Date of filing: 01.03.2017 Date of Disposal: 22/11/2017
Complainant: Smt. Sadhana Saha, W/o. Late Kishor Saha, Village: Peari Nagar, Post Office: Dhatrigram, Police Station: Kalna, Burdwan, PIN – 713 405.
Opposite Party: 1. Branch Manager, L.I.C.I., Kalna Branch. Madhuban, Kalna – 713 409.
2. Divisional Manager, L.I.C.I., Burdwan Divisional Office, Gopalnagar, Ghordaur Chati, Burdwan – 713 103.
Present : Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member : Smt. Nivedita Ghosh.
Appeared for the Complainant: Ld. Advocate, Chandrani Bhattacharya
Appeared for the Opposite Party No. 1 & 2: Saurabh Dey.
J U D G E M E N T
This petition of complaint is filed u/S. 12 of the C.P. Act by Smt. Sadhana Saha alleging deficiency in providing service on the part of the Ops (1) Branch Manager, LICI, Kalna Branch, Kalna- 713 409, (2) Divisional Manager. LICI, Burdwan Divisional Office, Gopalnagar, Burdwan – 713 103.
Case of the complainant in brief is that one Kishor Saha (Since deceased), S/o. Late Bijay Saha, husband of the complainant Smt. Sadhana Saha had purchased one Life Insurance Policy being No. 448914185 for assured sum of Rs. 1,90,000=00 under Table No. 814/12/12 with commencing date as 11.4.2014 and maturity date as 11.4.2026 putting his wife Smt. Sadhana Saha as nominee of the policy. Subsequently the policy holder died on 14.01.2016 at Kalna Sub Divisional Hospital owing to cardio respiratory failure. Subsequently, all relevant documents including the original policy bond were submitted to the OP No.1 Branch Manager, Kalna by the agent Mr. Preskar Ali Sk. having code No. 03295/471. The complainant has mentioned that no copy of policy bond had been retained by the complainant. It is further stated that the OP NO. 2 by his letter dated 13.6.2016 asked the nominee of the said policy to submit all previous treatment papers for speedy settlement of the claim in reply of which the complainant by her letter dated 20.1.2016 intimated the OP No. 2 that she had not been aware about the said policy and subsequent to the death of her husband submitted all the papers which were available and requested to settle the claim accordingly. In a letter being No. 152 dated 16.12.2016, the Bradhaman District Consumer Protection and Welfare Centre, Burdwan requested the OP-2 to settle the claim in accordance with the paper submitted by the complainants. The said Welfare Centre again by a letter being No. 101, dated 02.01.2017 requested the OP No. 2 for early response. The complainant by a letter dated 27.01.2017 to the OP-2 clearly explained that her husband visited Dr. R. Bhattacharjee for his ailment but Dr. Bhattacharjee did not provide any treatment since the problem was related to eye and advised to contact an Ophthalmic Consultant and accordingly the husband (since deceased) visited Dr. Samir Ranjan Dutta, Senior Ophthalmic Consultant. However, by a letter dated 19.01.2017 the OP-2 informed the complainant that the claim has been repudiated and the money received by the OP were forfeited on the plea of furnishing false answer on the health ground in the proposal form. It is mentioned by the complainant that her husband was an illiterate person but somehow managed to put his signature on the proposal form and the said form was filled up by the agent of the OP. The complainant has further stated that prior to obtaining of the policy. The insured was medically examined by the paneled medical attendant of LICI Dr. Tapan Kumar Das having Code No. 73/471 and on the basis of his health examination report. The proposal was accepted as well as the policy was insured by the OP-2. Therefore, denying payment of death claim made by the complainant on such a flimsy ground amounts to deficiency in service and also unfair acts on the part of the Ops. Hence, the complainant has filed the instant case paying for direction upon the Ops to pay Rs. 1,90,000=00 towards payment of sum assured + Rs. 7,220=00 towards bonus + Rs. 10,000=00 towards compensation + Rs. 3,000=00 towards cost of litigation i.e. Rs. 2,10,220=00 in total.
The complainant has annexed photocopies of status report of policy No. 448914185, certificate of death of Kishore Saha, letter dated 10.6.2016 from the OP to the complainant letter dated 20.11.2016 from the complainant to the OP, letter dated 16.12.2016 & 02.01.2017 from Bradhaman District Consumer Protection & Welfare Centre to the OP, prescription dated 13.6.2014 for Kishore Saha issued by Dr. Samir Ranjan Dutta, letter dated 27.01.2017 from the complainant to the OP-2 and letter dated 19.01.2017 from OP to complainant.
The Ops have contested the case by filing written version denying and disputing all material allegations as labeled against them in petition of complaint paragraph wise stating, inter alia, the complainant is not a consumer, the complainant suffers from non-joinder and mis-joinder of parties, the complaint is barred by limitation and the complainant has no right as to death claim, stating further that one Kishore Saha, since deceased, S/o. Late Bijay Saha, husband of the complainant purchased a policy being Policy No. 448914185 from Kalna Branch Office of LICI with date of commencement on 11.04.2014 under table – term 814-12 having basic sum assured of Rs. 1,90,000=00 with quarterly premium of Rs. 4,596=00 making his wife Smt. Sadhana Saha as nominee. It is stated in the written version that after death of the life assured the complainant submitted claim related documents with the answering Ops and on scrutiny of the documents the OP observed that the insured died at Kalna SD Hospital on 14.01.2016 and the cause of death was cardio respiratory failure due to A.M.I. Diabetic Mellitus type-2 of Hypertension. The Ops have specifically stated that being fully aware about the questionnaire in the proposal form and also being aware of the previous ailments he suffered from deliberately answered “No” in question Nos. 11(a), (d), (c) and also stated his health status as ‘good’ under question No. II (i). The Ops also mentioned that it was evident from the prescription issued by Dr. M. Das dated 19.7.2014 that the insured had the history of diabetic Mellitus for 12 years and further, the OPD patient card of Kalna SD Hospital dated 24.01.2015 shows that the insured took insulin regularly and established care of Diabetic Mellitus, therefore, according to the Ops, the willful suppression of existing disease led repudiation of the death claim by the Ops. Accordingly the Ops have prayed for dismissal of complaint with cost.
The Ops have annexed the photocopy of policy documents, prescription dated 13.6.2014 issued by Dr. S.R. Dutta, report on examination of blood dated 16.6.2014, prescription dated 19.7.2014 issued by Dr. M. Das, OPD patient card issued by Kalna SD Hospital dated 24.01.2015, discharge report of Kalna SD Hospital dated 09.3.2015 prescription dated 22.3.2015, 26.7.2015, 02.01.2016 issued by Dr. Miraz Mondal, discharge certificate dated 06.01.2016 issued by Gandhi Memorial Hospital, Kalyani, Certificate of Hospital treatment dated 11.03.2016 by Kalna SD Hospital, letters dated 10.6.2016, 23.12.2016 from OP to the complainants, letter dated 02.01.2017 from Bardhaman District Consumer Protection & Welfare Centre to OP, letter dated 19.01.2017 from OP to complainant.
In course of hearing ld. Advocate for the complainant has submitted that the complainant is very much entitled to get the death claim of the insured furnished mis-statement in the proposal form is not sustainable at all as per provision of Section 45 of the Insurance Act-1938. Ld. Advocate for the complainant relied upon the decision of (1) Hon’ble NCDRC reported in IV (2012) CPJ 13 (NC) (Sahara India Life Insurance Company & AUZ Vs. Hansaben Dipak Kumar Pandya), (2) Life Insurance Corporation of India and Anr Vs. Gurbaksh Singh @ Gurubaksh Singh 2009 (1) CLT 221 – (Court Finding about Company Activity), (3) Lalita N. Shetty Vs. Star health & Allied Insurance Co. along with 2008 CTJ 347 & 2008 CTJ 699, (4) GI/286/RSA/09 Ms. Sonia Dhamja Vs. Royal Sundaram Alliance Insurance Co. ltd. (5) Satish Chanda Madan Vs. Bajaj Allianz General Insurance 2016 SCC online NCDRC 28.
Ld. Advocate for the Ops has submitted that the insured furnished false statement suppressing the existing diseases suffered by him in the proposal form of the policy so the insurer is not liable to settle the death claim and as such repudiated the same.
Ld. Advocate for the Ops relied upon the decision of Hon’ble NCDRC reported in (i) I (2015) CPJ 670 (NC) [LICI Vs Mamta]; (ii) I (2015) CPJ 121 (NC) [Ramarati Vs LICI.
Points for determination:-
- Whether the complainant is a consumer under the Ops.
- Whether the case is maintainable in its present form?
- Whether the Ops have deficiency in providing service;
- Whether the complainant is entitled to this relief as prayed for.
Decision with reasons:-
All points are taken up together for comprehensive discussion and decision. Husband of the complainants (since deceased) availed service in respect of insurance provided by the Ops by making payments of consideration in the form of premium. The complainant being nominee in respect of the insurance policy obtained by her husband and being beneficiary of the insured has became consumer under the Ops as per provision of the Sec. 2(1) (d) of the C.P. Act.
Summing up the amount of the service plus the amount of relief claimed it comes well within the pecuniary jurisdiction of this Forum. The cause of action also has occurred within the territorial jurisdiction of this Forum. The complainant’s case has been filed within the time limit as per provision of Section 24A of the C.P. Act. Hence, this case is maintainable in its present form.
Admittedly the husband of the complainant (since deceased) had his life assured by the OP insurer vide policy No. 448914185 having date of commencement on 11.4.2014 and date of maturity 11.4.2026. Evidently the husband of the complainant died on 16.02.2016. After death of the husband of the complainant his wife Sadhana Saha who had been made nominee of the said policy filed death claim to the Ops through her agent Preskar Ali Mondal by submitting policy document in original and available copies of all other relevant documents. However having had several correspondences with the complainant with the OP Manager repudiated the said claim vide letter dated 24.01.2017 on the ground of concealment of fact in course of furnishing statement in the proposal form in clause No. 11(a) – 11 (I). The Ops stated specifically that the insured had been suffering from Diabetes Mellitus since 12 years which was evident from the prescriptions issued by the treating doctors and inspite of having been aware of such ailment he replied “no” to the question in proposal form at clause No. 11 (e) which ran as “Are you suffering from or have you ever suffered from Diabetes, Tuberculosis, High Blood Pressure, Low Blood Pressure, Cancer, Epilepsy, Hernia, Hydrocele, Leprosy or any other disease?”
The complainant by filing the instant complaint has challenged the repudiation of the said claim stating that the insured had died due to cardio respiratory failure and as such there is no reason to repudiate the claim.
On perusal of documents on record it appears that the prescription dated 13.6.2014 issued by Dr. Samir Ranjan Dutta shows that the insured had been suffering from DM since twelve years. It is evident from the copy of policy document that the insured denied to have been suffered from diseases including diabetes in the proposal form it implies concealment of material fact.
In course of argument ld. Advocate for the complainant mentioned the provision of Section 45 of the Insurance Act, 1938 and submitted that policy cannot be called in question on ground of mis-statement after two years and therefore, the Ops cannot raise any issue relating to mis-statement in proposal form.
Section 45 of the Insurance Act, 1938 however runs as policy not to be called in question, on ground of mis-statement after two years- No policy of life insurance affected before commencement of this Act shall, after expiry of two years from the date of commencement of this same Act and no policy of insurance effected after the coming into force of this Act shall, after expiry of two years from the date which it was effected be called in question of any insurance on the ground that a statement made in the proposal for insurance of any report of a medical officer, or referee, or friend of the insured or 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 and that it was fraudulently made] by the policy holder and that the statement was false [or that it suppressed facts which it was material to disclose] [Provided that nothing in this Section shall present the insurer from calling for proof of age at anytime if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal].
Therefore, it is not applicable to the policy in dispute in which material facts were suppressed.
Now to arrive at decision regarding whether the insurance policy may be repudiated for concealment of fact we are to rely on the decision of the Hon’ble NCDRC in LICI Vs. Mamta wherein Their Lordships pleased to hold the repudiation of claim justified on the ground of concealment of material fact regarding previous ailment by life assured. Relying upon the said decision we are inclined to hold that the repudiation of the claim the Ops are justified.
The decision relied by the complainants are not applicable to the instant case since none of those has same context to the instant case.
In the result, the Consumer Complaint does not succeed.
Hence,
O r d e r e d
that the Consumer Complaint being No. 38/2017 is dismissed on contest without any order as to cost.
Let plain copies of this order be supplied to the parties free of charge as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Nivedita Ghosh) DCDRF, Burdwan
Member
DCDRF, Burdwan
(Nivedita Ghosh)
Member DCDRF, Burdwan
