West Bengal

Birbhum

CC/53/2017

Nayan Chand Roy, S/O Lt Kushdhaj Roy - Complainant(s)

Versus

Branch Manager, LICI Ltd - Opp.Party(s)

Sanjit Kr Acharya

18 Aug 2023

ORDER

Shri Sudip Majumder.. President in Charge.

            The complainant/petitioner files this case U/S 12 of Consumer Protection Act, 1986. The fact of the case in brief is that the complainant/petitioner Nayan Chand Roy is the husband and beneficiary of the life assured, Sukla Roy.

            It is case of the complainant that Sukla Roy, life assured purchased two policies being No. 448798821, sum assured Rs. 1,00,000/ and policy being No. 489993397, sum assured Rs. 2,00,000/ commenced on 26/03/2014 and on 24/09/2014 respectively. The life assured nominated her husband, Nayan Chand Roy i.e. the complainant as nominee of those policies.

            It is the further case of the complainant that unfortunately the life assured expired on 18/05/2015 due to sudden cardiac arrest at Peerless Hospitex Hospital and Research Center Ltd. Kolkata.

            That the complainant being nominee of those policies gave the death intimation of the life assured to the OP.

            Thereafter complainant being nominee of those policies submitted claim form duly filled in along with all the relevant documents before the OP LICI. That unfortunately the OP did not consider the claim of the complainant and they repudiated the claim through their letter dated 10/12/2015 arbitrally and illegally.

 

Thereafter, complainant again sent his written representation before the Higher authority of the OP/LICI and the claim was also repudiated by them.

            It is necessary to mention that the OP/LICI sent a cheque in favour of the complainant being No. 163775 amounting of Rs. 11,580/ dated 29/03/2016 on account of refunding premium of policy No. 489993397 without considering the death claim of life insured. Complainant refused to encash the cheque and kept the same.

            Hence, after finding no other alternative the complainant is compelled to file this complaint before this Forum/Commission for proper relief and prays for:

1. To pass an order directing the OPs to pay Rs. 3,00,000/ as death benefit of two insurance polices being No. 448798821 and 489993397 plus other benefits if any.
2. To pass an order directing the OPs to pay interest @ 18% on Rs. 3,00,000/ since the date of claim preferred.
3. To pass an order directing the OP to pay Rs. 10,000/ as litigation cost and other relief/s.

The OP members have contested the case by filing written version denying all material allegations of

the complainant and prayed for dismissal of the case.

            OP/LICI repudiated the claim and mentioned in their W/N/A as.... “It is established beyond doubt that the Deceased Life Assured was suffering from several illness since 2013 which is prior to the Date of Commencement of the Policies in the year 2014…….Hence, it is clear that the Deceased Life Assured Sukla Roy took the Polices by suppressing her previous ailments of Nephrolithiasis, Hypertension and Dyslipidemia for which she had consulted medical men and had taken treatment form Apollo Gleneagles Hospitals, Kolkata. The said illness and treatments prior to date of commencement of the Policies were intentionally suppressed by the Deceased Life Assured Sukla Roy in her Proposal for assurance to defraud the OP LIC of India. She also did not disclose her previous Policy No. 448798821 in Q. No. 9 of the Proposal Form under Policy No. 489993397. As a result, the OP could not access her total insurance Coverage at the time of acceptance of the Policy bearing No. 489993397. The contract of Insurance is based on utmost good faith and Life Assured was under an obligation to disclose each and every aspect of her health at the time of taking the Policies.”

            Ultimately the OP members prayed for dismissal of the case.

Both the parties submitted written notes on argument (W/N/A). Some documents have also been filed by the complainant’s side and compared with original documents. Thereafter, respective Ld. Advocates for both sides made oral arguments in support of their case.

            Heard Ld. advocates for both sides.

            Considered.

            Perused all the documents.

 

                  

 

             

Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Ops?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

Decision with reasons

Point No. 1:

            In this case, the complainant is the beneficiary as well as nominee of the policies from OP members being policy No. 448798821 and 489993397. Thus the complainant is a consumer under the OP/LICI and the OP/LICI is the service provider. Hence, the complainant is a consumer as per Sec. 2(1)d(ii) of the Consumer Protection Act, 1986.

Point No. 2:

            Pecuniary jurisdiction of this Forum/Commission as per Sec. 11(1) of the Consumer Protection Act, 1986 is Rs. 20,00,000/. OP/LICI is situated in Birbhum District i.e. within the territorial jurisdiction of this Forum/Commission as per Sec. 11(2) of the Consumer Protection Act, 1986. So, this Forum/Commission has territorial and pecuniary jurisdiction.

In this case, the cause of action arose from 10/12/2015 and the case has been filed on 05/07/2017 and as such it can be said that the complainant has filed this case within the statutory period of the C.P. Act, 1986 and as such the instant complaint is not barred by limitation U/S 24A of the C.P. Act, 1986.

Point No. 3:

It appears from the documentary evidence as available in the case record that the complainant was admitted before Peerless Hospitex Hospital and Research Center Ltd. Kolkata-700 094 on 01/05/2015 and expire on 18/05/2015, cause of death was “Sudden Cardiac arrest in a case of severe Necrotizing Acute Pancreatitis with multiorgan failure.”

OP/LICI repudiated the claim of the complainant on the ground that it is a case of suppression of material fact. In support to prove their case, OP members cited the specific ruling as here under:

1. LIC of India Vs. Panchfula Shriram Jadhav RP No. 1785 of 2011. NCDRC.
2. Balwinder Kaur Vs. Life Insurance Corporation of India & ANR RP No. 2087 of 2015, NCDRC.

OP/LICI stated in their letter dated 04/08/2015 that “Sukla Roy expired on 18/05/2015 due to cardio respiratory failure in a case of acute Pancreatitis. She had also history of GB calculi 2 years back & treated conservatively.”

 

 

 

USG: Whole Abdomen report dated 18/05/2013 examined by Dr. Tandra Sarkar, DMRD, DNB(RDG) of Apollo Gleneagles Hospital, Kolkata shows that... “GALL BLADDER: It is optimally

distended. No calculus or sludge is seen within it. The wall is not thickened. No paricholecystic collection is noted.

PANCREAS: it is normal in size, contour and echogenicity. The duct is not dilated. No calcification or focal SOL is seen.”

From the close scrutiny on USG: Whole Abdomen report, this Commission observe that before commencing of the said LIC policy agreement the Life Assured, Sukla Roy had no acute Pancreatitis and Gall Bladder was also normal.

OP/LICI also stated in their letter dated 10/12/2015 that “She had been suffering from Nephrolithiasis, Hypertension and Dyslipidemia for which she had consulted medical men and had taken treatment from them in Apollo Gleneagles Hospital, Kolkata prior to the commencement of the policy ………The suppression has affected medical underwriting adversely and therefore the claim deserve repudiation.”

For academic discussion, it is necessary to mention that here the word ‘Nephrolithiasis’ means- kidney stones, also known as renal Calculi.

USG: Whole Abdomen report dated 18/05/2013 examined by Dr. Tandra Sarkar, DMRD, DNB(RDG) of Apollo Gleneagles Hospital, Kolkata shows that…..“KIDNEYS: Both are normal in size, position, contour and echogenicity. The corticomedullary differentiation is maintained. No hydronephrosis, calculus or mass is seen.”

Here, the word ‘Hypertension’ means- blood pressure that is higher than normal. Blood pressure changes throughout the day based on activities.

As per the prescription made by Dr. Dhiman Sen, Apollo Gleneagles Hospital, Kolkata the Blood Pressure of Sukla Roy was 130/90 to 95 in the year 2013.

Here, the word ‘Dyslipidaemia’ means- abnormally elevated cholesterol or fats (lipids) in the blood.

As such, no pathological report was found in respect of high cholesterol of the life assured Sukla Roy.

Though the cause of death of Sukla Roy, Life Assure was “Sudden Cardiac arrest in a case of severe Necrotizing Acute Pancreatitis with multiorgan failure.” It does not mean ‘Nephrolithiasis’ or ‘Hypertension’ or ‘Dyslipidaemia’

 

 

 

Ld. advocate for the complainant cited some ruling in support of his case as follows:

In Gudela Siva vs Birla Sun Life Insurance Com Ltd. And Others , NCDRC, New Delhi III (2018) CPJ 465 NC  —It was held that “…Therefore it is clear that the Help Hospital has just relied upon the alleged history of DM for 10 years and without laboratory investigations arrived at the diagnosis of Diabetic Ketoacidosis. Thus, we do not accept that the DLA was suffering DM ..Type II”.

“We do not agree with the diagnosis , because the hospital record is completely silent about the case reports which would confirm the diagnosis of DM / Diabetic Ketoacidosis . Moreover, the OPs had not chosen to examine the doctor from the Help Hospital to prove the patient was suffering from DM for 10 years.”

“ In the instant case the OPs have failed to produce any tangible evidence to prove that deceased had withheld about her long standing diabetic status and treatment. Therefore, the repudiation of claim was not justified.”

“Since the respondent had come out with the case that the deceased did not disclose correct facts relating to his illness, it was for them to prove the allegation .”

In PNB Metlife Insurance Co Ltd vs Vinita Devi, I(2019) CPJ 441 (NC) – It was held “8. We rely on the judgement of this Commission titled Sushil Kumar Jain Vs. United India Insurance Co. Ltd. I (2012) CPJ 204 (NC) which has attained finality, wherein it is observed that the doctor's prescriptions have to be substantiated by an Affidavit of the said doctor,  specially in the light of the fact that it is being disputed by the Complainant. In the instant case the Insurance Company has not produced the affidavit of the concerned doctor nor did the said doctor answer any interrogatory by way of evidence before the Fora below.  At the cost of repetition, it is reiterated that the burden to prove that the life assured was suffering from any pre-existing disease lies with the Insurance Company and the Insurance Company had not filed any documentary evidence or Affidavit of the treating doctor in support of their contention….. In the light of this observation, we are of the considered view that the aspect of nexus between  the kidney disease and heart attack is of no relevance in the instant case. ”

 

In Bajaj Allianz Life Insurance co Ltd & Others vs Kanduru Gangadhara Rao IV (2021) CPJ 244 (NC) .. It was held “4. District Forum after hearing Learned Counsel for the Parties and perusing the record held that it was duty of the Insurance Company to examine the concerned doctor who treated the Policy Holder for the alleged ailment, but no such steps were taken by the Opposite Party. It was further held that mere filing of some hospital records was not sufficient to show that the Policy holder was suffering from the ailment at the time of filing the proposal form. ”

“8  From the record it is seen that Petitioners in support of their contention, placed reliance on the treatment record, which was a mere photocopy and not certified. The Doctor who treated the Life Assured was also not examined nor was his affidavit filed by the Petitioners. Also, Petitioner failed to satisfy this Commission that there was any co-relation between death of the Life Assured and the suppression of ailment "Chronic non-specific cervicitis".”

        

 

           

From the above discussion we are to opine that, the OP members/LICI showed the report to repudiate the claim of the complainant which is baseless and vexatious one.

In spite of what may be stated to the contrary, one Lacuna on the part of the OPs gives a fatal blow to their defence. Each and every policy is opened only when the doctor of insurance company examines the proposer and gives green signal. Had there been any loophole certainly. The proposals would not have been accepted. The OPs have not brought the original agreement to this effect.

So, it is proved beyond all reasonable doubts that the aforesaid act of the OP members are amounting to deficiency in service as per Sec. 2(1) (g) of C.P. Act, 1986 as well as unfair trade practice as per Sec. 2(1) (r) of the C.P. Act, 1986.

Hence, from the above discussion it is proved that the complainant could be able to prove his case beyond all reasonable doubts.

 

 

Point No. 4:

            From the documentary evidence as available in the case record it is crystal clear that the complainant is the beneficiary as well as the nominee of the said polices.

As in this case, it is proved that there is deficiency in service on the part of the OP members.

Hence, the complainant is entitled to get relief or compensation as prayed for.

Thus, all the points are decided in favour of the complainant.

Complaint is sufficiently stamped and proved beyond all reasonable doubts.

 

• We find in Chengalrayan Cooperative Sugar Mills Vs. Oriental Insurance Co. Ltd. & Anr. (2000) 10 SCC 213 it was held that “Interest ought to have been awarded from the date on which the claim was filed before the Forum.”
• We also find in Krishna Bhagya Jala Nigam Ltd. Vs. G. Harishchandra Reddy & Anr. (2007) 2 SCC 720 it was held that “Only 9% interest be awarded on refund matter.”

           

In the instant case as per view of the Hon’ble Apex Court in several cases the interest will be given @ 9% p.a. from the date of filing of this case.

 

 

 

 

 

 

                                                                       

 

Hence, it is,

            O R D E R E D,

                                        that the instant C.F. Case No. 53/2017 be and same is allowed on contest with cost.

The OP members are jointly and severally directed to pay as insurance claim of              Rs. 3,00,000/ (Three lakh only) to the complainant/petitioner along with interest thereon @ 9% per annum calculating on and from 05/07/2017 (i.e. from the date of filing of this case) till realization.

        

The OP members are jointly and severally also directed to pay Rs. 5,000/ (Five thousand only) to the complainant/petitioner as cost of litigation.

The entire decree will be complied by the OPs within 45 (Forty five) days from this date of order, in default the complainant is at liberty to put this order to execution in accordance with law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.