JUSTICE SUDIP AHLUWALIA, MEMBER

This Revision Petition has been filed by the Petitioner/ Complainant against the Respondents/Opposite Parties challenging the impugned Order dated 30.11.2016 passed by the State Consumer Disputes Redressal Commission, West Bengal, in First Appeal No. A/1416/2014. Vide such Order, the State Commission allowed the Appeal while setting aside the Order dated 31.10.2014 passed by the District Consumer Disputes Redressal Forum, North 24 Pgs, Barasat, in Consumer Complaint Case No. 665/2013.

2.      The brief facts of the case are that the Complainant is the widow of deceased Late Prasanta Chatterjee. The deceased had purchased a Life Insurance Policy on 20.12.2011 bearing No. 429208659 during his lifetime by paying a substantial amount of premium for the sum assured at Rs.4,00,000/-. The Complainant’s husband died on 29.02.2012 due to sudden Cardio-Respiratory failure. It was submitted by the Complainant that after the death of her husband, she vide letter dated 05.09.2012 was requested to submit certain documents which she duly submitted and which were received by the office of the Opposite Party on 18.09.2012. Thereafter, vide letter dated 12.03.2012, certain questions were put to the Complainants by Opposite Party No. 2 and the Complainant duly provided her version vide letter dated 08.04.2013. Further, vide letter dated 10.04.2013, the Complainant was advised to make representations for reconsideration of claim of the Complainant to the Zonal Office and vide letter dated 19/22 April, 2013, the Complainant duly submitted her representation to Zonal Manager. Thereafter, vide letter dated 17.07.2013, she was informed that the Zonal Office Claims Review Committee had decided to uphold the repudiation decision of Divisional Office, and the Complainant was advised to appeal before the Opposite Party No. 4/Central Office Claims Review Committee, Mumbai. The Complainant filed an Appeal on 07.08.2013.  However, till the filing of the instant complaint, no decision of the Opposite Party No.4 had been communicated to the Complainant. Hence, the Complaint was filed by her  before the Ld. District Forum, being aggrieved by the acts of the Opposite Parties in not settling the claim in her favour, as the repudiation was based on no evidence or insufficient evidence. The Complainant therefore sought the following reliefs-

“A. The Complainant be paid the sum assured of Policy No. 429208659 for Rs.4,00,000/- together with interest @18% per annum from the date of

            death   of   the deceased husband of the Complainant within a particular

            period of time to be specified by the Learned forum;

            B. Cost and Costs incidental thereto;

            C. And/or to  pass such other/or  further order/ orders as to the Learned

            Forum may deem fit and proper”. 

3.      The Opposite Parties appeared before the Ld. District Forum and filed their reply to oppose the Complaint thereby denying deficiency in service on their part. The Opposite Parties denied the statements made in the Complaint except which were specifically admitted. It was contended by the Opposite Parties that the complaint was not maintainable, barred by limitation, barred by law of waiver, barred by non-disclosure of material facts and barred by non-availability of cause of action. It was submitted by the Opposite Parties that the deceased had purchased the Policy that was to run for 15 years and the premium that he paid was calculated on the supposition that the policy would run for a full term of 15 years.  However, the policy ran for merely 2 months and 9 days. It is further submitted that vide letter dated 12.03.2012 no questions were asked, instead it was explained why the death claim had been repudiated, and how the deceased had misled the Corporation by answering the questions in the Proposal Form falsely. It was further contended that the decision of repudiation was upheld by Central Office Claims Disputes Redressal Committee on 30.01.2014 and the same was conveyed to the Complainant vide letter dated 30.01.2014. It was further contended that it was not mandatory to settle the claim in favour of the Complainant if the claim was shrouded by suppression of material facts to defraud the Corporation. It was further submitted that because the Policy had run for less than three years, it qualified as an early claim and the claim was referred to the Claim Review Committee of the Opposite Parties. During the claim review process, it was found that deceased life assured was a patient of morbid obesity, somnolence, obstructive sleep apnoea for about a year, as per prescription of Dr. N. B. Debnath dated 30.07.2008. However, in the Proposal Form dated 20.12.2011, the deceased life assured had answered the question No. 9 in the negative, thus misdirecting the Opposite Parties and suppressing material facts regarding his health. It was further contended that the contract of insurance is a contract of uberrimae fidei and therefore full disclosure must be made to the insurer of every material circumstance which is known to the assured. Hence, the Opposite Parties prayed for dismissal of the Complaint with exemplary costs.               

4.      The Ld. District Forum vide order dated 31.10.2014 allowed the Complaint and observed inter alia:

“……We have perused the annexure -‘B’ which is the prescription of Dr. N. B. Debnath and also the questions which was made to the Complainant’s husband mentioned in para 15 of the written version. The diagnosis of alleged Dr. N.B. Debnath i.e., obesity, somnolence, obstructive sleep apnea do not connect the question no. iv i.e. have pertaining to liver, stomach, heart, lungs, kidney, brain or nervous system.

It is a fact that from annexure ‘B’ it appears that there was no such illness of the complainant’s husband which has been asked in para 9(iv) of the written version of the O.P. So, the question of concealment of pre-ailment disease does not arise…….”

5.      It was further observed by the District Forum that:

“……These are the obstructive sleep apnea, chest, there are generally suffered by the patient of 70 years more or less silently. O.P. failed to prove that those diseases were pre-existing in this case. It was just a hypothetical presumption of O.P.s to repudiate the claim of the complainant……” 

6.      Hence, the District Forum directed the Opposite Parties to pay sum assured of Rs.4,00,000/- along with interest @ 9% p.a. from the date of death of deceased husband of the Complainant and litigation cost of Rs.3,000/-.

7.      Aggrieved by the above order, First Appeal No. A/1416/2014 was filed by Appellants/ Opposite Parties against Respondent/ Complainant before the State Consumer Disputes Redressal Commission, West Bengal. The Ld. State Commission vide impugned Order dated 30.11.2016 allowed the Appeal while setting aside the order of District Forum and observed inter alia-

“……There is no dispute that the insured obtained a policy form the Appellant/ OP which was valid when the insured died.

Ld. Forum below relied on the affidavit-in-chief of the Respondent/ Complainant wherein it has been stated that her husband never went to Dr. N.B. Debnath for his treatment of morbid obesity, somnolence and obstructive sleep apnea.

The fact goes that in the W.V. filed by the Appellant/OP, vide paragraph 14 of the W.V. it was mentioned that as noted in the prescription of Dr. N.B. Debnath, the insured suffered from somnolence/ obstructive sleep, apnea and morbid obesity. The insured was advised in the prescription not to drive vehicles. Denial by the Complainant that the insured never went to Dr. N.B. Debnath was rather contrary to the documentary proof in the form of prescription which was never challenged or disputed to be forged or fake. The answers to the question vide item no.9 (i), 9(iv) and 9(v) and 9(ix) in the proposal form are clearly aimed at suppressing the material information which is otherwise provided in the prescription. In that position, the policy was to be rendered void as per terms of the policy, the Insurance Company cannot, therefore be held responsible for any negligence or deficiency in service in repudiating the claim of the respondent/ Complainant.

We are of the considered view that the impugned order suffers from material irregularity and legal infirmity.

The Appeal, therefore, succeeds…… ”

8.      Hence, the present Revision Petition has been filed by the Petitioner/ Complainant against the above mentioned impugned order of the Ld. State Commission on the following grounds -

1. That the Ld. State Commission failed to appreciate the fact that the Medical Report of Good Health of the deceased dated 20.11.2012 was prepared by the Medical Examiner of Insurance Company itself after completing the requisite examinations and tests prior to issuing the insurance policy;
2. That the Ld. State Commission failed appreciate that the alleged prescription issued by Dr. N.B. Debnath mentions the age of the deceased as 38 years and weight as 114 kg on 30.07.2008, but the actual date of birth of deceased is 18.08.1974 and on the prescription date, the deceased was only 33 years old. Further, the deceased though being obese had never crossed weight beyond 87 kg during his lifetime which raises doubt on reliability of the prescription;
3. That neither the District Forum nor the State Commission took cognizance on veracity of the alleged prescription of Dr. N.B. Debnath dated 30.07.2008, as the petitioner had constantly reiterated in her replies that the deceased had never approached Dr. N.B. Debnath for any purpose and also that the deceased was not suffering from any disease;
4. That the alleged prescription issued by Dr. N.B. Debnath for morbid obesity, somnolence, obstructive sleep apnoea are not in any way related to question nos.9(iv) of policy i.e., liver, stomach, heart, lungs, kidney, brain or nervous system, specially with Heart, Lungs or Kidney;
5. That the Ld. State Commission has failed to consider the source of the alleged prescription issued by Dr. N.B. Debnath and neither has Dr. N.B. Debnath been summoned in this case for evidence.  

9.      Heard the Ld. Counsel for the parties. Perused the material available on record.

10.    It has been argued by the Petitioner that the veracity of the alleged Prescription Report has not been prima facie proved before the Forum/Commission and the respondents have failed to produce any other relevant evidence/documents in support of the alleged Prescription Report. The said Report of a single page is the sole document which has been produced before the Ld. Forum by the respondents, on the basis of which the claim has been rejected. It is further argued that Dr. Chitra Ranjan Das, who has examined the deceased and prepared the Medical Attendant’s Certificate dated 23.04.2012 has replied that the illness of the deceased was of a very short period.  

11.    Since it is a case in which the original decision of the District Forum was over turned by the Ld. State Commission in Appeal, so the reasons for which each of the Fora came to its own conclusion, need to be considered and then appreciated.  The District Forum did not place much reliance on the Prescription Slip of Dr. N.B. Debnath who had examined the life insured on 30.7.2008, and, therefore, was of the view that he had not made any material suppression about the condition of his health in his Proposal Form towards purchasing the Policy in the year 2011.  The Ld. State Commission was, however, of the view that since the insured suffered from morbid obesity, somnolence and obstructive sleep apnoea, so his failure to mention about those in the Proposal Form was a suppression of material information. The Ld. State Commission has, however, ignored the fact that the Prescription relied upon by the Insurer Company in defending its repudiation of the insurance claim (Annexure-13) was issued by the concerned Physician as far back on 30.7.2008, whereas the Policy was purchased by the Insured in the month of February, 2011.  Neither of the three maladies which were noted in the prescription were specifically required to be disclosed in the Proposal Form (Annexure-A8) and there is nothing on record to show that as a consequence of such Prescription, the Insured was actually required to undergo any specific treatment for more than a week, which was the required Clause in Item 9(i) pertaining to his personal history.  Only some more tests were prescribed by the Physician and the Insured was advised not to drive any vehicle such as car/cycle etc.  The Insurance Company did not produce any more medical evidence to show that any further treatment was administered to the deceased as a consequence of such Prescription.  Moreover, the deceased had described his health condition as “Good”, which was in relation to the period immediately preceding one year before submitting his Proposal Form.  But by that time, more than 2 ½ years had already passed after the prescription in question had been issued.  On top of that the Proposal Form itself goes to show that it was counter signed by Dr. A. K. Ray Chaudhari, the Authorised Medical Officer, on behalf of the Insurance Company itself.  In such circumstances, it would not be fair to conclude that there was any wilful suppression of material information or false declaration regarding the Insured’s health, which could justify repudiation of the Insurance claim following his death.

12.    Consequently, this Commission is of the view that the Ld. State Commission erred in setting aside the well-reasoned Order of the District Forum, which had gone in favour of the Complainant/Petitioner.

13.    For the aforesaid reasons, the Revision Petition is allowed after setting aside the impugned Order passed by the State Station.

14.    Parties to bear their own costs.

15.    Pending application(s), if any, also stand disposed off.