Haryana

Jind

CC/69/2014

Smt. Bharpal - Complainant(s)

Versus

Birla Sun Life Insurance - Opp.Party(s)

Sh P.K. Batra

08 Jul 2016

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JIND.
                            Complaint No. 69 of 2014
                            Date of institution:-7.6.2014
                            Date of decision:- 13.7.2016
Smt. Bharpal wife of Sh. Kitab Singh resident of village Roop Garh, Tehsil & District Jind (being mother and only legal heir of life assured deceased Rajender son of Sh. Kitab Singh.
                                       ..Complainant.
Versus
Birla Sun Life Insurance Company Limited Scheme No.6, Gandhi Nagar, Jind through its Branch Manager.

                                          …Opposite party.
Complaint under section 12 of
                Consumer Protection Act, 1986.
Before:     Sh. Dina Nath Arora, President.
            Smt. Bimla Sheokand, Member.
            Sh. Mahinder Kumar Khurana, Member.  

Present:-    Sh. P.K. Batra, Adv. for  complainant. 
        Sh. Ashish Goyal, Adv.for opposite party.  
Order:-
               Brief facts of the complaint are that Bijender son of Sh. Kitab Singh i.e. real brother as well as nominee of deceased/life assured Rajender who died on dated 5.12.2012 due to cardiac arrest/heart attack. Now the present complaint is being continued by the legal heir of life assured i.e. his mother Smt. Bharpal. The deceased Rajender during his life time to insure his life from opposite party at Jind and had purchased life insurance policies for a sum of Rs.2,00,000/- and Rs.5,00,000/- bearing No.005315166 and 
        Smt. Bharpal v/s Birla Sun Life Insurance.
                      ....2….
No.005575008 from the opposite party respectively. The agent of the opposite party firstly allured deceased Rajender to buy their policies instead of Life insurance Corporation of India and by alluring the deceased got his signatures on proposal form and he was medically examined by the panel doctor of opposite party and after receipt of premium of Rs.6,630/- and Rs.15,300/- above numbered policies were issued in favour of life assured. The Life Insurance Corporation of India released the insurance claim on account of death of Rajender to the complainant without any delay and the same has also been transmitted to the bank account of complainant. The opposite party has  repudiated the claim on account of death of life assured Rajender on the false ground that the life assured was suffering from diabetes mellitus and was on medication prior to the application for insurance. Deficiency in service on the part of the opposite party is alleged. It is prayed  that the complaint be accepted and opposite parties be directed to pay  Rs.5,00,000/-  along with other benefits of the policy with interest @18% p.a. as well as to pay  a sum of Rs.2,00,000/- as compensation on account of mental pain and agony to the complainant.   
2.    Upon notice, the opposite party has appeared and filed the written statement by taking some preliminary objections such as complainant has no  locus-standi to file the present complaint and the complaint is not maintainable in the present forum. On merits, it is contended that the life assured was under treatment of Diabetes Melitus and he was taking treatment of the same for the last 2½ years 
        
             Smt. Bharpal v/s Birla Sun Life Insurance.
                    .  ...3….
much prior to the issuance of the policy in question. The opposite party came to know about the ailments of the life assured only after the claim form was submitted and after investigating the case. The said policy of life insurance was got obtained by the brother of the complainant by concealing true and material facts about his health. The opposite party has rightly repudiated the claim of the complainant vide letter dated 31.5.2013 on the ground that the life assured was suffering from Diabetes Melitus since the year 2009.   Therefore, there is no deficiency in service on the part of the opposite party. Dismissal of complaint with costs  is prayed for.
3.    In evidence, the complainant has  produced  her own affidavit Ex. C-1, affidavit of Sh. Bijender Ex. C-2, copy of renewal premium Ex. C-3, copies of identity card Ex. C-4 and Ex. C-5, copy of ration card Ex. C-6, copy of death certificate Ex. C-7, copy of passbook Ex. C-8, copy of status report Ex. C-9, copy of letter dated 31.5.2013 Ex. C-10 and C-11, copy of death certificate Ex. C-12, copy of order of P.L.A. dated 16.5.2014 Ex. C-13, copy of statement dated 16.5.2014 Ex. C-14, copy of cheque Ex. C-15, copy of order dated 20.9.2013 Ex. C-16, copy of renewal premium Ex. C-17, copy of letter dated 31.5.2013 Ex. C-18 and Ex. C-19 and closed the evidence. On the other hand, the opposite party has produced application form Ex. OP-1, copy of death claim intimation form Ex. OP-2, copy of letter Ex. OP-3, copy of letter dated 29.4.2013 Ex. OP-4, copies of document Ex. OP-5 and Ex. OP-6, copy of death certificate Ex. OP-7, copy of 

          Smt. Bharpal v/s Birla Sun Life Insurance.
                  ....4…. 
letter dated 31.5.2013 Ex. OP-8 and affidavit of Sh. Prasun Prateek Zonal legal Head Ex. OP-9 and closed the evidence. 
4.    We have heard Ld. counsel of both the parties and also perused the record placed on file. Main question involved in this case is whether life assured had obtained the insurance policy by concealing and mis-representing  the detail about his previous ailment and submitting the proposal form to the opposite party. On this point the opposite party argued that at the time of applying of policy by the brother of the complainant, life insured had concealed the facts with regard to  his pre-existing disease and he further argued that at the time of applying for the policy the life assured was under treatment of Diabetes Melitus and he was taking the treatment of the same for the last 2 ½ years much prior to the issuance of the policy in question. The opposite party came to know about the ailment of the life assured only after claim form was submitted and after investigation of the case, if brother of the complainant has given the true facts in the proposal form, opposite party would not have entered into contract with the brother of the complainant.    In this regard, opposite party has placed on the file copy of the proposal form Ex. OP-1 we find that in relation to the question pertaining to the health condition, the life assured answered the every question in negative, we, however, are concerned with following questions and their replies in the proposal form as under:-
B     In the past five years, have you ever undergone any surgical (No)
        
          Smt. Bharpal v/s Birla Sun Life Insurance.
                      ....5….
       operation at a hospital or clinic or undergone any investigations 
       with other than normal or negative results (including X-ray, 
       ECG, blood tests, biopsies etc)?
C (i) Are you on diet or any other medicine of any kind as prescribed 
    by a doctor?
  (ii) Are you currently undergoing or intend to undergo any         (No)
        treatment?
 (iii) Have you been advised for any surgical operation, procedure or 
    hospital admission?
D    Do you have any physical defects, impairment, deformities   (No)
    and/or any condition affecting mobility, sight and/or hearing?
E    Have you ever been diagnosed with or treated/consulted for  (No)
    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 disordersmental disorder, neurological disease, 
musculoskeletal disorders, cancer or tumour of any type, gastro-
intestinal, liver diseases, tuberculosis, asthma or any other lung 
diseases, blood disorders anaemia, endocrine or thyroid 
disorders? (please circle, whichever is appropriate).

The onus to proving that life assured has given false answers of the above noted questions for obtaining life insurance policy squarely lies on the opposite party i.e. insurance company. Ld. counsel for the opposite party has contended that they have discharged the onus by producing the copy of the relevant treatment record Ex. OP-4 as well as investigation report Ex. OP-6 of investigator Ms. Deepa Sharma acting on behalf of M/s accesses service, Ltd. New Delhi who has investigated the matter and had produced the treatment  record of deceased Rajender Ex. OP-4 including discharge card as well as the 
    
       Smt. Bharpal v/s Birla Sun Life Insurance.
                      ....6….
certificate issued by Chief Medical Officer, Shah Satnam Ji Speciality Hospitals, Sirsa. We have perused the above documents, the CMO Shah Satnam Ji Hospital has clearly mentioned that Rajender Singh s/o Sh. Kitab Singh r/p Roop Garh, Tehsil and District Jind was suffering from Diabetic Neuropathy with quadriparesis  during the course of his treatment he was admitted in this hospital on 10.2.2012 and was discharged on 15.2.2012. The brief history of deceased regarding his disease mentioned above.  
5.    On the other hand, Ld. counsel for complainant has argued that deceased Rajender Singh had died on 5.12.2012 due to cardiac attack at home. He further argued that complainant had also purchased another policy for a sum of Rs.2,00,000/- which was effected from 10.1.2012 and thereafter, they have also purchased the policy in question bearing No.005575008 vide application dated 10.5.2012 which was effected on 10.5.2012 and again was renewed from 9.11.2012. He further argued that he filed the claim of the both policies before the Permanent Lok Adalat for Public Utility Service, Jind, the claim of first policy regarding Rs.2,00,000/- which was allowed by the Permanent Lok Adalat vide order dated 20.9.2013 but he withdraw the second claim regarding policy of Rs.5,00,000/- effected on 10.5.2012 and Permanent Lok Adalat has given the permission to file the above said claim before the appropriate Forum and accordingly complainant has filed the present complaint in this Forum. In this way, the complainant is entitled for another claim of Rs.5,00,000/- which is matter in controversy. We have perused the 
    Smt. Bharpal v/s Birla Sun Life Insurance.
                      ....7….
copy of order passed by Permanent Lok Adalat dated 20.9. 2013. It is an ex-parte order and policy regarding Rs.2,00,000/- is effected in January, 2012. So this order having no relevancy to decide this case. The policy in question involved in this case which was effected on 10.5.2012 and as per treatment record the insured was taking the treatment on 10.2.2012. In view of the record produced by the opposite party, it is clear that at the time of taking the policy as well as filling the proposal form on 10.5.2012 that insured had taken the treatment which he was suffering from Diabetic Neuropathy  with quadriparesis, dictionary meaning neuropathy means damage to nerves, usually referring to the peripheral nervous system and definition of quadriparesis weakness of all four limbs both arms and both legs as from muscular dystrophy. The same is concluded from the treatment record. 
6.    From the above said discussion, where in it is concluded that deceased having the above said diseases mentioned above prior to fill up the proposal form and has given the answers every question in negative as mentioned in para No.4 of this order. It is clear that at the time of obtaining the policy, the life assured was suffering from Diabetic Neuropathy  with quadriparesis, the life assured was aware of the above said disease which facts he and his brother Karam Singh  have concealed by wrongly answering the questionnaires regarding his health in the proposal form.  As the life assured had obtained the insurance policy by concealment of mis-representation of vital facts

        Smt. Bharpal v/s Birla Sun Life Insurance.
                      ....8….
 regarding his health, the insurance contract is invalid and the opposite party was justified in repudiating the claim.
7.    It is well settled that contract of insurance is based on the doctrine of ‘uberrima fides’ i.e. utmost good faith. The life assured while obtaining the insurance policy is under obligation to truthfully answer the questions concerning material aspect with respect to his life at the time of submitting the proposal form and if some material information is withheld or concealed, it vitiates the insurance contract and the insurer cannot be held liable to pay the insurance benefit under the insurance contract. Reference be made to the  judgment of the Supreme Court in the cases of P.C. Chacko & Anr. Vs. Chairman, LIC of India (2008) 1 SCC 321 and Satwant Kaur Sandhu Vs. New India Assurance Company (2009) 8 SCC 316. 
8.    In view of the discussions above, we are of the opinion that complainant has failed to prove his case and there is no deficiency in service on the part of the opposite party. Hence, the complaint of the complainant is hereby dismissed with no order as to cost.   Copies of order be supplied to the parties under the rule. File be consigned to the record-room after due compliance.
Announced on: 13.7.2016
                                              President,
       Member       Member                 District Consumer Disputes                                          Redressal Forum, Jind

 

 

 

 

 

 

 

 

 

 

5.    We have perused the file minutely and carefully. It is an admitted fact that the husband of the complainant had purchased life insurance policy as mentioned above. The main  question involved in this complaint  whether the  complainant is entitled the accident benefit of the policy or not.
6.    We have heard both the parties and gone through the record carefully placed on the file. As per the final report (Ex. OP-8) under Section 173 Cr.P.C. the case titled State Vs Raja Ram etc. vide FIR No.119 dated 7.7.2013 under Section 148/149/302/307 read with section 25 of Arms Act husband of the complainant has been murdered by the accused  person i.e. Raja Ram etc. and Hon’ble  District & Sessions Judge, Jind has held that the prosecution has not been able to prove his charge under Sections 148/302/307 read with 25 of Arms 
            Birmati Vs. LIC
                …4…
Act against the accused. The counsel for the complainant argued that in view of the  above said judgment rendered by Hon’ble Sessions Judge, murder of the deceased is not proved meaning thereby death of the deceased is not a  natural death and he further argued as per the post-mortem report Ex. OP-13 deceased died due to bullets injury it is a accidental death so the complainant is entitled the accidental death of the policy. Ld. Counsel for the complainant has tendered Appeal No.380 of 2001 decided on 20.12.2001 titled as Life Insurance Corporation of India Vs. Lalitaben Pravinchandra Gohil decided by  Gujarat State Consumer Disputes Redressal Commission, Ahmedabad  and another Appeal No.FA15 of 2011 date of decision 29.9.2011 titled as Mala Deb (Choudhary) Vs. LIC of India and another decided by State Consumer Disputes Redressal Commission, Tripura.  
7.    On the other hand, Ld. Counsel for the opposite party argued that the opposite party has paid a sum of Rs.1,54,616/- to the complainant on 15.10.2013 nothing is due against the opposite party and complainant has received the full and final payment as per received voucher  dated 15.10.2013 without protest as Ex. OP-4. He relied upon the judgments rendered by Hon’ble National Commission, New Delhi titled as Haryana State Co-operative  Supply & Marketing Federation Ltd. Vs. Iffco Tokio General Insurance Company Ltd. 2013(3) CPC page 356 and Shree Balaji Woolen Mills (M/s) Vs. Oriental Insurance Co. Ltd. 2013 (3) CPC page 437. The counsel for the opposite party further argued that the accidental benefit is not 
            Birmati Vs. LIC
                …5…
covered and payable under the policy because Ram Singh deceased was murdered and case was registered under Section 148/149/307/302 IPC and 25 of Arms Act against the accused. He further argued that as per the copy of challan submitted by the police in the court as Ex. OP-8 and FIR Ex. OP-12 intention of the accused was very much clear to murder the insured so murder does not cover under the definition of accident and complainant is not entitled the accidental benefit as claimed by her in this complaint.  On this point counsel for respondent relied upon the judgment rendered by Hon’ble National Commission case title Prithvi Raj Bhandari vs. Life Insurance Corporation decided on 26 May 2006 and Hon’ble National Commission  has mentioned in  per para 6 and 7 of the above said judgment as under:- 
“The Hon’ble Supreme Court had occasion to go in the similar set of circumstances, in the case of Smt. Rita Devi Vs. New India Assurnce Co. Ltd. IV (2000) SLT 179 II (2000) CLT 192 (SC)II(2000) ACC 291(SC) so case No.289 para 9 of this judgment is relevant for our purpose, which is as follows:-
“In our opinion, if the document intention of the act of felony is the kill any particular person then such killing is not an accidental murder but is a murder simplicitor, while if the cause of murder or act of murder was originally not intended and the same was caused in furtherance of any other felonious act then such murder is an accidental murder.”
    For our purpose, the important point to note is whether murder is an ‘accident’ would depend on the proximity of cause of such murder? 
            Birmati Vs. LIC
                …6…
Two points need to be noted in this regard. Firstly, there is no doubt that three criminal cases were filed against the decease/insured in 1996 and 1997 under I.P.C. Sections 427/336 as well as under Arms Act, 365,323 and 34, I.P.C. Sections 27/54/59 as also 397 case under section regarding theft of Cello Car. There is no disputing the fact that the deceased was acquitted in all these cases, but series of criminal cases filed against him as well as his killing by shooting him in the ear as also in the ribs, leaves us in no doubt that this was a murder by design and intent rather than a case of accident murder. Even though, the murderer could not be traced in this case but the two points made above ,i.e., the long criminal record as also the places where wounds have been made by bullet, unless something points out to the contrary, in our view, it would be case of intentional killing, i.e., murder of deceased, and shall not fall within the term’accident’ by any stretch of argument in the fact and circumstances in this case.
In the aforementioned circumstances, we are unable to satisfy ourselves that this was anything else, other than intentional killing/murder simplicitor and hence does not fall within the ward ’accident’. The State Commission quite correct in not allowing the ‘double accident benefit’ as the deceased does not satisfy the condition of the policy to be entitled for deriving the benefits under the ‘double murder’ befit scheme.
Appeal has no merit, hence dismissed”.  
8.    We have gone through the judgment dated 16.7.2014 state Vs. Raja Ram etc. as passed by Hon’ble District & Sessions Judge, Jind  
            Birmati Vs. LIC
                …7…
Ex. C-4 it is clear that prosecution has failed to prove its charge under Sections 148/302 and 307 read with Section 149 IPC and 25 of Arms Act. But it is clear from the judgment that court has not given the finding that deceased Ram Singh has not been murdered. Hence, above mentioned judgment is not helpful to the complainant. 
8.    We have also gone through the pleading of the complainant we observe that as per contention of the complainant mentioned in the complaint that complainant does not prove nor alleged under what circumstances Ram Singh deceased died which may constitute the accidental death. The authorities (Supra) tendered by the Ld. Counsel for  complainant are not disputed but not identical in the facts and circumstances in the present case whereas the authorities (Supra) tendered by the opposite parties are fully applicable in the present case. Hence, the complainant has failed to prove his case so  the complaint of the complainant is hereby dismissed. Parties will bear their own expenses. Copies of order be supplied to the parties under the rule. File be consigned to the record-room.
Announced on: 5.5.2016
                                  President,
    Member     Member                    District Consumer Disputes                                         Redressal Forum, Jind
Bharpal Vs. Birla Sun Life                
                    
Present:-    Sh. P.K. Batra, Adv. for  complainant. 
        Sh. Ashish Goyal, Adv.for opposite party 
                      Remaining arguments heard.  To come up on 13.7.16 for order
                                        President,
        Member             Member                                 DCDRF/Jind
                                        13.7.2016

Present:-    Sh. P.K. Batra, Adv. for  complainant. 
        Sh. Ashish Goyal, Adv.for opposite party.  
        Order announced. Vide our separate order of the even date, the complaint is dismissed. File be consigned to the record room after due compliance. 
                                                                                                    President,
        Member             Member                               DCDRF/Jind
                                        13.7.2016