BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.169 of 2014.
Date of Instt.: 17.09.2014.
Remand: 14.07.2017.
Date of Decision: 19.09.2017.
Bhajan Lal son of Ram Sarup resident of village Bhutan Kalan, Tehsil and District Fatehabad.
..Complainant
Versus
1.Birla Sunlife Insurance Company Limited, on the upper side Canara Bank, G.T.Road, Fatehabad through its Branch Manager.
2.Birla Sunlife Insurance Company Limited Claims Department, G Group Tech. Park, 6th floor Casher Vadavali Ghodeluper Road, Thane West 400601 through its Branch Manager.
…Respondents/OP
Before: Sh.Raghbir Singh, President.
Mrs.Ansuya Bishnoi, Member.
Sh.R.S.Panghal, Member.
Present: Sh. Ravi Soni, Advocate for complainant.
Sh.M.K.Dharnia, Advocate for the respondent.
ORDER
The present complaint was previously decided ex-parte by this Forum vide order dated 18.03.2015. Aggrieved by the ex-parte order dated 18.03.2015 the OPs filed an appeal before the Hon’ble State Commission, Haryana. The Hon’ble State Commission was pleased to set aside the order dated 18.03.2015 and the matter was remanded to this Forum with directions to decide the same on merits after affording opportunity of filing reply to the OPs.
2. The brief facts of the present complaint are that Late Smt. Sunita Devi wife of complainant got herself insured with the OPs vide policy No.5063291 commencing from 23.08.2011 and premium was paid by the insured for the insurance policy. It is further submitted that the insured was hale and healthy at the time of issuance of insurance policy and there was not any kind of history of any disease prior to her death. The state of health of the insured was also checked before issuance of the insurance by the doctor on the penal of the insurance company. Unluckily, the insured died during the subsistence of the policy. Thereafter the complainant being husband and nominee of the deceased life assured intimated to the OPs with regard to the death of the insured and requested for death claim. The complainant completed all the formalities and furnished the requisite documents to the OPs. The OPs also assured that the claim will be disbursed within a short period. However, the insurance claim has not been disbursed to the complainant by the OPs despite many requests made by him. It is further submitted that there is deficiency on the part of OPs in rendering service to the complainant and on account of the same the complainant has suffered mental agony and physical harassment. Hence, this complaint.
3. The above said complaint has been resisted by the OPs by filing a written statement wherein various preliminary objections have been raised; that the instant complaint is false, malicious and incorrect; that the averments made in the complaint are vague and have been made with malafide intent; that the present complaint does not fall within the definition of the consumer dispute as provided in the Consumer Protection Act, 1986; that no cause of action has arisen in favour of the complainant to file the present complaint. On merits, it is submitted by the OPs that on the basis of information as furnished in the proposal form, the proposal of DLA was processed by the OPs and thereafter the policy in question dated 25.08.2011 was issued to the life assured. Before acceptance of the policy adequate information with regard to the policy was also given to the life assured. Before acceptance of the policy all the terms and conditions were also apprised to her. It is further submitted that in the proposal form there was a specific question that 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, gastrointestinal, liver disease, tuberculosis, asthma or any other lung diseases, blood disorders, anaemia, endocrine or Thyroid disorders. The above said question was replied by the life assured in negative. However during the death claim investigation it was revealed to the OPs that the life assured was diagnosed and treated for Hyper Tension with Chronic Obstructive Pulmonary Disease with effusion prior to the proposal for insurance. The same is evident from the copy of the medical record of Dahiya Nursing Home, Fatehabad dated 08.06.2010 and 09.06.2010 and from the copy of Sewak Sabha Charitable Trust Hospital dated 10.10.2011 on wards. Had the life assured replied the aforesaid question correctly the OPs would not have issued the policy on the existing terms. It is also further submitted that on the basis of aforesaid medical documents the OPs sought opinion from Dr.C.H.Asrani having advance diploma in Forensic Medicine and toxicology, who opined that there had been a non-disclosure prior to issuance of policy and the DLA was a known case of Hyper Tension and COPD for which she was hospitalized and treated in June 2010 i.e. prior to issuance of the policy. The Doctor further opined that it was a material non-disclosure. It is further submitted that since the answers given by the DLA in proposal form were found to be false and fake with intention to cheat and defraud the OPs as such the OPs had no other alternative except to repudiate the claim vide repudiation letter dated 14.03.2013. It is further submitted that the repudiation of the claim of the complainant vide letter dated 14.03.2013 is perfectly in order and sustainable in the eyes of law. There is no deficiency on the part of OPs in rendering service to the complainant. Therefore the present complaint deserves dismissal.
4. In evidence the complainant tendered his affidavit as CW1 wherein the averments made in the complaint have been reiterated. The complainant also tendered in evidence insurance policy as Ex.CW1/1, death certificate of Sunita Devi as Ex.C2 and premium paid certificate as Ex.C3 whereas OPs in evidence tendered documents OP-1 to OP-9 and closed their evidence.
5. In his arguments the learned counsel for the complainant contended that nothing has been concealed by DLA regarding her state of health in filing the proposal form for getting the insurance plan and she remained hale and healthy before issuance of the insurance. Moreover, her state of health was duly checked by the doctor on the penal of the OPs before issuance of the policy. It is further contended by the learned counsel that the documents relied upon by the OPs, i.e. medical treatment record of the DLA of Dahiya Nursing Home and Sewak Sabha Charitable Trust Hospital, are only photo-copies and the same cannot be read in evidence. Moreover the OPs have not filed affidavit of the doctors who gave treatment to the DLA. Opinion obtained from Dr. C.H.Asrani is of no significance as the said doctor had not given any treatment to the DLA. Therefore the genuine claim of the complainant has been illegally repudiated by the OPs. This amount to deficiency on the part of the OPs in rendering the service to the complainan. In support of his contentions the learned counsel relied upon the judgments rendered by Hon’ble National Commission in case titled as Bajaj Allianz Life Insurance Company Vs. Raj Kumar-III(2014) CPJ 221 (NC) and in case SBI Life Insurance Company Ltd. Vs. Harvinder Kaur and reported as III(2014) CPJ 552(NC) wherein the Hon’ble National Commission has held that examination of the doctor or his affidavit who allegedly treated insured was necessary to prove the photocopy of discharge card.
6. On the other hand the learned counsel for the OPs in his arguments reiterated the averments made in the written statement filed by the OPs and contended that since the DLA had concealed the pe-existing disease in the proposal form filed by him for getting the insurance plan as such the claim of the complainant for receiving insurance benefits has been rightly repudiated by the Ops vide letter 14.03.2013. The repudiation of the claim by the OPs is perfectly in accordance with the terms and conditions of the policy duly conveyed to the DLA and the same is sustainable in the eyes of law. In his arguments the learned counsel for OPs relied upon the judgments as mentioned in the written statement filed by the OPs. The learned counsel prayed for dismissal of the complaint being devoid of any merits.
7. We have examined the pleadings, documents and affidavits filed by the parties and have also given thoughtful consideration to the arguments advanced by learned counsel of the parties. It is admitted that Smt. Sunita Devi wife of the complainant got her life insured with the OPs vide policy No.5063291 dated 25.08.2011. It is also not disputed that Smt. Sunita Devi died on 10.12.2011 i.e. during the subsistence of the insurance policy dated 25.08.2011 and installments of premium were also deposited by the DLA with the OPs. The OPs have repudiated the claim of the complainant on the ground that the DLA had not disclosed the true and material facts with respect to state of her health in the proposal form filed by her for taking the insurance policy. We find force in the contention raised by counsel for the OPs. From perusal of the record it is revealed that in the proposal form there were specific questions bearing No.11(B)(C)(i)(ii)(D)(E) 14(i)(a)(ii)(a)(b) and (n) and the same were replied in negative by the DLA. The aforesaid question and reply there to is reproduced as under:-
“11 Insurability declaration for the life to be insured:-
B.In the past five years, have you ever undergone any surgical operation at a Hospital or clinic or undergone any investigation with other than normal or negative results (including X-rays, ECG, blood tests, biopsies etc)?.............................................................No.
C.i) Are you on diet or any other medicine of any kind as prescribed by a doctor?....................................................No.
ii) Are you currently undergoing or intend to undergo and treatment?.................................................No.
D. Do you have any physical defects, impairment, deformities and/or any condition affecting mobility, sight and/ or hearing?................................................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, gastrointestinal, liver diseases, tuberculosis, asthma or any other lung diseases, blood disorders, anaemia, endocrine or thyroid disorders?.........................................No.
14. Medical History
(i) Within the past 5 years, have you;
(a) Consulted any doctor or health practitioner except for common cold, influenza lasting less than 4 days?......................................No.
(ii) Have you ever sought advice or suffered from any of the following?
- Chest pain, high blood pressure, stroke, high cholesterol, heart attack, heart murmur or other heart disorders?.......................No.
- Asthma, chronic cough, pneumonia, shortness of breath, tuberculosis, (TB) or other respiratory or lung disorders?...............No.
- Any other illness, surgery or injury?..........................No.
A perusal of the above reveals that the DLA had answered in negative to all the questions put to her. However from perusal of Annexure OP -3 i.e. copy of medical treatment record dated 08.06.2010 and 09.06.2010 of Dahiya Nursing Home Pvt. Ltd. Fatehabad it is established that the deceased life assured was diagnosed and treated by hypertension with chronic obstructive Pulmonary Disease (COPD) with effusion prior to the filing of proposal for insurance. Therefore, the DLA had concealed the material fact regarding her state of health in the proposal form for taking the insurance policy and the same is in-violation the terms and conditions of the insurance policy and against the law of insurance. It is a well settled principle of law that the contract of insurance is a contract of aberrima fides and there must the complete good faith on the part of the assured and thus the assured is under a solemn obligation to make full disclosure of material fact, which may be relevant for the insurer to take into account while deciding whether the proposal should be accepted or not. The declaration in the proposal form and the statement given by the life assured were the basis of contract of mutual trust between the insurance and the assured and any false statement given with respect to state of health or disclosing the false information would make the compact vitiate as has been done in the present case. Reliance is placed on the case law titled Satwant Kaur Sandhu Vs. New India Assurance Company Ltd. reported in IV(2009)8 SCC Page 316 and P.C.Chacko and anr. Vs. Chairman L.I.C. India 2008 (1) SCC 321.
Contention of the learned counsel for the complainant to the extent that original record of the treatment of DLA has not been produced by the OPs and the photo copies of the same cannot be read in evidence and cannot be relied upon, is not tenable as the provisions of Indian Evidence Act are not strictly applicable in the Consumer Protection Act, 1986. Therefore a photo copy of the document can be relied upon provided that otherwise or contrary is not proved on the file. The complainant could have also summon the doctor of the concerned hospital to prove that the document of medical treatment of DLA has not been issued by the said hospital.. Moreover the functionaries of hospital i.e. Dahiya Nursing Home do not have any interest in the OPs nor they are inimical to the complaint nor they have motive to issue a false certificate. Therefore in case the medical treatment record is not supported by the affidavit of the concerned doctor, does not take away the beneficiary value of the document. It is also pertinent to mention here that the complainant at no stage had pleaded that he was not treated in Dahiya Nursing Home. Therefore we are of the considered opinion that it is a valid piece of evidence. A perusal of medical treatment record dated 08.06.2010 and 09.06.2010 of DLA reveals that prior to filing the proposal form she was suffering from Hypertension with Chronic Obstructive Pulmonary Disease (COPD) with effusion. The said disease is a progressive disease and gets worse with the lapse of time and is susceptible to life threatening complications. Therefore the disease COPD was a serious disease and concealment of the same amounts to suppression of a material fact. It is also pertinent to mention here that the DLA died just within four months from the date of filing of proposal. Since the death of DLA has occurred within a short period from the date of filing of proposal form as such inference can be drawn that she had intentionally concealed the diseases while filing the proposal form. Therefore keeping in view the medical treatment record Annexure C-3 which is prior to the filing of proposal and keeping in view that the DLA died shortly from the date of insurance of the policy we are of the considered opinion that there is no deficiency of the part of OPs in repudiations the claim of the complainant. The present complainant is dismissed accordingly. Copy of this order be supplied to the parties free of cost as per rules. File be consigned after due compliance.
Announced in open Forum.
Dated: 19.09.2017.
(Raghbir Singh)
President
(Ansuya Bishnoi) (R.S.Panghal) District Consumer Disputes
Member Member Redressal Forum,Fatehabad
