd. & others. Versus Mrs.Raj Kumar 2014(3)CLT 49 that usually an authorized doctor of the Insurance company examines the insured, assesses the fitness and after complete satisfaction , then only the policy will be issued and similar procedure was adopted by the Ops in the case of issuing the insurance policies in favor of the DLA. The only evidence collected by the Ops is the information got by their Investigator Sh.Varinder Singh under the RTI from Govt. Medical College and Hospital, Chandigarh in the form Ex.OP11 that one Balbir Singh CR No.111207579 had visited the ENT department of the said hospital on different dates and a radiotherapy was done on his person on 28.2.2012 and no direct medical evidence regarding the DLA  having got any treatment for the disease of throat cancer could be produced by the Ops. Had really the DLA got any treatment qua the radiotherapy from the ENT department of the Govt. Medical College and Hospital, Chandigarh, it would not have been difficult for the said hospital to have provided the copy of the register maintained in the department of the radiology to show any radiotherapy to have been imparted to Balbir Singh. It was also submitted that it is surprising that the parentage and the address of the patient could not be disclosed by the CPIO of Govt. Medical College and Hospital, Chandigarh although he could locate the record regarding the visits made by Balbir Singh on different dates and this goes to belie the identity of the DLA. Invariably in the Govt. hospitals the parentage and address of the patient is recorded so as to maintain his/her identity.
16. On the other hand Sh.Amit Kumar Bedi, the learned counsel for the Ops could not  put forth any forceful argument except that he relied upon the report of the Investigator Ex.OP12 and stated that the Investigator had obtained the information under the RTI from the GMC and Hospital,Chandigarh regarding the DLA and except the said information, no other medical evidence is produced by the Ops to show that the DLA was suffering from throat cancer.
17. We have considered the submissions and are of the considered view that the Ops have utterly failed to show that the DLA had concealed any material information regarding his health in the declaration made by him in the applications Exs.C4 and C5 at the time of getting the insurance policies qua his condition of health and rather the Ops had issued the insurance policies only after being satisfied about the health of the LA as they obtained the medical examination report from their Dr.Sarabjit Singh as discussed above. The Ops have badly failed to lead any evidence that the DLA was suffering from throat cancer and he ever got the treatment for the same, rather as discussed earlier the introduction of the word ‘throat cancer’ in the report by the Investigator Sh.Varinder Singh raises suspicion about the genuineness of the information got by him from Head-cum-CPIO Govt. Medical College and Hospital, qua the identity of the person namely Balbir Singh in respect of whom he had obtained the information under the RTI from head-cum-CPIO Govt. Medical College and Hospital, and in that way, it would appear that the Ops have tried to repudiate the claim of the complainant on the basis of the some oblique information pertaining to one Balbir Singh whose parentage and identity with regard to the address could not be established. Had the DLA suffered from the disease of throat cancer, it would not have been difficult for the Investigator of the Ops to have collected the information independently from the residents of  the village of the DLA and as discussed earlier no such information could be collected by the Investigator from Mr.Naryan s/o Gurmail and Mrs.Sant Kaur w/o Rohan Lal who were conducted by the Investigator. Consequently, it would appear that the repudiation of the claim of the complainant by the ops vide letters Exs.C1 and C2 cannot be up held. Consequently, we accept the complaint and direct the Ops to make the payment of the insured amount under the two policies i.e. Rs.10 lac in respect of policy No.005446184 and Rs.4,79,000/- in respect of policy No.005446185 with interest @9% per annum from the date of the repudiation of the claim i.e. 31^st August,2012 within one month on receipt of the certified copy of the order. In view of the facts and circumstances of the case, the complaint is accepted with cost assessed at Rs.10,000/-.

Pronounced

Dated: 19.11.2015

                   Sonia Bansal                 Neelam Gupta                        D.R.Arora

          Member                         Member                                  President