ORDER
(Passed this on 23rd March, 2017)
Shri Shekhar P. Muley, President.
01. This is a complaint of deficiency in the service of Opposite Parties, Birla Sun LIfe Insurance Company regarding repudiation of insurance claim of late father of the complainant.
02. On 20/6/2011 Laxman Sardar, late father of the complainant had purchased insurance policy from OP2 for sum assured Rs.10,90,000/-. The policy period was 20/6/2011 to 20/6/2032. The complainant was nominee and beneficiary under the policy after death of insured Laxman. Before issuing policy medical examination of late Laxman was done and he was found fit. As late Laxman was illiterate, proposal form was filled in by insurance advisor Abhimanyu Kamdi. Laxman had disclosed all particulars to him but he did not mention particulars of other policies. Half yearly premium Rs.6.750/- was to be paid in December and June every year. Laxman expired on 06/10/2011. The complainant then lodged claim with the OP. by letter dt/ 31/1/2012 the OP informed her about repudiation of the claim on the ground that the insured Laxman had mentioned false date of birth as 7/11/1957 when he was far older. Further he did not disclose about other policies of other companies. But the ground of repudiation is false. No investigation papers on which basis repudiation was done are supplied to her. Thus alleging deficiency in service and unlawful trade practice by the OP, it is prayed to direct OP to settle her claim of Rs.10,90,000/- with 12% interest form 18/11/2013 besides to pay compensation of Rs.20,000/- and cost Rs.10,000/-.
03. Opposite Parties filed reply and admitted insurance policy of late Laxman. According to them the date of birth of Laxman mentioned as 7/11/1957 is wrong as his other documents reveal he was born in 1926. it is stated that the particulars of other policies were not disclosed. It is also denied the proposal form was filled in by insurance advisor. There was suppression of facts by Laxman and all details were not disclosed in proposal form. It amounts to breach of policy and against the principle of utmost good faith. Denying the complaint of deficiency in service or unfair trade practice, it is prayed to dismiss the complaint.
04. Heard both the sides, perused documents and notes of argument. On consideration of the same we record our findings and reason as under.
FINDINGS AND REASONS
05. The only disputed facts are age of late Laxman and particulars of his other policies not disclosed by him in proposal form. Annexure A is proposal form wherein date of birth of Laxman is mentioned as 7/11/1957. The complainant has said Laxman was illiterate and form was filled in by insurance advisor. Though it is denied by the OP, it appears to be correct. Because on the form Laxman had put in his thumb impression which itself shows he was illiterate person who could not even sign. Besides, in the column of qualification he was mentioned as illiterate. Therefore possibility of filling the form by somebody else cannot be ruled out. The OP have relied on some documents like Aadhar card, certificate issued by G.P. Ambada and Nagar Palika, Katol to prove the age of late Laxman. In the Aadhar card, which bears same name as that of late Laxman and address, date of birth year is mentioned as 1926. The photo on the card is not clear but there is definitely difference in the phots of Laxman on Aadhar card and proposal form. The certificate issued by G.P. and Nagar Palika, in fact, do not prove age of Laxman and such certificate cannot be accepted as proof of age. What is surprising to note is that as per proposal form and Aadhar card there is huge difference of age; almost 31 years. Laxman was medically examined before issuing him policy. The doctor who examined must have noted this huge difference in age had he been really of 84 years old but claimed to be 57 years old. But in medical papers also his year of birth is mentioned as 1957. We do not think even the doctor also failed to note such huge difference in age. A person of 54 years and of 85 years have lot of difference in appearance. The complainant has denied Aadhar card was of Laxman. Besides there is no age bar for taking policy taken by Laxman. So there was no reason for him to mention false year of birth in proposal form. There is one more reason to agree with the complainant. The proposal form apperas to have been filled in by insurance advisor Abhimanyu Kamdi since the form is filled in English and it bears signature of Abhimanyu Kamdi. His signature and handwriting on the form have similarity and can be said to be of him. As there is no satisfactory and clinching evidence that late Laxman was born in 1926, it has to be inferred that he was born in 1957.
06. Another ground of repudiation is non disclosure of other policies of late Laxman. It is an admitted fact that he had taken some other policies, of which particulars are given by the complainant herself. Ld counsel for the OP relying on the decision in United India Insurance Co. Ltd. v/s Harchand Rai Chandan Lal (2004) 8SCC 644 contended non disclosure of material facts goes to the root of the case vitiating the policy and renders it invalid ab-intio. On the other hand, ld counsel for the complainant relied on a judgment in Vijay Pal Singh v/s LIC Of India III (2014) CPJ 161 (UP). The observations made in that judgment are applicable to the present case. In that case claim of two policies were repudiated and that fact was not disclosed. The insured had four policies. On that ground death claim was repudiated. It was held that OP failed to disclose that suppression of two policies earlier taken was deterrent for opposite parties to allow subsequent policies. Concealment of previous policies either accidentally or inadvertently or even deliberately is not a fact to be held a material fact for repudiation of claim unless it is proved that disclosure of such facts had an adverse impact on rights of insurer. We are of the opinion that these observations made in Vijay Pal Singh case are squarely applicable to the facts of the present case. We do not dispute that suppression of material facts renders the contract of insurance invalid, but suppressed facts must be material which go to the roots of the case. Non disclosure of earlier policies is not material to render the policy invalid. There is no evidence that such non disclosure was intentional and deliberate to gain some advantage.
07. The Opposite Party should not have repudiated the claim merely on such grounds. As held in LIC of INdia v/s Dali Kunwar Devda I (2012) CPJ 378 (Raj), once accepting premium and having entered into agreement without verifying the facts, insurance company cannot wriggle out of liability merely by saying that contract was made by misrepresentation and concealment.
08. We have already held late Laxman was an illiterate person and therefore it is for the OP to satisfy whether all terms and conditions of the policy were dully explained to him. No affidavit of the insurance advisor to that effect is filed. In Aviva Life Insurance Co. v/s Manohar Bhogawat IV (2011) CPJ 112 (Raj) it is held that agent of insurance company is required to explain all details and conditions of insurance policy sought by the customer.
09. The Opposite Parties has further stated that there was misrepresentation of the relationship of the nominee to late Laxman and falsity of the family history. However, nothing has been explained by the OP on this point. From the documents on record we do not comprehend what exactly the Opposite Party wants to convey by this ground of repudiation. Hence, it is of no consequence.
10. For aforesaid reasons the complaint deserves to be allowed. Hence, the following order.
ORDER
1. The complaint is partly allowed.
2. The Opposite Parties No.- 1 and 2 shall jointly and severally pay a sum of Rs.-10,90,000/- (In words Rupees Ten Lakh Ninety Thousand only) being basic sum assured under the policy of late Laxman, to the complainant with 7% p.a. interest from date of the complaint i.e.-30/12/2013.
3. The Opposite Parties No.- 1 and 2 shall also pay Rs. 10,000/- as compensation for mental and physical agony and Rs.2000/- litigation cost to the complainant.
4. Order shall be complied by the Opposite Parties within 30 days from receipt of the order.
5. Copy of the order shall be given to both the parties, free of cost.
