West Bengal

Paschim Midnapore

CC/91/2011

Smt. Niyati Dey - Complainant(s)

Versus

Branch Manager, L.I.C.I. - Opp.Party(s)

24 Aug 2012

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

Complaint case No. 91/2011                                              Date of disposal: 24/08/2012                               

BEFORE : THE HON’BLE PRESIDENT :  Mr. K. S. Samajder.

                                                      MEMBER :  Mrs. Debi Sengupta.

                                                      MEMBER :  Mr. Kapot Chattopadhyay.

 

For the Complainant/Petitioner/Plaintiff: Mr. A. K. Dutta. Advocate.

For the Defendant/O.P.S.                          : Mr. D. Ghosh. Advocate.

        Smt. Niyati Dey  W/o-Late Arun Kumar Dey, C/o-Sudin Kumar Dey At Habibpur,

        Kalitelirchawk, P.O.-Midnapore, Dist-Paschim Medinipur………….Complainant.

                                                              Vs.

1. Branch Manager, L.I.C.I., Kharagpur Branch, O.T. Road,  Inda, P.O. & P.S- Kharagpur,  Dist-Paschim Medinipur
2. Divisional  Manager, L.I.C.I., Kharagpur Branch, O.T. Road,  Inda, P.O. & P.S- Kharagpur,  Dist-Paschim Medinipur …………………………….Ops.

                    The case of the complainant, unnecessary details apart, is as follows

                    These two cases were heard together as the parties to the cases are same and the nature of relief claimed is also the same.  Cause of action of these two cases also occurred at the same time.  So, both the cases were heard together and by this judgement we shall dispose of both the cases.

                    The facts of both the two cases are same.  Complainant’s husband late  Arun Kumar Dey, during his life time, purchased policy Nos.435714551 and 435715856 and the sum assured in these two policies were Rs.51,000/- and Rs.40,000/- respectively.  The proposal of those two policies were made on 24/2/2004 and the policies were purchased on 28/2/2004.  The date of maturity of both the two policies were 28/2/2024 and the Ops issued the policies after verifying everything.  Unfortunately, the policy holder Arun Kumar Dey died on 23/10/2007 at Midnapore College and Hospital and the cause of death was Astrocytomic Malena.  Thereafter, the complainant made claim to the Ops  for payment of the amount to her as per the policy being the nominee of the policy holder but the Ops denied the claim of the complainant on the ground that the claims have repudiated. So, the complainant moved this Forum. The defence of the Ops in

Contd………….P/2

 

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both the two cases were same.  They contended, inter alia, that at the time of filling up the proposal form and purchase of the policies, the husband of the complainant Arun Kumar Dey suppressed many material facts and furnished false information in Column No.11 (a), b, c, d, e, & i of the said form.  The Ops further submitted that the two policies of Arun Kumar Dey lapsed since February 2005 and as per personal statement of good health and the information furnished by him, the policies were revived on 24/1/2006 but in the statements made in the proposal form for revival, some false and mala fide statements were made.  The Ops further contended that Arun Kumar Dey had been suffering from some serious ailments since before the filling up the original proposal form as well as form for revival of policies.  Arun Kumar Dey was on medical leave and so many occasions.  He was hospitalized and operated upon medically more than once.  But he suppressed all those facts which prompted the Ops to repudiate the claim of the complainant.

                 It is now for our consideration as to whether the complainant is entitled to get the relief as claimed.

                                                            Decisions with reasons

                 Admitted fact is that the two policies as mentioned above were purchased by the insured Arun Kumar Dey on 28/2/2004.  The Ops contended that the policies lapsed since February 2005 and those was revived on 24/1/2006 after Arun Kumar Dey prayed for revival by filing a form to that effect.  This is admitted by the Ops. the insured Arun Kumar Dey died on 23/10/2007 after his death the complainant being the nominee of the insured made her claim before the Ops but vide letter dated 19/7/2011 addressed to the complainant the Manager (claims) of the LIC repudiated the claim on the ground that the answers given by the insured in the form signed by him on 19/01/2006 were false and he did not disclose the actual facts in the form.  The relevant portion of that letter is quoted below:-

Question: a) Have you ever suffered from or are you                              Ans:    No.

suffering from any illness/disease requiring treatment

for more than a week or more?

Question:  b)  Did you ever have have any operation,                             Ans:      No.

accident or injury?

Question: c) Are you present in sound help?                                           Ans:     good.

                   The case of the Ops that the insured Arun Kumar Dey was suffering from various ailments and was admitted in different hospitals.  The Ops in their W/O has mentioned the period on which the insured Arun Kumar Dey was on medical leave. The periods are

i)   07.02.2003   to   28.02.2003

ii)   01.03.2003   to   05.03.2003

Contd………….P/3

 

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iii)   15.03.2004   to   24.03.2004

iv)  13.09.2004   to   17.09.2004

v)  22.09.2001   to   08.10.2004

vi)   10.01.2005   to   14.01.2005

vii)   14.02.2005   to   22.02.2005

                    In support of such contention the OPs have furnished a Xerox Copy of the letter issued by the Kendriya Vidyalaya Sangathan Regional Office, kolkata where the insured Arun Kumar Dey was a Yoga teacher.  The statement of leave as issued by the Kendriya Vidyalaya  support the above contention of the Ops.

                    Now we must not be oblivious of the fact that on some occasions a person takes leave on medical ground and in all cases, the ground may not be genuine.  Simply for remaining on leave and in some cases on medical leave, and not mentioning that in the proposal form, in our considered view, cannot constitute suppression of material fact.

                    In this case it appears from the documents filed on record by the parties that the insured was admitted to Apollo Gleneagles Hospital, Kolkata  on 19/3/2004 for FESS ( R) operation.  The certificate given by Dr. K. Haldar on 24/3/2004 shows as such.  It also appears from that certificate that the insured Arun Kumar Dey was a case of Ponto-Medullary Astrocytoma-SRT with (B) Nasal Polyposis & Sinusitis.  We have already found that the admitted position is that the policies purchased by Arun lapsed from February 2005 and those were revived on 24/1/2006  after the insured filled up a form for proposal for revival of lapsed policies and filed the same with the LIC on 19/1/2006.  In the said proposal form also the insured Arun gave his answers as No to all the questions relating to suffering from any illness, disease, under-going operation etc. From the Xerox copy of the certificate dated 8/10/2004 given by Dr. K.C. Pal we find that Arun was under his treatment since 22/9/2004 to 8/10/2004 and Arun was suffering from Medullary Astrocytoma (operated) with Nasal Polyposis & sinusitis (operated).  So, from the certificate of Dr. K.C. Pal  we find that at least on two times Arun had to go under operation before submission of proposal form of the policies.

                   We have already referred to the certificate of D. K. Haldar who performed FESS (R) operation. During hearing the complainant was asked to produce document relating to the operation of Medullary Astrocytoma.  The complainant has filed a Xerox Copy of discharge certificate  issued by the Apollo Speciality Hospital Chennai on 12/4/2003. From this document we find that the same was issued by Dr.K Sekhar, Radiation Oncologist of Apollo Cancer Hospital, Chennai.  The history as given in the certificate shows Arun was a known case of right Ponto-Medullary low grade Astrocytoma and has been referred for Stereotactic Rediotherapy.  In this regard we would like to mention the meaning of “Astrocytoma” as can be found in

Contd………….P/4

 

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Dorlands Illastrated Medical dictionary 28^th Edition  Astrocytoma  Tumer composed of a Strocytes

               It is the most common type of primary brain Tumer and also found through out the Central Nervous System.  One classification groups Astrocytomas according to their Histologic appearance and distinguishes Pollocytic, Protoplasmic, Germitocytic&fibrillary types.  Another classification groups  them in order of increasing Malignancy Group (i), Group (ii), Group (iii) and Group (iv) Astrocytomas.

                  The discharge summary as written by Dr. K Shekar, Rediation Oncologist indicates that the patient Arun Kumar Dey was taken for Stereotactic irradiation using relocatable G.T.C frame in Linear Accelerator and a total dose of 60 GY was delivered in 30 fractions to the using multiple non-co-planar arcs.  The patient completed the treatment on 12/4/2003 and tolerated the treatment well.

                   Therefore, it is clear from the above facts that the insured Arun Kumar Dey had consulted the radiation oncologolist at the Apollo Cancer Hospital Chennai and Stereotactic  Radiotherapy was given to the Tumer he had in the central nervous system.  Certainly, the tumer was malignant in nature for which Radiotherapy was used at the Cancer Hospital.  This was done well before not only the filling up the form for revival of policies but also filling up the form for proposal of LIC on 24/2/2004. In neither of the proposal forms we find any sort of operation or treatment insured Arun had to undergo.  This was, no doubt, suppression of material facts.  During hearing, the Ld. Lawyer for the complainant maintained that the policies were purchased by the insured on 28/2/2004 and those having been lapsed in 2005, were revived on 24/1/2006 whereas the repudiation of the policy was made by the LIC on 19/7/11 which the LIC cannot do after lapse of two years of the policy of LIC was effected.  In this regard the Ld. Lawyer for the complainant referred to the provision of Section 45 of the LIC Act 1956.  He also referred to the decisions in the case of Shri Santosh Kanwar Vs. LIC of India (2009 (3) CPR 138 (NC), Smt. Nirmala Soni Vs. Life Bima Nigam Satna and others (2003 (2) CPR 425 and LIC of India and another Vs. Kamala Devi (2009 (3) CPR 150 (NC) and submitted that in view of those decisions of the Hon’ble National Commission and the State Commission of Madhya Pradesh, the respondents cannot repudiate the claim of the complainant.

                We have carefully gone through the decisions provision of Section 45 of the Act as well as the decisions as relied upon b y the Ld. Lawyer for the complainant.

                  For better appreciation of the matter the Section 45 of the Act is reproduced below section - 45  Policy not to be called in question on the ground of misstatement after two years

No policy of LIC effected before the commencement of this act shall after the expiry of two years from the date of commencement of this act and no policy of LIC effected after the coming

Contd………….P/5

 

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into force of this act shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed  facts which it was material to disclose that it was fraudulently made by the   policy holder and the policy holder knew at the time of making do that the  statement was false or that it suppressed facts which it was material to disclose

                   So, from this provision we find that after two years of making the policy under the act, this policy cannot be called in question unless some conditions are satisfied.  Three conditions for application of second part of Section 45 of the Insurance Act are

1. the statement must be on a material matter or must suppress facts which it was material to disclose
2. the suppression must be fraudulently made by the policy-holders and
3. the policy-holders must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.

After going through the three decisions upon which the Ld lawyer for the complainant relied we find that neither of the three conditions mentioned above, were fulfilled in those cases. So, the Hon’ble National Commission and the state Commission of Madhya Pradesh passed the award of compensation.  In the case at our hands we have already found that the insured Arun before filing of the original proposal form suppressed the fact of having Astrocytoma and the radiotherapy at the Apollo Cancer Hospital.

             After some days of filling up the proposal form the insured Arun Kumar Dey underwent an operation and that was also suppressed in the proposal form for revival of the policy.  The insured appears to have made false statement by not mentioning about his operation, treatment and the ailment.  This was suppression of material fact in order to get benefit by the nominee in case of any eventuality relating to the ailment of Arun Kumar Dey.  We clearly find that all the three conditions of the second part of the Section 5 of the Insurance Act as referred to the above were fulfilled and as such there was nothing wrong on the part of the Ops to repudiating the claim.  In this regard we would like to refer to the decisions reported in 2012 (CPR)32 and 2012 (3)CPR60.  In the first decision the Hon’ble Chattisgarh State Commission held that when false answer were given in respect of material information then insured can be said to be guilty breach of mutual confidence.  In the second case the Hon’ble Tamil Nadu State Commission held that Insurance Policy should be construed as void in case of suppression of material facts as well as pre-existing disease.

Contd………….P/6

 

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                In the present cases we have already found that in the proposal forms Arun Kumar Dey gave false answer relating to his ailment, treatment and operation which were material facts to disclose and he also suppressed his pre-existing disease.

                 Moreover, we find from the documents on record, that Arun was admitted in the Midnapore Medical College & Hospital on 21/10/07 when he died on 23/10/07. We find this in prescribed form for Medical Attendants Certificate which was filled up and singed by the Medical Superintendent Cum Vice Principal, Midnapore Medical College & Hospital, Paschim Medinipur on 29/11/07. In that form, the cause of death of Arun has been mentioned as (a) Primary cause-Malena- Secondary cause- Astrocytoma with Malena. Therefore, the Primary cause has a direct relation with the secondary cause, i.e. Malena. We would like to reiterate that Arun had Astrocytoma since before the date filling up of original form. The secondary cause of death being Astrocytoma with Malena, it was Astrocytoma which ultimately caused Malena for which Arun died. So non-disclosure of Astrocytomaand its treatment at the Apollo Cancer Hospital at Chenai, was suppression of material fact which Arun knew to be false and such suppression was made fraudulently.     

                Therefore, we are of the considered view that the insured Arun Kumar Dey made false statement, suppressed material fact and the suppression was made by him fraudulently.  Accordingly, it cannot be said that repudiation of the claim of the complainant by the Ops was unjust or unfair and hence the complainant is not entitled to get any relief.

                Hence it is,

                                            Ordered,

                                                            that both the cases bearing Complainant Case No.91 of 2011 and Complainant Case No. 92 of 2011 are dismissed on contest but considering the circumstances of the case, without any cost.  

Dic. & Corrected by me.

                                                                                             

              

         President                            Member                        Member                    President

                                                                                                                       District Forum

                                                                                                                  Paschim Medinipur.