District Consumer Disputes Redressal Forum, Tarn Taran (Punjab)

C.C. No.               :  86 of  2014

Date of Institution  :  12.12.2014

Date of Decision    :  02.09.2015

Narinder Kaur widow of Kashmir Singh resident of House No. 251, Jhabal Road, Tarn Taran Tehsil and District Tarn Taran.

                                                                   …Complainant

                                               Versus           

1. Branch Manager, Birla Sun Life Insurance Co. Ltd. S.C.O First Floor, District Shopping Centre, Ranjit Avenue Amritsar. 143001
2. Authorised Officer, Birla Sun Life Insurance Company Limited, G. Corp Tech Park, 5^th & 6^th Floor, Kasar Wadavali, Ghodbunder Road, Thane-400 601
3. Executive Head, Birla Sun Life Insurance Company Limited, One Indiabulls Centre, Tower 1, 15^th and 16^th Floor, Jupiter Mill Compound, 841, Senapati Bapat Marg, Elphinstone Road Mumbai-400 013.

…Opposite Parties.

Complaint Under Section 11, 12  & 13 of the Consumer Protection Act, 1986.

Present:      

For the complainant                  Sh. M.P. Arora Advocate

For the Opposite parties            Sh. Mohan Arora Advocate      

Quorum:     Sh. J.S.Khushdil,  President.

Sh. R.D. Sharma Member.

Smt. Jaswinder Kaur, Member

(Sh J S Khushdil, President)

1. Narinder Kaur has filed this complaint under Section 11, 12 and 13 of the Consumer Protection Act 1986 (herein-after called as ‘the Act’) against Branch Manager, Birla Sun Life Insurance Co. Ltd. S.C.O First Floor, District Shopping Centre, Ranjit Avenue Amritsar. 143001 and others (herein-after called as ‘Opposite Parties- Insurance Company’) supported by various documents levelling allegations of deficiency of service on the part of the opposite parties.

2        As per the complaint, the Opposite Parties- Insurance Company is dealing in the life insurance policies and for that purpose, they had spread out number of agents in the field for covering the life risks of common man. In order to secure the business and for having monetary gains, the Opposite Parties- Insurance Company usually allures and gives lucrative offers to the common man at the time of giving policies and assured that in case of any untoward incident occurred, Opposite Parties- Insurance Company would give all the benefits and the sum assured at the door steps of the family of the insured. The complainant has claimed that she is house wife and is not fully literate lady. The agents of the Opposite Parties- Insurance Company approached the complainant and her husband and gave lucrative offers for having a life insurance policy. The family of the complainant got attracted to the offer made by the Opposite Parties- Insurance Company. The complainant agreed to insure the life of her husband Kashmir Singh through Opposite Parties- Insurance Company vide Policy No. 005629388 called ‘BSLI Vision Plan’ for a sum of Rs. 4,90,000/-. The policy was issued on 12.7.2012 and its date of maturity was 12.7.2056. The premiums were to be paid up to 12.1.2031 and the annual premium to be paid was fixed as Rs. 38,016.91 Paise. However, Semi annual installments of Rs.18,723.33/- were fixed which were to be paid after every 6 months on or before 12^th of January and then in July of every year. The guaranteed survival benefit was of Rs. 6,25,730/-. The date of birth of Kashmir Singh was 1.1.1956. Narinder Kaur complainant was the nominee of Kashmir Singh insured under the said Policy. According to the complainant, first installment of Rs. 18,723.33 Piasa was paid on 12.7.2012 at the time of issuance of the policy.  It was submitted that the complainant gave requisite information regarding the death of Late Kashmir Singh by lodging death claim under policy Number 005629388. The complainant furnished the detail/ documents, such as death certificate, etc. It was alleged that the officials of the Opposite Parties- Insurance Company kept mum for several months since the death of Kashmir Singh, thereafter, just to save their skin and money declined the genuine claim of the complainant. It was alleged that the Opposite Parties- Insurance Company have  repudiated the claim on the basis of false, fabricated and forged medical certificate which has never seen the light of day, because Kashmir Singh had never taken treatment from Guru Nanak Dev Super Specialty Hospital Tarn Taran and the deceased had never suffered from alleged diseases like Dysphagia, Dyspepsia and Achalasia. It was further submitted that it was the duty of the Opposite Parties- Insurance Company to have a thorough check up. Moreover, competent doctors of the Opposite Parties- Insurance Company i.e. Deep Multi Super Specialty Hospital, G.T.  Road, Bathinda had medically examined Kashmir Singh (deceased) at the time of issuance of the said policy and had given their report dated 4.7.2012. The Opposite Parties- Insurance Company, thereafter, issued the policy in favour of Kashmir Singh. It was submitted that the officials of the Opposite Parties- Insurance Company had thoroughly verified the facts through medical examination and personal investigation conducted at the spot. It was submitted that it was established that the deceased Kashmir Singh was never treated and affected from any disease, therefore, the information was correctly given to the Opposite Parties- Insurance Company. It was submitted that Opposite Parties- Insurance Company had illegally and without any basis had repudiated the claim of the complainant. The complainant has made several requests for re-consideration of death claim of her husband but of no avail, even at the higher level, up to Ombudsman. It was submitted that this Forum has jurisdiction as the complainant is resident of Tarn Taran. The complainant, therefore, prayed to this Forum to accept her complaint and to award the following relief against Opposite Parties- Insurance Company:-

          (i)      Rs. 4,90,000/- with interest up to date.

(ii)      Rs. 2,00,000/- as compensation towards mental and physical harassment.

(iii)     Rs. 22,000/- as costs of litigation

(iv)     Pendenelite interest at the rate of 12% per annum.

3        Notice of this complaint was issued to the opposite parties which appeared through counsel Sh. Mohan Arora Advocate and filed joint written version wherein various preliminary objections have been taken inter alia that the complainant is not a consumer as the complainant has tried to misguide this Forum; that the complaint is not maintainable as no cause of action has ever arisen in favour of complainant; that Kashmir Singh (deceased) has submitted a proposal/ application dated 18.6.2012 for purchase of BSLI Vision Plan, which was issued by Opposite Parties- Insurance Company. Consequently, the policy bearing No. 005629388 dated 12.7.2012 was issued. The term of policy was up to the age of 100 and pay term was for 19 years and sum assured was Rs. 4,90,000/- and the annual premium was Rs. 3,80,016.91 Paise. However, Kashmir Singh (deceased) had chosen to pay semi-annual premium to the tune of Rs. 18,723.33 Paise. It was submitted that on the basis of information furnished in the application/ proposal form, the proposal was processed by the Opposite Parties- Insurance Company and insurance policy No. 005629388 was issued to Kashmir Singh (deceased). It was also submitted that Kashmir Singh was given necessary guidance and was also apprised with the terms and conditions of the policy before the applicant (Kashmir Singh) put his signatures thereon. According to Opposite Parties- Insurance Company, Kashmir Singh had signed the application with his free will and consent. It was also submitted that on 6.12.2012 the Opposite Parties- Insurance Company received the death claim intimation. It was pleaded that unfortunately, Kashmir Singh expired on 6.8.2012 i.e. within 23 days from the date of issuance of the insurance policy. It was also pleaded that the claim was very early, therefore, the Opposite Parties- Insurance Company got conducted the investigation through the investigating agency i.e. Sharp Eagle Investigation Pvt. Ltd. New Delhi. From the perusal of investigation report, it transpired that Kashmir Singh deceased Life Assured besides being Anaemic was also suffering from Dyspepsia, Dysphagia and Achalasia prior to the filling in the proposal form and policy issuance.  The Opposite Parties- Insurance Company have  also explained the various medical terms:-

          According to Opposite Parties- Insurance Company

5. Anemia is usually defined as a decrease in the amount of red blood cells (RBCs) or the amount of hemoglobin in the blood. It can also be defined as a lowered ability of the blood to carry oxygen.
5. Dyspepsia is a term which describes pain and sometimes other symptoms which come from your upper gut (the stomach, oesophagus or duodenum)
5. Dysphagia means Difficulty in swallowing, when it takes more time and effort to move food or liquid from your mouth to your stomach. Dysphagia may also be associated with pain.
5. Achalasia is a rare disorder that makes it difficult for food and liquid to pass in to your stomach. Achalasia occurs when the food tube (esophagus) loses the ability to squeeze food down, and the muscular valve between the esophags and stomach doesn’t fully relax. The reason for these problems is damage to the nerves in the esophagus. There’s no cure, but achalasia can usually be managed with Surgery.

It was alleged that from the medical documents, it came into light that Kashmir Singh took treatment from Baba Deep Singh Ji Charitable Hospital, Amritsar on 8.11.2011 and also from Guru Nanak Dev Super Specialty Hospital, Tarn Taran on 6.12.2011 with the problem of Anaemia, Dyspepsia, Dysphagia and Achalasia. It was alleged that Kashmir Singh was suffering from above mentioned diseases before filling and signing the proposal form on 18.6.2012. In this way, Kashmir Singh has concealed the factum of his taking treatment from Baba Deep Singh Ji Charitable Hospital, Amritsar on 8.11.2011 and also from Guru Nanak Dev Super Specialty Hospital, Tarn Taran on 6.12.2011. It was further submitted that Kashmir Singh had concealed the material information regarding his health in the proposal form submitted by him. As per Opposite Parties- Insurance Company Kashmir Singh insured gave the following declaration:-

          The Opposite Parties- Insurance Company have  mentioned a number of judicial pronouncements in its written version and has also referred to Section 45 of the Insurance Act, 1938. It was submitted that the relations between the insured and the insurer is of utmost good faith and is based upon ‘Uberrima Fides’. It is submitted that as Kashmir Singh has concealed the material facts regarding his health from Opposite Parties- Insurance Company, therefore, the claim of the complainant was rightly rejected. On merits, also stand of the Opposite Parties- Insurance Company was same as mentioned in Preliminary objections. In this way, the allegations contained in the complaint were denied being wrong and false and finally prayed for dismissal of the complaint.

4        The complainant in order to substantiate her claim tendered in to evidence her duly sworn affidavit Ex. C-1, affidavit of Suba Singh son of Teja Singh resident of village Jhabal Road Tarn Taran Ex. C.2  alongwith following documents

Ex. C.3        Self attested copy of document of Birla Sun Life qua detail of policy addressed to Kashmir Singh complainant.

Ex. C.4        Self attested copy of document qua detail of policy of Birla Sun Life

Ex. C.5        Self attested copy of tests of Kashmir Singh from Deep Multi Super Specialty Hospital Bathinda.

Ex. C.6        Self attested copy of Identity Card of Kashmir Singh issued by Election Commission of India.

Ex. C.7        Self attested copy of Identity card of Narinder Kaur issued by Election Commission of India.

Ex. C.8        Self attested copy of death claim notification cum acknowledgement letter dated 6.12.2012.

Ex. C.          9        Self attested copy of death certificate of Kashmir

Singh

Ex. C.          10      Self attested copy of representation dated

9.7.2013 addressed to Birla Sun Life Insurance Co. Ltd. G. Cop. Tech Park, 6^th Floor Kasar Vadavali, Ghodunder Road, Thane

Ex. C.11      Self attested copy of repudiation letter dated 31^st March, 2013 addressed to complainant by Birla Sun Life Insurance

Ex. C12.      Self attested copy of representation dated 9.7.2013 of complainant addressed to Ombudsman, SCO No. 101, 102 & 103, 2^nd Floor, Batra Building, Sector 17-D, Chandigarh

Ex. C13.      Self attested copy of representation dated 18.7.2014 of complainant addressed to the Insurance Ombudsman, Office of the Insurance Ombudsman S.C.O No. 101-103, 2^nd Floor Batra Building, Sector 17 D Chandigarh

Ex. C14.      Self attested copy of another representation of

complainant addressed to the Insurance Ombudsman, Office of the Insurance Ombudsman S.C.O No. 101-103, 2^nd Floor Batra Building, Sector 17 D Chandigarh

Ex. C15.      Self attested copy of pass book of complainant in

Central Bank of India

Ex. C16.      Self attested copy of order dated 5.11.2014 of Insurance Ombudsman Chandigarh

and closed the evidence.

5        On the other hand, to rebut the evidence of the complainant,  Opposite Parties- Insurance Company have tendered in to evidence affidavit of Ms. Aakriti Manocha, Assistant Manager Ex. OPs 1 to 3/1 alongwith following document

Ex. OPs 1 to 3/2              Self attested copy of affidavit of Raj

Kumar acting on behalf of Sharp         Legal Investigation Pvt. Ltd. Noida

Ex. OPs 1 to 3/3             Self attested copy of death claim

intimation form

Ex. OPs 1 to 3/4             Self attested copy of Declaration 

and authorization by Narinder Kaur

Ex. OPs 1 to 3/5             Self attested copy of death certificate

of Kashmir Singh

          Ex. OPs 1 to 3/6             Self attested copy of O.P.D. Slip

dated  8.11.2011 (objected to)

          Ex. OPs 1 to 3/7             Self attested copy of O.P.D. Slip

                                                Dated 6.12.2011 (Objected to)

Ex. OPs 1 to 3/8             Self attested copy of Haematology report Dated 6.12.2011

Mark OPs 1 to 3/A          Photostat copy of resolution passed by the Board of Directors of Birla Sun Life Insurance Company Limited at the Board Meeting held on August 1, 2014   

Mark OPs 1 to 3/B          Photostat copy of Management Sub Delegation

Mark OPs 1 to 3/C          Photostat copy of Application / Proposal form.

Mark OPs 1 to 3/D          Photostat copy of repudiation letter dated 31^st March 2013 (Also Ex. C.11)

Mark OPs 1 to 3/E          Photostat copy of order of Ombudsman Chandigarh (Also Ex. C.-16)

and closed the evidence.

6        We have heard the ld counsel for the complainant as well as Opposite parties and also gone through the written arguments filed by the parties and also perused the evidence produced on record by both the parties with the assistance of ld. counsel for the parties.

7        Sh. M.P. Arora Advocate ld. counsel for the complainant has made submissions by highlighting the averments made in the complaint and also referred to the identical evidence both oral as well as documentary mentioned supra. It was submitted that the Opposite Parties- Insurance Company had illegally repudiated the claim of the complainant mainly on the alleged investigation done by opposite Parties- Insurance Company through investigating agency i.e. Sharp Eagle Investigation Pvt. Ltd. New Delhi which reveals that deceased was suffering from Anaemia, Dyspepsia, Dysphagia and Achalasia diseases prior to the proposal form and issuance of insurance policy. According to the said investigating agency, deceased Kashmir Singh was under treatment at Baba Deep Singh Ji Charitable Hospital, Amritsar on 8.11.2011 and also at Guru Nanak Dev Super Specialty Hospital, Tarn Taran on 6.12.2011. It was submitted that deceased Kashmir Singh never took any treatment from aforesaid hospitals. The Opposite Parties- Insurance Company have neither examined any doctor who allegedly treated Kashmir Singh nor affidavit of any such treating doctor has been placed on record. It was submitted that if, the so called prescription slips (Ex OPs. 1 to 3/6 and Ex. OPs 1 to 3/7) taken in to consideration even then, it is not proved that deceased was suffering form any such diseases alleged by the Opposite Parties- Insurance Company prior to issuance of insurance policy. It was submitted that the investigating agency i.e. Sharp Eagle Investigation Pvt. Ltd. New Delhi has not examined any treating doctor who had allegedly treated Kashmir Singh (deceased) for Anaemia, Dyspepsia, Dysphagia and Achalasia, nor any record from two hospitals i.e. Baba Deep Singh Ji Charitable Hospital, Amritsar and Guru Nanak Dev Super Specialty Hospital, Tarn Taran were taken in to possession. It was submitted that authorities of Guru Nanak Dev Super Specialty Hospital, Tarn Taran have clearly reported that the doctor had not served in the said hospital. According to Guru Nanak Dev Super Specialty Hospital, Tarn Taran, this hospital came in existence on 28.12.2012 i.e. after the alleged treatment got by Kashmir Singh(deceased). The reference was again given to prescription slips Ex OPs. 1 to 3/6 and Ex. OPs 1 to 3/7. It was submitted that it appears that the Opposite Parties- Insurance Company have taken false and frivolous ground to repudiate the claim of the complainant. Ld. counsel for complainant has referred to the proposal form mark OPs 1 to 3/C and also medical tests of Kashmir Singh Ex. C.5 dated 4^th July 2012 at the time of submitting of proposal / application form. It was submitted that on the basis of this proposal form as well as this medical test, the insurance policy was issued. It was submitted that if the said medial report was not to the satisfaction of the Opposite Parties- Insurance Company or some more tests were required, then the Opposite Parties- Insurance Company were at liberty to get the detailed medical tests done from any other doctor/ hospital to their satisfaction. It appears that the Opposite Parties- Insurance Company were satisfied with the medical tests. Perusal of report Ex. C.5 shows that there was no indication of any such disease due to which the Opposite Parties- Insurance Company had repudiated the claim of the complainant. It was further submitted that nothing prevented the Opposite Parties- Insurance Company to get conducted the detailed medical examination of Kashmir Singh even on his own expenses. It was submitted that at no stage, Kashmir Singh took treatment from any where including the hospitals i.e. Baba Deep Singh Ji Charitable Hospital, Amritsar and Guru Nanak Dev Super Specialty Hospital, Tarn Taran. It was submitted that Opposite Parties- Insurance Company availed several opportunities to examine any of the doctor from those two hospitals to testify that Kashmir Singh had undergone any treatment for diseases namely Anaemia, Dyspepsia, Dysphagia and Achalasia. The medical prescription slips being relied upon by the Opposite Parties- Insurance Company remained unproved. As such, the medical prescription slips Ex. Ex OPs. 1 to 3/6 and Ex. OPs 1 to 3/7 have no evidential value. It was submitted that the Opposite Parties- Insurance Company have failed to prove that Kashmir Singh was suffering from any disease prior to issuance of insurance policy in question. It was argued that the Opposite Parties- Insurance Company have  moved an application for summoning the concerned doctor of Baba Deep Singh Ji Charitable Hospital, Amritsar to prove the prescription slip No. 916801 dated 8.11.2011(Ex. OPs. 1 to 3/6) but that doctor was given up. No doctor from Guru Nanak Dev Super Specialty Hospital, Tarn Taran was ever served and examined, though summons were issued by this Forum. However, report has been received that Guru Nanak Dev Super Specialty Hospital, Tarn Taran has been inaugurated on 28.12.2012, therefore, no record is available. He submitted that prescription slip Ex. OPs 1 to 3/7 is dated 6.12.2011 and same has no evidential value. He submitted that this prescription slip is without any supporting record. For the sake of arguments, if Kashmir Singh was really suffering from the disease ‘Dysphagia’, it appears that the concerned doctor has given the name of disease on guess work. It was urged that this prescription slip as well as test report Ex. OPs 1 to 3/8 are manipulated during so called investigation by investigating agency of the Opposite Parties- Insurance Company. Had those documents were true, then the investigating agency i.e. Sharp Eagle Investigation Pvt. Ltd. New Delhi would have recorded the statement of treating doctor or any other person of the hospitals concerned. It is also urged that for the argument sake, if it is presumed that Kashmir Singh suffering from the disease Dysphagia as alleged by Opposite Parties- Insurance Company, then it was encumbered upon the Opposite Parties- Insurance Company to prove the nexus of diseases with death. It was submitted that Opposite Parties- Insurance Company wrongly and illegally repudiated the legal and genuine claim of the complainant. Ld. counsel for complainant further submitted that the procedure adopted by this Forum under the Act is summary in nature and the documentary evidence is placed on record by both the parties and the instant complaint may be decided in a summary manner. Ld. counsel for the complainant has placed on record various judicial pronouncements which as follows:-

(i)      M/s ICICI Prudential Life Vs Veena Sharma 2014(4) CLT  507 (NC)

(ii)      National Insurance Company Ltd. Vs Balwinder Singh 2012(1) CLT 34 by Hon’ble Punjab State Consumer Disputes Redressal Commission, Punjab Chandigarh

(iii)     Kotak Mohindra Old Mutual Life Vs Chander Isarsingh 2013(3) CLT 186 by the Hon’ble State Consumer Disputes Redressal Commission Ahemdabad.

(iv)     Tarlok Chand Khanna Vs United India Insurance Co. Ltd. 2012(2) CLT 617 (NC)

5. United India Insurance Company Vs Safiya 2013(3) CLT 195 by the Hon’ble Kerala State Consumer Disputes Dressal Commission, Thiruvananthapuram

It was prayed to accept the complaint and to award the relief as claimed.

8        Ld. Counsel for Opposite Parties- Insurance Company Sh.Mohan Arora Advocate has argued that Kashmir Singh (deceased) was guilty of suppression of material facts from the Opposite Parties- Insurance Company and due to that suppression qua pre-existing disease, the Opposite Parties- Insurance Company had rightly repudiated the claim of the complainant. The Opposite Parties- Insurance Company admitted the issuance of policy and payment of first premium of Rs. 18,723.33 Paise. It was argued that relationship between the insured and the insurer is of utmost good faith and is based upon ‘Uberrima Fides’.  It was submitted that Kashmir Singh died on 6.8.2012 within 23 days from the issuance of policy i.e. on 12.7.2012. It was argued that the detail investigation was got conducted through Sharp Eagle Investigation Pvt. Ltd. New Delhi which disclosed that Kashmir Singh was suffering from Anaemia, Dyspepsia, Dysphagia and Achalasia and this fact was concealed by Kashmir Singh insured. It was admitted that the Opposite Parties- Insurance Company availed sufficient opportunities to lead the evidence, however, the Opposite Parties- Insurance Company have  tendered in evidence the documents whatsoever were in possession or available with the Opposite Parties- Insurance Company. Ld. Counsel for Opposite Parties- Insurance Company has referred to detail pleadings viz a viz written version. His arguments oral as well as written were more or less on the same line as of version of Opposite Parties- Insurance Company. It was submitted that it was obligatory on the part of insured to furnish all information correctly which was sought from him by the insurer. It was submitted that in the instant case, Kashmir Singh had not disclosed the true and full facts, therefore, he was guilty of suppression of material facts. It was admitted that Kashmir Singh life assured had undergone medical examination before issuance of policy. It was submitted that said test Ex. C.5 dated 4^th July 2012 was on self reference and not from any panelist doctor of the Opposite Parties- Insurance Company. It was required from Kashmir Singh to disclose all facts about his pre existing diseases. Ld. counsel for Opposite Parties- Insurance Company have  urged that insurance company has rightly repudiated the claim of the complainant on this ground, more so, the complainant has also approached the Ombudsman which rejected the claim of the complainant, reference was also made to the order of Ombudsman Ex. C.16. He submitted that no appeal against the said order was ever preferred. Ld. counsel for Opposite Parties- Insurance Company have placed reliance upon the following judicial pronouncements to strengthen its point:-

(i)      Life Insurance Corporation of India Vs Santosh Devi Revision petition No. 3042 of 2008 (NC) decided on 3.9.2014

(ii)      Divisional Manager, LIC of India & Ors. Vs Smt.Anupama & Ors. Revision Petition Nos. 3794-3796 of 2007 (NC) decided on 17.4.2014

(iii)     M/s Birla Sun Life Insurance Co. Vs Richa Goel Revision Petition No. 1166 of 2010 (NC) decided on 13.1.2015

4. Birla Sun Life Insurance Co. Ltd. Vs Manjeet Revision Petition No. 1139 of 2014 (NC) decided on 23.2.2015
5. Chairman Birla Sun Life Insurance Co.Ltd.  Vs Smt. Asha Revision Petition No. 930 of 2008 (NC) decided on 5.8.2014
6. Aviva Life Insurance Co. India Ltd. Vs Mrs. Sween Goyal Revision Petition 3053 of 2009 (NC) decided on 21.11.2014
7. Daljit Singh Dogra Vs ING Vysya Bank Ltd. and Others  Consumer complaint No. 16 of 2007 29.1.2009 by the Hon’ble Punjab State Commission

Ld. Counsel for Opposite Parties- Insurance Company raised another point that matter in question involves complicated questions of law and facts, therefore, the matter is required to be relegated to the Civil Courts. Ld. Counsel for the Opposite Parties- Insurance Company placed reliance upon the following judicial pronouncements.

(i)      M/s Bajaj Allianz Life Insurance Co. Ltd. Vs Bhupinder Singh, First appeal No. 297 of 2011 decided on 9.1.2012 by the Hon’ble State Consumer Disputes Redressal Commission, Union Territory, Chandigarh

(ii)      ICICI Prudential Life Insurance Company Vs Roshni Devi, First appeal No. 872 of 2013 decided on 9.5.2014 by the Hon’ble State Consumer Disputes Redressal Commission, Haryana, Panchkula

(iii)     Oriental Insurance Company Ltd. Vs Munimahesh Patel 2006(2) CPC 668 by Hon’ble Supreme Court of Inida.

Ld. counsel for Opposite Parties- Insurance Company prayed that the instant complaint may be relegated to the Civil Court or in the alternative, the present complaint be dismissed.

9        We have taken in to consideration the contentions and rival contentions of both the parties in the light of record.

10      Before proceedings further in to the matter it would be just and appropriate to discuss judicial pronouncements of both sides mentioned above.

11      In case M/s ICICI Prudential Life Insurance company Ltd. Vs Veena Sharma & Others (Supra), the Hon’ble National Commission held that it was for the insurance company to prove that complainant was suffering from pre-existing disease and has knowingly failed to disclose the same. The Hon’ble National Commission has also relied upon a case decided by the Hon’ble Supreme Court titled Balwinder Kaur Vs Life Insurance Corporation of India, Civil Appeal No. 7969 of 2010 decided on 13.9.2010, wherein it was held that the onus to prove that deceased had obtained policy by suppressing the material facts relating to his illness, was on the corporation at the time of taking policy and he deliberately suppressed the facts.

12      In case National Insurance Company Limited and Another Vs Balwinder Singh (Supra), the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh held that the appellants have not produced any evidence to prove that before the purchase of policy the insured/ respondent had taken any treatment from any doctor or any hospital and the insured/ respondent had the knowledge that he was suffering from the heart disease. This pronouncement was based upon the decision of the Hon’ble Apex Court in case titled LIC Vs GM Channabasamna, 1991(1) SCC 357  and of the Hon’ble National Commission in case titled LIC Vs Joginder Kaur and others, 2005(2) CLT 229.  

13      In case Kotak Mohindra Old Mutual Life Insurance Ltd. Vs Chander Isarsingh Dhansinghani & anr (Supra), the Hon’ble State Commission Ahemdabad held that Doctor certificate without any affidavit of the doctor in support cannot be basis for repudiation of claim. It was held that the onus was upon the appellant to prove that the insured suppressed material facts. In this pronouncement citations Smt. Sunita Agarwal Vs LIC of India, III (2005) CPJ 446 = 2005 CTJ 874 relying on Supreme Court Judgment in case of Mithoolal Nayak, AIR 1962 SC 814, the Hon’ble MP State Commission were discussed.

14      In case Tarlok Chand Khanna Vs United India Insurance Co. Ltd. (Supra) wherein the Hon’ble National Commission held           that onus to prove was on the respondent/ insurance company regarding pre existing disease. In that case insurance company repudiated the claim on the ground that replacement of knees cannot occur within days or months and infact takes years for the keens to degenerate to a condition where total replacement is medically advised. In this case, Tarlok Chand Khanna obtained a mediclaim insurance policy from the respondent/ Insurance company valid from 1.1.2002 to 31.12.2002 for a sum of Rs. 1,50,000/- for himself and his wife Smt. Kurana Khanna. Smt. Karuna Khanna developed pain in her knees and on 15.9.2002 she underwent surgery for knees replacement of her both knees at a total cost of Rs. 1,78,945/-. She died due to sudden Cardiac arrest in the hospital on 29.9.2002. The complaint to claim the expenses was dismissed by the District Forum on the ground that there is no affidavit of any doctor of Nayyar Hospital nor there is any death certificate issued by Cardiologist showing cause of death of the wife of the complainant as cardiac arrest on 29.9.2002. The Hon’ble State Commission also dismissed the appeal. Sh. Updip Singh, ld. counsel for revisionist contended before the Hon’ble National Commission that the onus to prove that she had a pre-existing disease was on the respondent who failed to file any expert medical or credible evidence in support of its case. The counsel for petitioner relied upon a case titled National Insurance Co. Ltd. Vs Raj Narain, 1(2008)CPJ 501(NC), wherein Hon’ble National Commission had observed as follows:-

“Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Company relies on their Clause 4.1 of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy.” In view of the above facts, the Fora below erred in saying that claim was rightly repudiated.  

          In a nutshell it was held that onus was on the insurance company to prove that insured was suffering from pre-existing disease at the time of purchase of policy.

15      In case United India Insurance Company Vs Safiya (Supra), identical view was taken by Hon’ble Kerala State consumer Disputes Redressal Commission, Thruvananthapuram

16      In case Life Insurance Corporation of India Vs Santosh Devi (Supra), the Hon’ble National Commission held the repudiation justified. In that case insured was alcoholic. He got the insurance policy on 27.11.2003 and died in the intervening night of 13/14.1.2004. The District Forum has held the repudiation of claim was not justified since the deceased had died due to heart attack and not from alcoholism. Hon’ble State Commission has dismissed the appeal. The Hon’ble National Commission held that deceased insured suppressed the material facts from the insurance company and he had to undergo treatment for de-addiction in a hospital for a number of days. The insurance policy was taken on 27.11.2003, whereas the insured was admitted in hospital during the period from 28.8.2003 to 13.9.2003 i.e. about 16 days.

17      In case Divisional Manager, LIC of India and Ors Vs Smt. Anupama and Ors. (Supra) the complaint was allowed by the District Forum and the appeal was dismissed by majority of Hon’ble State Commission with a view that mere giving of case history of the deceased by the attendant is not the sufficient ground to repudiate the claim. There is no fraudulent suppression of material facts on the part of the life assured.  The petitioner in that case was alcoholic and he developed Cirrhosis of Liver and subsequently expired from this disease within 7 months of his taking the last insurance policy of Rs. 15,00,000/- . The Hon’ble National Commission held that it is medically well established that Cirrhosis of Liver does not develop overnight and one of the most common causes of the disease is alcoholism. The Hon’ble National Commission held the repudiation justified.

18      In case M/s Birla Sun Life Insurance Co. Vs Richa Goel (Supra), Ashok Goel took the insurance policy from M/s Birla Sunlife Insurance Company Ltd. on 28.2.2005 but died on 20.7.2005 i.e. with five months after obtaining the Insurance Policy. His claim was repudiated on the ground that insured was suffering from pre existing disease. In that case, the complaint was allowed by the District Forum on the ground that the penal doctors of insurance company had examined him. In that case Hon’ble National Commission justified the repudiation.

19      In case Birla Sun Life Insurance Co. Ltd. Vs Manjeet (Supra) the life assured died on 1.11.2009. The insurance company repudiated the claim on the ground that he concealed the material facts of his suffering from diabetes mellitus at the time of submission of the proposal form. The District Form partly allowed the complaint. However, the Hon’ble State Commission dismissed the appeal preferred by the Insurance Company. The insurance company argued before the Hon’ble National Commission that the insured has concealed the fact of his being diabetes for the last 15 years. The claimant side had contended that the insurance proposal was accepted by the petitioner / opposite party after the medical examination of the life assured. The Hon’ble State Commission was of the view that the Sugar level was tested at the time of proposal form and it was found within range. The Hon’ble National Commission was of the view that the view of Hon’ble State Commission was fallacious because even in a case of person suffering from diabetes, the sugar level can be kept under control by regulating the diet and taking medicine oral or injectable. Therefore, the sugar level test by itself is not an assurance that the person is not suffering from diabetes. The Hon’ble National Commission held that the insured had concealed the material facts.

20      In case The Chairman Birla Sun Life Insurance Co. Ltd. Vs Smt. Asha (Supra), the insured died on 21.2.2005 due to Hypertension and Diabetes. The complainant lodged the claim which was rejected by the opposite party on the ground of suppression of material facts in respect of heath of insured. The Hon’ble National Commission held that the deceased had suppressed the material facts of his disease in the proposal form.

21      In case Aviva Life Insurance Company India Ltd. Vs Mrs. Sween Goyal(Supra),  Arun Kumar Goyal took a life insurance policy for a sum of Rs. 4,95,000/- on 26.2.2007 and paid one time premium of Rs. 99,000/- However, the maturity of policy was 26.2.2012 but he died on 30.11.2007.  The insurance company repudiated the claim on the ground that he was diabetic for the last 10 years and was         under insulin.   The   insured  was   also  an  Alcoholic  for            more than 5 years and had undergone medical treatment for the same at Silver Oaks Hospital 2 years back. District Forum allowed the complaint holding that there is no evidence that the insured was ever suffering from diabetes mellitus prior to taking the life insurance policy and based the finding of Life Insurance Corporation of India Vs Satinder Kaur, III (2008) CPJ 279. The Hon’ble U.T. State Commission had dismissed the appeal in limini holding that there was no material worth the name had been made available to point out that heart attack has any link with the consumption of alcoholic beverages. The Hon’ble National Commission, thereby held that the insured had suppressed material facts with regard to his health.

22      We have taken in to consideration the submissions of both the sides in the light of record and we have also considered the case law cited by both the parties.            

23      First of all, it is necessary to mention here that the procedure adopted by Consumer Fora is summary in nature. In the instant case, both the parties have produced sufficient evidence on the record and we do not find any complicated question of facts and law, therefore, we do not find any reason to relegate the matter to Civil Court. The objection as well as contention of ld. counsel for the Opposite Parties- Insurance Company is not tenable. Consequently, we proceed to decide this case on merits on the basis of evidence adduced by both the parties.

24      As per version of the complainant, she is widow of Kashmir Singh. Kashmir Singh got insurance policy No. 005629388 called BSLI Vision Plan issued on 12.7.2012 with maturity date 12.7.2056 from Opposite Parties- Insurance Company. Annual premium was to be paid up to 12.1.2031 i.e. amounting to Rs.38,016.91 Paise. However, half yearly installment of Rs.18,723.33 Paise was fixed. As per version the sum assured was Rs. 4,90,000/- and survival benefit was Rs. 6,25,730/-. As per version of the complainant, half yearly installments were to be paid on or before of 12^th day of January and then in July of every year. Kashmir Singh died on 6.8.2012. According to complainant, after her death she lodged a death claim of Kashmir Singh under policy No. 005629388. But the Opposite Parties- Insurance Company repudiated the claim without any cogent reason and efforts for reconsidering the claim of the complainant were also found no favour. Opposite Parties- Insurance Company in its written version have admitted the issuance of policy for BSLI Vision Plan. It was also admitted that the sum assured was for Rs. 4,90,000/- with annual premium was Rs. 38,016.91 Piasa. Payment of half yearly premium i.e. Rs. 18,723.33 Paisa was also admitted. It was also admitted that premium was to be paid for 19 years. The Opposite Parties- Insurance Company admitted the death of Kashmir Singh as 6.8.2012 i.e. within 23 days from the date of issuance of the insurance policy. It has also been admitted that they have received intimation on 6.12.2012. According to version of the Opposite Parties- Insurance Company, Kashmir Singh (now deceased) was suffering from diseases i.e. Dysphagia, Dyspepsia and Achalasia at the time of filling in and signing the proposal form and in this way, he had concealed the factum of previous diseases from Opposite Parties- Insurance Company. Opposite Parties- Insurance Company got conducted the investigation through the investigating agency i.e. Sharp Eagle Investigation Pvt. Ltd. New Delhi. The Opposite Parties- Insurance Company have mentioned about the case law in its pleading which was not required but the Opposite Parties- Insurance Company were only required to give the factual position.

25      There is no dispute regarding the issuance of insurance policy as well as payment of premium. The death of Kashmir Singh insured as on 6.8.2012 approximately after 23 days of the issuance of the policy, has not been denied. This Forum does not find any reason to accept the objections of the Opposite Parties- Insurance Company that the complainant is not a consumer. There is no denial that medical test of Kashmir Singh was not got done before issuance of the policy. The objections that medical test was got conducted from Deep Multi Super Specialty Hospital, G.T.  Road, Bathinda is not tenable or acceptable on the simple reason. If the Opposite Parties- Insurance Company were having any doubt regarding the said medical examination, then Opposite Parties- Insurance Company were at liberty to get Kashmir Singh (insured) examined through any other doctor of their choice. The Opposite Parties- Insurance Company have not produced before us any list of panelist doctor/ hospital, so as to exclude Deep Multi Super Specialty Hospital, G.T.  Road, Bathinda. It is the Opposite Parties- Insurance Company which have taken specific plea that Kashmir Singh (deceased) was under treatment at Baba Deep Singh Ji Charitable Hospital, Amritsar and Guru Nanak Dev Super Specialty Hospital, Tarn Taran for alleged diseases Anaemia, Dyspepsia, Dysphagia and Achalasia. To prove the pre existing diseases the Opposite Parties- Insurance Company have  produced on record prescription slips Ex. OPs 1 to 3/6 and Ex. OPs 1 to 3/7. In our opinion those two documents are not sufficient to accept or prove that Kashmir Singh was having pre existing disease. Mere writing some disease on the prescription slips Ex. OPs 1 to 3/6 and Ex. OPs 1 to 3/7 does not mean that patient definitely suffering from the said disease, more so, the disease was subject to confirmation from the tests prescribed on the margin of the prescription slip. It is added that no such report has been placed on record. It is further notable point that Opposite Parties- Insurance Company have got investigated the case from Sharp Eagle Investigation Pvt. Ltd. New Delhi, but no such evidence has come on the surface through that agency also. Nothing had prevented the Opposite Parties- Insurance Company to get the insured thoroughly examined before issuance of the policy, after all, the insurance company was to incur huge liability. It was required from the Opposite Parties- Insurance Company to get the insured thoroughly examined and then to issue policy which it has not done so rather made a base on the simple examination (Test Report) Ex. C.5. It appears that at that time the goal of the Opposite Parties- Insurance Company was only to fetch business and it had forgotten its liability part. No treating doctor from any of the hospital has been examined to prove any record of treatment of  pre existing diseases. Again, this Forum is of the view that matter was to be got investigated before issuance of the policy. The test report Ex. C.5 at the time of issuance of policy does not indicate any pre existing disease. It is not the case of the Opposite Parties- Insurance Company that the insured had taken some medicine to suppress those diseases. The documents placed on record by the Opposite Parties- Insurance Company to prove the pre existing disease are without any authentication and proof, therefore, the Opposite Parties- Insurance Company were not justified in repudiating the claim on the basis of those documents. It is a notable point that this Forum has given sufficient time to Opposite Parties- Insurance Company to adduce the evidence to its satisfaction and it has failed to examine any treating doctor of Kashmir Singh insured. It is further a notable point that Opposite Parties- Insurance Company have failed to prove any nexus between the disease as well as death of Kashmir Singh. Kashmir Singh had died due to natural death. The rejection of claim by Ombudsman would not debar the complainant to maintain this complaint. If the complainant has not preferred any appeal against the order of Ombudsman then it would not affect the right of the complainant to file the instant complaint which is otherwise permissible under law. In a nutshell the onus was on the Opposite Parties- Insurance Company to prove whatsoever it has alleged.

26      We have also gone through the ruling titled Birla Sun Life Insurance Company Ltd. Vs Kiran Prafull Bahadure 1(2015) CPJ 473 (NC) wherein the repudiation of claim was not held justified. In that case, the deceased husband of the complainant was suffering from Ischemic Heart Disease prior to his application for taking the insurance cover, whereas the husband of the complainant was died of natural death. The Hon’ble National Commission held that no evidence was produced by the insurance company that deceased was suffering from any heart disease since 10.2.2010. In that case the policy was taken on 19.5.2011 and deceased had deposited half yearly installment i.e. Rs. 15,000/- and died on 26.9.2011. Similar view was taken by the Hon’ble Chhattisgarh State Commission in case titled L.I.C. of India Vs Kanchan Thawait, wherein Hon’ble State Commission held that mere production of medical certificate is not sufficient to prove pre-existing disease. We are of the further view that Anemia could have been detected from the blood test. In the blood test report Ex. OPs 1 to 3/8 the hemoglobin is found 9.0 gm%. It cannot be said that it is a lower side indicating Anemia.  

27      We have also gone through the Judgment of Apex Court titled as BIHAR SCHOOL EXAMINATION BOARD vs. SURESH PRASAD SINHA” IV (2009) CPJ 34 (SC), where the Hon’ble Supreme Court of India has held that “It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.”  So, keeping in view the supra judgment of Hon’ble Supreme Court of India, the rulings referred to by the Opposite Parties- Insurance Company which are on different facts, have no bearing to the facts of the present case because each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases and we respectfully of the view that rulings cited by the Opposite Parties- Insurance Company are not applicable to the facts of the present case. 

28      Therefore, we accept this complaint and the Opposite Parties- Insurance Company are directed:-

i)        To pay 4,90,000/- i.e. sum insured to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim till the date of this order. 

ii)       To pay a sum of Rs. 20,000/- being consolidated amount of compensation which includes counsel fee and litigation expenses.

29.     The  Opposite Parties- Insurance Company  are  directed to comply with this order within 60 days from the date of receipt of copy of this order, failing which the  Opposite Parties- Insurance Company will pay interest @ 6% per annum on the principal amount of Rs. 4,90,000/- to the complainant from the date of this order till its realization. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room. 

Pronounced in open Forum.

Dated: 02.09.2015

                                                    (J.S.Khushdil)

                                                           President

                           (Jaswinder Kaur  Dolly)            (R.D.Sharma)

                                        Member                            Member