Punjab

Fatehgarh Sahib

CC/174/2013

kulwant kaur - Complainant(s)

Versus

Bjaj Allianz - Opp.Party(s)

Sh. R.P.S Cheema

21 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

                                                                     Consumer Complaint No.174 of 2013

                                                                                                                 Date of institution:  20/08/2013                                                                                                                                                                Date of decision   :  21.08.2015

1. Kulwant Kaur wife of late Sh. Jaspal Singh,
2. Harmanjot Singh son of late Sh. Jaspal Singh,

 

Both residents of H.No.336, Ward No.6, Aman Nagar, Defence Bandh, Fatehgarh Sahib, District Fatehgarh Sahib.

……..Complainants

Versus

 

1. Bajaj Allianz, Head Office, GE Plaza, Airport Road, Yerwada, Pune-411006 through its Manager.
2. Bajaj Allianz, Branch office, Ist Floor, Navdeep Complex, Opposite Income Tax Office, Patiala, through its Branch In-charge/ Manager.

…..Opposite parties

       

Complaint under Sections 11 to 14 of the Consumer Protection Act

Quorum

Sh. Ajit Pal Singh Rajput, President                                                                                                                                              Smt. Veena Chahal, Member                                                                                                                                                         Sh. Amar Bhushan Aggarwal, Member     

Present :    Sh. R.P.S.Cheema, Adv.Cl. for the complainant.                                                                                                                                      Sh. M.L.Singhi, Adv.Cl. for the OPs.

ORDER

By Sh. Ajit Pal Singh Rajput, President.

                  Complainants, Kulwant Kaur wife of late Jaspal Singh and Harmanjot Singh son of late Jaspal Singh, both residents of H.No.336, Ward No.6, Aman Nagar, Defence Bandh, Fatehgarh Sahib, District Fatehgarh Sahib, being first class legal heirs of deceased Jaspal Singh, have filed this complaint against the Opposite parties (hereinafter referred to as “the OPs”) under Sections 11 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.               The deceased Jaspal Singh was the insurance policy holder under Ashgain Economy, bearing policy No. 0197319185, for the sum assured of Rs.3,00,000/- and he had paid the policy charges/required fee at District Fatehgarh Sahib as per the terms and conditions of the policy in question. The deceased Jaspal Singh was expired on 25.07.2012 after an operation of Brain Tumor, which was detected at the time of his treatment at Hospital.  The information regarding the death of Jaspal Singh was given to the opposite parties along with other documents including original policy.  The concerned officer/agent, who took these documents from the complainants, took the signature of complainants on some blank papers.  The complainants have fulfilled all other required formalities and  visited the office of OP No.2 for receiving the payment of claim amount along with interest. But after some days, the complainants received a letter dated 14.01.2013 from the OP No.1, that the claim under policy in question was rejected due to “Diabetes Mellitus type-2 and Hypertension”. Thereafter, the complainants again requested the opposite parties that the deceased was healthy person and was not suffering from the said diseases, but the concerned dealing hand demanded Rs.30,000/- from the complainants to clear the claim amount. Thereafter, the OPs totally refused to pay the claim amount to the complainants, which amount to deficiency in service on their part. Hence, this complaint for giving directions to the opposite parties to pay Rs. 3,00,000/-, as claim amount along with interest and Rs.50,000/-, as compensatory charges.

3.               The complaint is contested by opposite parties, who filed joint written reply. In reply to the complaint it took preliminary objections that the complainants have no locus standi to file the present complaint as they have concealed  the true and correct facts just to derive illegal financial gains; the complainants are stopped to file the instant complaint due to their own act and conduct and this Forum has no territorial jurisdiction to entertain the present complaint as no cause of action has arisen in the territorial jurisdiction of this Forum. On merits the OPs stated that the deceased life assured Mr. Jaspal Singh, proposed for a non-linked regular premium Cash Gain Economy Policy after fully understanding the terms and conditions thereof and submitted a proposal form dated 24.12.2010 duly signed by him. The deceased however deliberately, dishonestly and with a malafide intention concealed true and correct  facts regarding his health at the time of proposal for insurance and gave wrong & false information & statements in the said proposal form. As per various investigations, medical reports & documents and hospital treatment records of Fortis Hospital, Mohali, it is confirmed that deceased life assured Mr. Jaspal Singh was a known case of Hypertension and Diabetes Mellitus for 10 to 12 years prior to his admission in the said hospital and was a known case of Polio affected Left Ankle since Childhood.  The complainant No.1 herself has mentioned in the claimant’s statement that the life assured expired natural death thus, it was due to prolonged illness of the deceased. The claim under the policy in question was legally and rightly repudiated for non disclosure of material facts by the deceased at the time of proposal for insurance. After denying the other averments made in the complaint, they prayed for dismissal of the complaint.

4.               In order to prove the case, the complainants tendered affidavit of complainant No.1 as Ex. C-1, attested copies of treatment records Ex. C-2 to Ex. C-5, attested copy of death certificate Ex. C-6, attested copy of renewal premium receipt Ex. C-7, attested copy of certificate for premium paid Ex. C-8, copy  of letter dated 14.01.2013 Ex. C-9, attested copy of report of MRI scan Ex. C-10, affidavit of Kulwinder Singh Ex. C-11, affidavit of Kuldeep Singh Ex. C-12 and closed the evidence. In rebuttal the OPs tendered in evidence attested copy of bill dated 14.08.2012 Ex. OP-1,  attested copy of detailed bill dated 14.08.2012( containing 42 pages) Ex. OP-2, attested copy of bill dated 14.07.2012 Ex. OP-3, attested copy of detailed bill dated 14.07.2012(containing 4 pages) Ex. OP-4, true copy of admission sheet of Jaspal Singh Ex. OP-5, true copy of general consent for admission Ex. OP-6,  true copy of counseling form Ex. OP-7, true copy of discharge summary Ex. OP-8,  true copy of patient history and physical record( containing 6 pages) Ex. OP-9,  true copy of progress notes Ex. OP-10( containing 10 pages), attested copy of investigation flow chart Ex. OP-11(containing 2 pages), true copy of culture report Ex. OP-12(containing two pages), true copy of MRI Diagnostic and consent form Ex. OP-13( containing 2 pages), true copy of daily nursing care plan Ex. OP-14( containing 3 pages), true copy of vital signs flow sheet Ex. OP-15 (containing 4 pages), true copy of daily nursing flow sheet Ex. OP-16 (containing 12 pages), nursing admission assessment Ex. OP-17 (containing 4 pages), true copy of medication administration record Ex. OP-18 (containing 5 pages) true copy of guidelines Ex. OP-19(containing 5 pages), true copy of hand over audit check list Ex. OP-20 (containing 2 pages), true copy of daily balance sheet Ex. OP-21, true copy of clearance for disposal Ex. OP-22, true copy of notice to Fortis Hospital Ex. OP-23, copies of treatment records Ex. OP-24 to OP-111,  affidavit of Rajinder Singh Kalsi Ex. OP-112  and closed the evidence.

5.               The ld. counsel for the complainant has submitted that the main controversy in the present case is that the claim of the deceased Jaspal Singh was repudiated on the basis that deceased had concealed the fact, that he was suffering from Diabetes Mellitus type-2 and Hypertension. He further submitted that the cause of the death was not due to Diabetes Mellitus type-2 and Hypertension rather deceased died due to brain tumor and the same is evident from the treatment record of Fortis Hospital i.e Ex. C-2 to Ex. C-5. The ld.counsel argued that the OPs have repudiated the claim not in a bona fide manner but on the arbitrary ground, which is not sustainable in the eyes of law. He pleaded that from the perusal of the treatment record i.e Ex.OP-2 to Ex.OP-111 produced by the OPs, it is no where mentioned that cause of the death was due to Diabetes Mellitus type-2, Hypertension and Polio. The ld. counsel further submitted that the OPs have failed to prove the medical record produced as no doctor was examined. The ld. counsel to support his contention has relied upon the case titled as Life Insurance Corporation of India Vs Kamla Devi Gupta,2007(1)CPC 473,wherein it has been held in para no.3,                      “Submission advanced by Mr. Manoj Kumar for petitioner is that Radhey Shyam Gupta was suffering from Bronchitis, Myolgia, T.B. and Spondylitis. He had taken medical leave from 22.02.1991 to 28.02.1991 on ground of his suffering from bronchitis and commuted leave from 27.05.1993 to 01.06.1993 on ground of his suffering from fever.  He was also disbursed for anti T.B. medicines purchased from the market. In support of the submission, our attention was drawn to the medical certificate(copy at page 31), application for commuted leave (copy at page 33) and list of medicines whereof cost was reimbursed(copy at pages 34-35). Medicines shown in the list were purchased sometime in 1992. Certificate at page 31 would show that life assured was recommended leave from 22.02.1991 to 28.02.1991 on ground of his suffering from bronchitis. Application at page 33 pertains to commuted leave from 27.05.1993 to 01.06.1993. As may be seen from the order of State Commission the petitioner had not produced any record to show that the life assured ever remained admitted in any hospital and/or treated for cancer prior to 30.08.1994. Order further notices that non disclosure of bronchitis and/or T.B. in the proposal form did not amount to suppression/concealment or mis-statement of material facts justifying the repudiation of claim on that account by the petitioner Insurance Company. Order also notices the provisions contained in Section 45 of the Insurance Act. In the facts of present case, we are not inclined to take a view different from that taken by the State Commission in the matter. There is no illegality or jurisdictional error in the order of State Commission warranting interference in revisional jurisdiction under Section 21(b) of the C.P.Act, 1986. Accordingly, revision petition is dismissed”.

6.               On the other hand, the ld. counsel for the OPs has submitted that the claim has been repudiated as the deceased had concealed the fact that he had been suffering from Diabetes Mellitus type-2 and Hypertension. The ld.counsel stated that it is well established from the treatment record i.e Ex. OP-2 to Ex. OP-111 that deceased was suffering from Diabetes Mellitus type-2 and Hypertension and concealment of this fact means breach of the contract of insurance. The ld. counsel to support his contention has relied upon the judgment of Hon’ble State Commission, Punjab in case Life Insurance Corporation of India Vs Piari Devi & Ors, II (2008) CPJ 156, wherein it has been observed in Para No.30 that, “The Fact remains that even if the serious disease from which the insured was suffering before filling the proposal form and which was kept concealed by him might not have any nexus with the cause of death. Still it amounts to suppression of material facts sufficient enough for the repudiation of the claim. The reason is simple that if the insured was suffering from a major disease and if the said disease had been disclosed, either the Insurance Company would not have insured the deceased or the insured would have been asked to get conducted some medical tests in order to arrive at the conclusion about the real disease from which the insured had been suffering and to decide whether to execute the insurance policy or not. The concealment of such a major disease obviously leads to the presumption that the insured had an intention to defraud the Insurance Company”. The ld. counsel has pleaded that the present case is covered by the aforesaid judgment as the same is based on same and similar facts. He argued that the documents could not be proved as this Forum only adjudicates the cases in a summary manner and there is no provision in the Consumer Act to examine or record the evidence elaborately or cross examining the entire witnesses.

7.               After hearing the Ld. Counsel for the parties and going through the pleadings and evidence produced by them and oral as well as written submissions, we find that the case law titled as Life Insurance Corporation of India Vs Piari Devi & Ors (Supra) relied upon by the ld. counsel for the OPs is based on same and similar facts and the Hon’ble State Commission, Punjab has elaborately interpreted the issue involved in the present case also. The case law citied by the ld. counsel for the complainants is not fully applicable to the present case in hand. We are of the opinion that submission of ld. counsel for the complainants that the Ex-OP2 to Ex- OP 111 were required to be proved by examining the witnesses and doctors by the OPs cannot be accepted as this Forum only adjudicates upon the cases in a summary manner. The Hon’ble State Commission, Punjab in a case Savitri Devi Vs Guru Ram Dass Jee International Airport,2015(3) CLT 415(PB) has observed that “where the matter cannot be adjudicated without recording elaborate evidence involving cross-examination of witnesses, the complainant be directed to approach competent civil court to seek redressal of her grievance”.

8.               Accordingly, in view of our aforementioned discussion and the judgment relied upon by the OPs. We find that disease concealed might not have any kind of nexus with the cause of death but it amounts to suppression of material facts. Hence the present complaint is disposed of with liberty to the complainants to approach the appropriate Court of law, in case they wish to prove or lead voluminous evidence and may be entitled to the benefit of the observations of the Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute II(1995) CPJ 1 (SC) : 1995 3 SCC 583 for the purpose of exclusion of time spent before this Forum. Parties to bear the cost.

9.               The arguments on the complaint were heard on 18.08.2015 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:21.08.2015                                                                   (A.P.S.Rajput)                                                                                                                                                                                           President

 

(Veena Chahal)

    Member

 

(A.B. Aggarwal)       

     Member