Complainant Rajesh Kumar Sharma and others have filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to release their claim amounting to Rs.10,50,000/- alongwith interest @ 18% per annum from the date of due till its actual realization. Opposite parties be further directed to pay Rs.1,00,000/- as compensation for physical harassment and mental agony alongwith litigation expenses, in the interest of justice.

2.        The case of the complainant in brief is that the deceased Life assured Smt.Rajni Sharma wife of Sh.Rajesh Kumar Sharma had taken the policy HDFC SL Youngstar Super Premium bearing no.17437579 on 20.02.2015 for sum assured Rs.10,50,000/- with the date of risk commencement 17.02.2015, Annual Premium Installment Rs.1,50,000/- and the deceased life assured deposited two annual installments to the opposite party no.1 as settled between the parties at the time of purchasing the policy. Smt.Rajni Sharma died on 8.5.2016 at Sri Hargobindpur, Tehsil Batala and she was nominated complainant no.1 Rajesh Kumar Sharma as her nominee. Complainant no.2 is son and complainant no.3 is daughter of the deceased life assured.  At the time of obtaining the insurance policy the deceased life assured was not suffering from any sort of disease as she was not having any disease earlier and she had no previous history of cancer disease. They completed all the formalities of the opposite parties after the death of deceased life assured for getting sum assured amount. They submitted all the relevant documents alongwith the original Insurance Policy to the opposite party no.1 for disbursement of claim. They many times approached to the opposite party no.1 and requested to make the payment of assured amount alongwith interest to them, but they put the matter pending with one pretext or the other. The opposite party repudiated their claim vide letter dated 2.9.2016 which is illegal, unlawful, null and void and is not sustainable. The Insurance Company had refunded only Rs.2,81,616.21p out of the paid premium of insurance policy as the fund value. The act of the opposite parties not to pay the insurance claim by repudiating the claim on false grounds is illegal, null and void. Thus, there is deficiency in service on the part of the opposite parties. Hence this complaint.

3.          Notice of the complaint was issued to the opposite parties who appeared through their counsel and filed their written reply by taking the preliminary objections that the complainant has no cause of action to file the present complaint; the complainant does not fall within the definition of consumer; the insurance is a contract between the two parties and actually at the time of getting policy, the insured concealed the material fact regarding the preexisting disease and wrongly gave answers to the questions as ‘No’. The letter dated 2 September, 2016 has been duly sent in which it has been duly mentioned that life assured was suffering from cervical cancer prior to the issuance of policy and this was not disclosed in the application dated 14 February, 2016. Had this information been provided to the company at that time of applying for the insurance policy, the company would have declined the application. So, there is no deficiency in services on the part of the insurance company and there is material concealment on the part of the complainant and the complainant has not approached this Forum with clean hands. On merits, it was submitted that at the time of getting policy, the insured concealed the material fact regarding the preexisting disease and wrongly gave answers to the questions as ‘No’. The letter dated 2 September, 2016 has been duly sent in which it has been duly mentioned that life assured was suffering from cervical cancer prior to the issuance of policy and this was not disclosed in the application dated 14 February, 2016. Had this information be provided to the company at that time of applying for the insurance policy, the company would have declined the application. So, there is no deficiency in services on the part of the insurance company and there is material concealment on the part of the complainant. The amount of Rs.2,81,616/- has been duly credited in the account of the complainant.  While denying and controverting other allegations leveled by the complainant, opposite parties have prayed for the dismissal of the complaint.

4.       Counsel for the complainant has tendered into evidence affidavit of complainant Ex.C1, alongwith other documents Ex.C2 to Ex.C9 and closed the evidence.

5.       Counsel for the opposite parties tendered into evidence affidavit of Sh.Arpit Higgins, Manager Legal Ex.OP-1,2/1 alongwith other documents Ex.OP-1,2/2 to Ex.OP-1,2/25 and closed the evidence.

6.     We analytically observe with the judicial precision and find that the OP insurers have arbitrarily repudiated (Ex.C6) on 02.09.2016 the complainant’s impugned death-claim for the sum assured of Rs.10,50,000/- for the reason that the DLI (Deceased Life Insured) has been suffering from Cervical Cancer much before purchasing the instant policy and its related information was suppressed in the proposal form filled at the time of its purchase. Further, as per the policy terms ‘pre-existing disorders’ were not covered. Somehow, the opposite party insurers here have failed to prove the alleged suppression of pre-existing ailment in the proposal form to justify its impugned repudiation through some cogent cum independent evidence necessary to be produced during the present proceedings and as such these amount to ‘bald’ statements, only.

7.       We find that the purchase and validity of the related policy have been duly admitted along with the factum of ‘early’ death of the DLI necessitating an investigation at insurers’ end. Further, the complainant has satisfactorily proved all the contents of his allegation-contented complaint through presentation of his evidentiary documents exhibited here as: (Ex.C1 to Ex.C9). The OP insurers in turn have produced the affidavit Ex.OP1,2/1 by its Manager Legal duly deposing the contents of the written statement along with the other evidentiary documents Ex.OP1,2/2 to Ex.OP1,2/25 but fail to prove/establish the allegations of suppression of pre-existing Cervical Cancer that otherwise has been merely an intimation by the insurer’s surveyor/ investigator having no better legal value than ‘hear-say’ evidence. Somehow, the OP insurers have failed to produce the investigator’s/surveyor’s/treating doctor’s affidavit and surgery/treatment schedule etc to prove their allegation of pre-existing disease/ailment etc and its subsequent suppression in the declaration proposal form Ex.OP1,2/3 that stands machine-filled but somehow left unstamped and unsigned by the Life to be Assured i.e., the DLA (Deceased Life Assured) and even by any staff of the OP Branch/Agent but for reasons best known to them alone. Of course, the other part(s) Ex.OP1,2/4 and Ex.OP1,2/5 are signed by the DLA as well as by the OP Agent and HDFC Bank Stamped/Signed as its Sale Authorized Representative but that does nowhere evidence the alleged suppression of pre-existing ailment of ‘cervical cancer’. The OP insurers have failed to produce any evidence in express legal terms pertaining to the alleged ‘suppression’ and that addresses its repudiation as arbitrary, unfair, unethical and for the sake of some collateral considerations, only. The OP insurers have based their above repudiation decision solely on presumptions and hearsay evidences and the same are not admissible in judicial adjudicatory. Further, there has been no documentary evidence available and/ or produced on the records of the proceedings proving the presence/knowledge/symptoms of the alleged ‘suppression’ of any pre-existing ailment (prior to the date of policy) to the DLA pertaining to the present death-claim as has been stood preferred.

8.       Thus, the alleged misrepresentation/concealment/non-disclosure of material facts etc do not stand proved. In such like repudiations the o. n. p. (onus of proof) always lay heavily upon the insurers but here they have miserably failed to legally discharge the same successfully. We are strengthened in our above legal proposition by virtue of the valuable comments as repeatedly made out by the honorable senior courts in many of the such-like situations. Moreover, it also does not stand proved on the present proceedings records that the DLA’s death was caused by pre-existing ‘cervical-cancer’ and its alleged suppression. We also find that the death-claim put forth by the complainant was kept illogically deferred awaiting ‘settlement’ for collateral but arbitrary reasons. Even, the expert professional opinion pertaining to pre-existing disease cannot be taken as an evidence of its ‘non-disclosure/suppression’ by the insured since the DLA may not be ‘herself’ aware of  the same as suppressed to her by her family members and/or of its suspicious presence in its latent hibernating state.

9.       In the light of the all above, we are of the considered opinion that the OP insurers have blatantly bruised the consumer rights of the present complainant by employing ‘unfair trade practice’ amounting to ‘deficiency in service’ (on their part) and that lines them up for an adverse statutory award under the applicable Consumer Protection Act’ 1986. We, therefore,  partly allow the present complaint and thus ORDER the OP insurers to pay the impugned ‘death-claim’ to the full sum-assured amount as per the governing ‘terms’ of the applicable Insurance Policy (to its full benefits) strictly in accordance with IRDA guidelines on ‘settlement of claims’ favoring the complainant besides to pay him Rs.10,000/- as cost and compensation within 30 days of receipt of the copy of the present orders otherwise the aggregate award amount shall attract interest @ 9% PA from the date of the orders till actual payment.

10.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.

                                                                        (Naveen Puri)

                                                                             President

ANNOUNCED:                                            (Jagdeep Kaur)

July 20, 2018.                                                      Member

*MK*