SMT. BANDANA ROY, PRESIDENT

            Shortly stated the case of the complainant is that her daughter Madhuri Samanta had an Insurance Policy being No. 498670628 commenced on 27.01.2009 and the sum assured was Rs. 2,50,000/-.  In that Insurance policy the complainant Binapani Samanta was the nominee of her daughter. Binapanai Samnta died on 21.03.2011. The insured Madhuri Samnta paid  premium of the policy till her life time ie up to March, 2011 and the total premium deposited by her was Rs. 30,325/-.  The OP LICI did not pay any death benefit to the complainant on the plea that the insured had suffering from cancer before taking the policy. It is the case of the complainant that before taking the policy the doctor and also the agent of the OP examined the insured and then the policy was granted.

Hence, the instant case with the prayers as made in the complaint petition on the allegation of deficiency of service on the part of the OPs.

The OP No. 2 the Divisional Manager of the LICI contested the case by filing written version and prayed for dismissal of the complaint on various grounds of Law and also denied the material fact of the complaint.

The specific case of this OP is that a policy was issued in favour of the deceased on 27.01.2009. The premium of said policy was not paid regularly and hence, the policy became lapsed due to non- payment of premium. However the policy was revived on 28.12.2010  after completing all the formalities, but she died after two months twenty one days of the revival due to cardio respiratory failure in a case of Carcinoma.   On quarry, from the medical documents for treatment of illness of Ovarian Carcinoma an chemotherapy of Madhuri Samanta it appears that she had been suffering from 26.06.2010 to 24.10.2010 which fact was deliberately suppressed by the insured before revival of the policy. So the claim was repudiated by the competent authority as per Section 45 of the Insurance Act, 1938 and nothing is payable even the premium paid is also forfeited. Under the above circumstances, the OPs.  pray for dismissal of the complaint with costs.

            Point to be considered in this case is whether the case is maintainable and (2) whether Complainant is entitled to the relief(s) sought for by the complainant.

Decision with reasons

            Both the points are taken up together for consideration for the sake of convenience.

            We have carefully perused the affidavit of the complainant, the WV of the OP, the affidavit in-chief filed by the complainant, the questionnaires by OP and also the reply of the complainant and the documents filed by the parties.. Heard the argument advanced by the Ld. Advocate for the complainant and also the OPs. Considered.

            Admittedly the deceased, daughter of the complainant had a LICI policy issued by the Tamluk Branch  under the OP No. 2  Kharagpur  Division from 27.01.2009. According to the OPs  the premium of said policy was not paid and so, the policy lapsed due to non-payment of premiums. The complainant has stated in the complainant as well as in her affidavit in-chief that  the deceased  Madhuri Samnta (Panda) paid premium at the rate of Rs. 6065/- during her life time and the total amount of her deposited premiums is Rs. 30,325/- ( 6065 x 5).  Admittedly daughter of the complainant died on 21.03.2011 in Seva Nursing Home, Padumbasan, Tamluk, District Purba Medinipur due to cardiac respiratory failure due to electrolytic imbalance in a case of  ovarian cancer created with surgery  and chemotherapy. The complainant demanded the death claim before the OPs but the OPs did not allow the claim of the complainant on the ground  that at the time of revival of the policy  ie on 28.12.10 the daughter of the complainant Madhuri Samnta submitted in the revival form that she was not suffering from any illness requiring treatment in a week or more or undergone any test and she has good and sound health for procurement of the revival policy. 

            Ld advocate for the OPs referred  a decision of the case of Brij  Mohan Gupta Vs LICI and others reported in July 2016  Vol. III (State Commission Delhi).In a  similar case it was observed by the Bench  that the deceased had given wrong declaration while giving answered to various questions  in writing.

            In the case of Manika Rani Vs. LIC and others decided by the Hon’ble National Commission in Revision Petition  No 734/12 and in the case of Satwant Kaur Sandhu Vs. New India  Assurance Co. Ltd. (2009 CPF 8 (SC) insured was found not entitled  to the claim. In the case of Satwant Kaur  it was held that a contract of insurance  falling in the category  of contract ‘ uberrimai fide ‘ meaning a contract  of ‘utmost good faith’ on the part of the assured, the Hon’ble Apex Court  observed that assured is under a solemn obligation to make a true and full disclosure  of the information  sought for.  The obligation to disclose depends necessarily upon the knowledge  one possesses.  In the case of Budhiram  Pababhai Vs LIC of India decided  by the Hon’ble National Commission in Revision petition  No. 1312/2-0-06 it was held  that the endorsement  made by the doctor is mostly on the basis of the information provided by the customer. In view of the discussion above  and the case law, the Hon’ble Bench dismissed the Appeal as it was devoid of merits.

            In this case we have gone through all the medical papers. It is admitted that the deceased made a LICI policy on 2701.2009., From the copy of the premium receipts filed by the complainant (Annexure 2) it appears that the complainant’s daughter paid Rs. 6065/- on 31.02.2009 and she died on 21.03.2011.

            In paragraph 3 of  the examination in-chief  the complainant stated that  the deceased Madhuri Samanta paid premium of Rs. 6065/- regularly  during her life time ie up to March, 2011 and thus she paid total amount of Rs. 30,325/-.   The medical documents produced by the OP show  that the  complainant‘s daughter ‘s blood, thyroid etc. was tested in different diagnostic centre from 08.07.2010 after the policy was started in Repose Clinical and Research Centre Pvt. Ltd. which is found from the discharge certificate dated 05.09.2010.  In the report on the Examination of histopathology  it is seen that (1)cyst wall for H/P study (2)solid tissue (Ovarian dyst) for H/P Exam. Tissue measuring (1)  6 x 35 x 3 cm (2) 3 x 2.2. x 2 cm.    The Sections from the said cyst wall shows histology of ovarian stoma with congested vessels.  The section from the said solid tissue of the ovarian cystic lesion shows histology of a papillary serious cyst-adenocarconima of ovary with extensive tumor necrosis.

            But this report is given on examination of histopathology on 12,09.2010 much after  starting of the policy.  Not a single medical document of illness is there before starting of the policy  by the deceased.   

            From the death certificate dated 21.03.2011 it appears that the deceased died on 21.03.2011 due to cardio respiratory failure due to electrolyte imbalance in a case of ovarian cancer treating with surgery and chemotherapy. It appears from the revival of lapsed policy  dated 15.12.2010 that doctor asked the deceased “Are you  at present in sound health ? the patient/deceased answered  “good”. The revival policy was signed on 28.12.2010 and the deceased was admitted from 30.08.2010 to 05.09.2010 . No observation is understood from the document and the report dated 19.10.2010 issued by the Seva Nursing Home. However, she died on 21.03.2011. As because she stated before the doctor that she was of good health, the OP has alleged that the deceased deliberately suppressed at the time of revival of the policy  about her illness. So the OPs have repudiated the claim of the complainant U/S.45 of the Insurance Act 1938 and  for the same reason the premium amount has been forfeited.

It was further alleged that the complainant could not prove that Madhuri Samanta was of sound health before she died and she had natural death due to cardio respiratory failure   and she also failed to file any document  to support her claim.  Hence, the OP alleges that the claim of the complainant should be dismissed.

In this connection we want to refer a decision of 2018 (3) CPR 206 (NC) wherein it has been held  that non invasive cancer may sometimes develop into invasive cancer. 

It appears from the death certificate of the life assured that she died due to cardio respiratory failure due to electrolyte imbalance in a case of ovarian cancer treated with surgery and chemotherapy.

In the judgment of Hon’ble Supreme Court  in United  India Insurance Co. Ltd Vs. Harchand Rai Chandan Lal, 2004 AIR (SC) 4794, wherein the Hon’ble Court held as under : the terms  of the policy have to be construed as it is and we cannot add or subtract something. Howsoever, liberally we may construe   the policy but we cannot take liberalism to the extent of substituting the words which are not intended. It is settled law that terms of the policy shall govern the contract between the parties, they have to be abide by the definition given herein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presume that when the parties have entered into a contract of insurance with their eye wide open they can not rely on definition given in other enactment. Therefore, it is settled law that  the terms of the contract has to be strictly read and natural meaning  be given  to it. No outside aid should be sought unless the meaning is ambiguous.

Moreover a report filed by a US National Cancer Institute  staff published on August, 26 , 2015  reads as under :

A new study suggest that women who are diagnoses  with abnormal ells in the lining of a breast duct – a noninvasive condition called  ductal carcinoma in site, or DCIS – generally have a low risk of dying from breast cancer. In addition treating these lesions may help prevent a recurrence  in the breast but does not appear to decrease the already-low risk of dying from the disease, even after 20 years of follow up.

The findings from an observational study involving moiré than 100,000 women, were published August, 20 in JAMA Oncology, Stevan A. Narod,M.D of the Women’s College Hospital, Toronto, and his colleagues used data from NCI’s Surveillance, Epidemiology and End Results (SEER) program to estimate the death rate from breast cancer among women diagnosed with DCIS.

DICS refers to abnormal cells in the breast duct that form characteristic patterns detectable on mammography. In some case, DCIS may become invasive cancer and spread to other tissues. At this time, because of concerns that a small proportion of the lesions could become invasive, nearly all women diagnosed with DICs  currently receive some form of treatment .

From the documents filed by the OP 2 it cannot be understood whether the patient was under the treatment of any  Oncologist.  It the cancer was totally localized  and non – invasive , the regular follow up may not be required.

Ld Advocate for the complainant   submitted that  it was the duty of the Insurance Doctor to detect disease of the insured and after fully satisfied with the opinion of the doctor, the insurance policy should be started. In this case the policy was revived on 28.12.2010 and why the doctor believed the oral statement of the assured it cannot be understood . So the insured had no fault. It is very much clear that on 27.01.2009 when the insured made the policy for the first time she had not been suffering from any disease. At the time of revival of the policy on 28.10,2010 the doctor of the Insurance Co. failed to detect any disease  and doctor was fully satisfied about her health. It has not been challenged that the deceased paid premium of Rs. 30,325/-in total.  It is also not challenged that the nominee of the policy  was the complainant Binapani Samanta herself who is mother of the deceased. 

Considering  the materials on record and the submissions of the ld Advocates for  the parties, we are of the view that the OP should paid Rs.30,325/- to the complainant as premium which had been deposited by the daughter of the complainant, since deceased. But considering the facts of the case we do not want to allow any compensation or litigation cost to the complainant.

            Both the points are answered accordingly in favour of the complainant.

            Hence, it is

O R D E R E D

That CC/ 556 of 2017 be and the same is allowed on contest against both the OPs.

The OP No.2 is directed to pay the complainant an amount of Rs. 30,325 /-only within one month from the date of this order failing which the OP no. 2 would pay interest @ 9% per annum on the awarded amount till full satisfaction of the same.

 However, no order as to compensation or litigation is passed.

Let copy of the judgment be supplied to all the parties free of cost.