Date of filing:- 23/07/2014

Date of Order:- 15/07/2015

DISTRICT CONSUMER DISPUTES REDRESSAL FOURM (COURT)

B A R G A R H.

Consumer Dispute Case No. 15 of 2014.

Kasturi Gartia, wife of Bikash Chandra Gartia, aged about 41(forty one) years, resident of village- Gartiatikra, Sohela, Po/Ps. Sohela, Dist. Bargarh.

..... ..... ..... Complainant.

• V e r s u s -

Branch Manager, Bajaj Allianz Life insurance Company Ltd., At. N.H.-6, Bargarh, Po/Ps/Dist. Bargarh.

..... ..... ..... Opposite Party

Counsel for the Parties:-

For the Complainant :- Sri A.K. Dash, Advocate with others Advocates.

For the Opposite Party :- Sri A.B. Sahu, Advocate with others Advocates.

-: P R E S E N T :-

Miss Rajlaxmi Pattnayak ..... ..... ..... ..... ..... ..... P r e s i d e n t.

Mrs Anjali Behera ..... ..... ..... ..... ..... ..... M e m b e r.

Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... ..... M e m b e r.

Dt.15/07/2015. -: J U D G E M E N T:-

President by Miss R. Pattnayak, President.

Alleging deficiency in service against the Opposite Party (In short OP) the present complaint is filed by the Complainant claiming the Death benefit amount of Rs.8,70,000/-(Rupees eight lakh seventy thousand)only towards Policy along with compensation of Rs.50,000/-(Rupees fifty thousand)only towards mental agony and Rs.20,000/-(Rupees twenty thousand)only towards litigation expenses in the interest of Natural Justice.

Brief facts of the case of the Complainant is that, her deceased husband Late Bikash Chandra Gartia had obtained an Insurance Policy namely Bajaj Allianz Invest Gain Gold Policy bearing No.0258006095 for a sum of Rs.4,35,000/-(Rupees four lakh thirty five thousand)only valid from Dt.23/03/2012 to Dt.23/03/2022 with minimum death benefit of Rs.8,70,000/-(Rupees eight lakh seventy thousand)only on payment of premium from the Bajaj Allianz Life Insurance Company Ltd, Bargarh (the Opposite Party in this cases) and the Complainant was the nominee in the said policy. During the subsistence of the said policy, the insured died on Dt.23/07/2012. The Complainant being the nominee lodged a claim against the said policy with the Opposite Party but the said claim was repudiated by the Opposite Party/Insurance Company on Dt.24/09/2013 on the ground that the deceased had made deliberate misstatement and suppression of material facts regarding his health while availing Insurance Policy. As according to the Complainant since there was no material suppression of facts on the part of life assured while taking the policy, such repudiation was illegal and contrary to the insurance contract, the same amount to deficiency of service as such filed this complaint claiming the minimum death benefit amount under the policy and compensation etc.

In taken of evidence the Complainant file the following documents:-

(a) Copy of Insurance Policy along with copy of proposal form.

(b) Copy of Repudiation letter.

© Copy of Death certificate of deceased Bikash Chandra Gartia.

(d) Copy of pleader Notice along with Acknowledgment receipt.

Upon notice being served the Opposite Party entered his appearance through learned counsel and filed written version rebutting the allegations made in the complaint, on the ground that since the deceased Bikash Chandra Gartia, the policy holder was having pre-existing disease of liver since last two years prior to his death and was under the treatment of the doctors of Sajukta Curative Hospital and S.C.B Medical College, Cuttack at the time of taking the proposal and as such obtained the insurance policy fraudulently after suppression of material facts about his health, therefore the policy was void-ab-initio and the claim had rightly been repudiated by the Opposite Party and there is no deficiency of service on the part of the Opposite Party in present case. The Opposite Party further submitted that in this case there was violation of most sacred principle of uberima-fide or utmost good faith on account of suppression of material health information by the insured. Such case against the Complainant needs to be dismissed as the Complainant is not entitled to get any relief as sought for. In support of his case the Opposite Party draw our attention to the following decisions of our Hon'ble Apex Courts.

1. Mithoolal Nayak vs. LIC AIR 1962 SC 814.

2. Sr. Divisional Manager and Ors vs. Raksha Goyal 2003(1) CLT 75.

3. Satwant Kaur Sandhu vs New India Assurance Company Ltd, Civil Appeal No.2776 of 2012.

4. Sriniwas Pillai Vs Agent LIC of India and Anr.

5. P.Sarojam Vs LIC of India AIR 1986 Kerala 201.

6. Life Insurance Corporation of India vs. G.M. Channabasamma 1991 (1) SCC 357.

7. Sr. Divisional Manager LIC vs Gangama and Anr. III(2002)CPJ 56.

8. State of Punjab and Anr.V. Smt. Asha Rani, III (2003) CPJ 172 (NC).

9. LIC of India and Anr. V Balbir Kaur I (2009) CPJ 212 (NC)

10. Life Insurance Corporation of India Vs. Smt. Piari Devi and others, II (2008) CPJ 156.

11. LIC of India v. Radhika Devi, III (2008) CPJ 226.

12. Ravneet Singh Bagga v. KLM Royal Dutch Airlines (2000) 1 SCC 66.

13. United India Insurance Co. Ltd., Vs. M.K.J Corporation, III(1996)CPJ 8 SC.

The Opposite Party had also furnished the following documents in support of his case:-

1. Xerox copy of Out door ticket of S.C.B. Medical College and Hospital, Cuttack.

2. Xerox copy of Dues record sheets of Sanjukta Curative.

3. Xerox copy of Service charges of central Red Cross Blood Bank, Cuttack.

4. Xerox copy of Report of Dr. U.C. Patra.

5. Xerox copy of Copy of proposal form for life insurance of Bikash Chandra Gartia.

We have heard the submission of learned counsel for both the Parties and have gone through the evidence on record and the pleadings of the Parties. The following are the issues which arises for consideration :-

1. Whether the Opposite Party was justified in repudiating the claim of the Complainant on the basis of suppression of material facts ?

2. Whether there is any deficiency in service on the part of the Opposite Party ? If so whether they are liable to pay the minimum death benefit amount as per the terms of the policy and compensation as prayed for ?

ISSUE NO. 1(ONE), NO.2(TWO) :-

There is no dispute regarding the policy taken by the deceased husband of the Complainant and also there is no dispute regarding the death of the policy holder caused during the valid period of the insurance policy, which is further proved from the copy of policy bond and copy of death certificate. So admitted fact need not be proved. But the only dispute is that the Opposite Party repudiated the insurance claim vide letter Dt. 23/09/2012 on the ground that the insured had not disclosed his pre-existing disease on the proposal form at the time of taking the insurance policy.

Generally before issuing a policy to a insured, the insurance company's authorized doctors medically examined a insured and if affirmed that the answer to all the questions in the proposal form are correct, then the insurance company would issued policy in favour of the policy holder. On perusal of the proposal form, we found that in the instant case also, the authorized doctor of the Opposite Party had examined the assured before he was given the insurance policy and the doctor also did not notice anything wrong with the assured. If the person is suffering from any pre-existing disease, certainly the doctor of the Opposite Party who examined the assured before taking the insurance policy would notice that the assured is suffering from any disease. Even if the proposer was suffering from any disease, the doctor of the Opposite Party who examined him before the insurance would certainly found it out. It is the duty of the doctor who examined the assured to see that whether the declaration of good health relating to column No.22(twenty two) is correct or not. So here onus to prove that policy holder was suffering from a pre-existing disease as per settled law is on the Opposite Party. On this point we rely on the decision of Hon'ble National Commission reported in (2012) CPJ 84 (NC) in the case of Tarlok Chand Khanna Vrs United India, Insurance Company Limited, where the Hon'ble Commission held that the onus to prove that the insured was suffering from a pre-existing disease is on the insurance company. Further the Prescriptions/ Medical reports of Sanjukta Curative Hospital and S.C.B. Medical College and Hospital and the Reports of Dr. U.C.Patra cited by the Opposite Party has no evidentiary value because the doctor who has given the aforesaid prescriptions/reports have not been examined by the Opposite Party nor sworn affidavit in support of the evidence. In the instant case the Opposite Party has not filed any credible documentary evidence or expert medical opinion in support of his case. On this point we rely on the decision reported in I (2011) CPJ 126 (NC) in the case of Satinder Singh Vrs National Insurance Company Ltd, where Hon'ble National Commission held that “it is a settled principle of law that recording of the history of a patient in the above stated manner does not become a substantive piece of evidence unless a very cogent and convincing evidence has been brought on record to establish that insured was suffering from a pre-existing liver disease. In the instant case mere filing of prescriptions and reports does not ipsofacto prove that the patient has already been suffering from disease relating to liver. The Opposite Party submitted that the deceased was having pre-existing disease of liver for the last two years before his death. We perused the polices bond and found that the policy was issued with the risk commencing from Dt.23/03/2012 and the life assured died on Dt.23/07/2012. The Opposite Party failed to produce the Medical records before two years to death to substantiate his allegation. A lay man how could know about the origin of a disease. So it is difficult to hold that Bikash Chandra Gartia knows about his suffering from liver disease since two years and he suppressed that fact at the time of purchase of policy. On this point we rely on the decision of our own Hon'ble State Commission, Odisha, Cuttack reported in 2013(1) OLR (CSR)-773 in the case of Senior Divisional Manager, New India Assurance Company Ltd., Bhubaneswar Vrs Naba Kishore Patra and anothers where Hon'ble Commission has held that “Even if the insured was suffering from disease, it can not be presumed that she was aware of such disease by the time of filing in the proposal from in absence of any positive evidence to that effect. The decisions of Hon'ble Supreme court In case of Satwant Kaur Sandhu Vrs New India Assurance Company Ltd, Civil Appeal No. 2776/2012 and decisions of Hon'ble High court of Madras in the case of Sriniwas Pillai Vrs Agent LIC of India and another, P.Sarojam Vrs LIC of India reported in AIR 1986 Kerala 201 filed by Opposite Party are not holds good in the instant case. In the version the Opposite Party at para- f stated that the life assured is known as Bikash chandra Gartia and also as Raju Gartia. He was hospitalized in the name of Raju Gartia. we found that Bikash Chandra Gartia and Raju Gartia are one and the same person has not proved by the opposite party by any means. All the medical reports filed by the Opposite Party relating to a person namely Raju Gartia. No where in the medical papers the name of the father of Raju Gartia has been mentioned .The document dated 20.4.2012 and dated 1.4.2012 which marked with a cross line supposed to be document not filed by the opposite party , hence consideration of the document does not arise as of evidenciary value. So the Medical Papers filed by Opposite Party in no way relates to Bikash ch. Gartia. The obituary filed by Opposite Party is a xerox one in a back side of a Medical Prescription is not a substantive piece of evidence to be relied upon. Most of all the Medical Papers are with out any seal and Signature of Medical Authority. The policy in question stands in the name of Bikash Ch. Gartia and in the proposal form it is signed as Bikash Ch. Gartia. No where either in the policy or in the proposal form the name of Raju Gartia has been mentioned. So the contention of opposite party Bikash Chandra Gartia and Raju Gartia are one and same in this regard cannot be believable in the absence of proper proof..

Further learned counsel for the Opposite Party submits that since the contract of insurance is based on the principle of utmost good faith, it is the responsibility of the policy holder to disclose all informations regarding his health and habits. On this point we rely on the decision reported in AIR 2000 SC 1014 in M/s Modern Insulators Ltd Vrs Oriental Insurance Company, where Hon'ble Court held that “it is the fundamental principle of insurance law that utmost good faith must be observed by all the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties knew. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agent to disclose all material facts in their knowledge since obligation of good faith applies to both equally. The decision filed by the Opposite Party reported in 111 (1996) CPJ 8 SC, (1996) 6 SCC 428 in the case of United India Insurance Co.Ltd Vrs M.K.J. Corporation is not squarely applicable to the instant case.

Further the Opposite Party raised the question that the policy in question was dishonestly obtained by the policy holder by way of fraud and misrepresentation and without the free consent of Opposite Party. Therefore the contract of insurance under this policy is nullity ab-initio as per the provision of Sec-17 and 18 of the Indian Contract Act, therefore the condition of valid contract as incorporated U/s-10 of the Indian Contract Act, 1872 were therefore not fulfilled under the policy in question. On this point we rely on the decision of Hon'ble Supreme Court reported in III (1996) CPJ 8 (SC) in the case of Life Insurance Corporation Vrs Smt. G.M. Channe basemma, where Hon'ble Court held that the burden of proving that the insured had made false representation and suppressed material facts is undoubtedly on the L.I.C. of India. The onus probandi in cases of fraudulent suppression of material facts heavily on the party alleging fraud namely the insurer. So the decisions filed by Opposite Party in case of Mithoolal Nayak Vrs LIC Reported in AIR 1962 SC 814, Sr. Divisional Manager LIC Vrs Gangama and another 111 (2002) CPJ 56 are not squarely applicable to the instant case. The contention of opposite party further is that the deceased life assured reportedly expired within about 6 months of date of acceptance of risk under the policy in question giving rise to an Early Death Claim which itself is a strong ground to raise reasonable doubt over the correctness of the material representations made in the proposal Form has not been clearly established by the opposite party and therefore the decisions filed by the opposite party i.e Hon'ble National Consumer disputes Redressal Commission in State of Punjab and Anr.V.Smt. Asha Rani, III (2003) CPJ 172 (NC), Hon'ble National Consumer disputes Redressal Commission in LIC of India and Anr. V Balbir Kaur I (2009) CPJ 212 (NC), by Hon'ble Punjab State Consumer Disputes Redressal Commission in Life Insurance Corporation of India Vs. Smt. Piari Devi and others, II (2008) CPJ 156 and Hon'ble Uttarkhand State Consumer Disputes Redressal Commission LIC of India v. Radhika Devi, III (2008) CPJ 226 are not hold good in the instant case. The contention of Opposite Party that, he has rightly repudiated the claim of Complainant as the deceased had suppressed the material facts regarding his health condition can not be accepted.

Admittedly, the deceased had paid premium in the said policy and as per the terms of the policy, the Opposite Party is bound to pay the minimum death benefit. Refusal to make the payment amounts to deficiency in service. The Complainant has clearly established the willful fault, Imperfection, short coming or inadequacy in the service of the Opposite Party. So the decision filed by the opposite party in the case of Ranveet Singh Bagga vs KLM Royal Dutch Airlines (2000) 1 SCC 66 has not holds good in the instant case.

It will be unfortunate, if the Opposite Party company try to repudiate genuine death claims on such technical and flimsy grounds. Most of the innocent insured will be victims and the beneficiaries will be deprived of the fruits of insurance. Therefore, we are of the considered view that the deceased, did not suppress any material fact with any fraudulent intention. It is unfortunate that on one hand the opposite party insurance company raises the voice of “Ut-most good faith” but, in contrast, the faith will be lost while not settling the genuine claims for some or other reasons. The consumers are literally under fear or delimma that, whether, after death, the beneficiaries ever certainly get any fruits from the insurance company. Since the Opposite Party without proper verification and valid ground refused the claim as such they are liable to pay the compensation for causing mental agony and harassment to the Complainant.

The Complaint case is allowed and ordered as follows:-

- O R D E R -

The Opposite Party is liable to pay the death benefit amount of Rs.8,70,00/-(Rupees eight lakh seventy thousand)only to the Complainant/nominee in respect of the policy bearing No.0258006095 with interest @ 6% (six percent) per annum from the date of repudiation i.e 24/09/2013 till the date of Order i.e. 15/07/2015, along with compensation of Rs.5,000/-( Rupees five thousand)only for causing mental agony, harassment with thirty days from the date of order failing which the total awarded amount shall carry 12% (twelve percent) interest per annum till the date of actual realization of the amount.

The case is disposed off according. Free copies be supplied to the parties.

Typed to my dictation

and corrected by me.

I agree, (Miss Rajlaxmi Pattnayak)

P r e s i d e n t.

(Sri Pradeep Kumar Dash)

M e m b e r.

I do not agree,

After appraising the plaint petition, version of the ops, documents files with the case record , final hearing by parties through their appointed counsels , facts and discussion made above in the order and finding basing on reasons mentioned in the order including the position of various decisions cited by parties I am to opine that...

Both the parties have not approached the forum with a clean hand, why because both the parties have concealed important facts from the forum may be skipped cleverly or by knowingly. First complainant did not tried to disclose the cause of the death of the insured that is Bikash Chandra Gartia which could have helped bringing in clarity and conclusion and it is not that the information could not be availed as the death has been reported by the health centres record of the area concerned rather felt ok with filing the death certificate which never tells the reason of death which is again important as allegations levelled by the op about concealing of important facts is there and knowing the reason of death is important.

The op has filed series of prescriptions and medical treatment of one Raju Gartia who happens to be son of one late Ashutosh Gartia from sohela and claims that this Raju Gartia is same person in the name of Bikash Chandra Gartia residing in Sohela ,the insured in the policy in issue, also did not tried to prove this fact convincingly through documentary evidence which keeps the question unsolved and intact. Op also not tried to prove the documents they filed as per prevailing procedure rather contended only seeking action of the forum to bring original records from the concerned medical centre. Both the Bikash Chandra Gartia and raju gartia have got same fathers name,same residential address in documents so proving whether they are the same person or different person is vital to decide this case which is not done.

The photographs in policy document are computer generated and not legible and original photograph is not filed for Bikash Chandra Gartia as well as for raju gartia which could have cleared the air considerably about whether the two names are of same person or not.

Besides this the complainant never challenged that the medical documents filed by the ops are not genuines.

Because all truth is not unfold before the forum does not mean that there is no truth behind those questions that are cropped up from the analysis of documents and case record.If above vital questions have been resolved the discussion of the order above could have been otherwise, and decision arrived without vital facts proved and skipped procedure is erroneous in my opinion.

Another point to be noted here is that illegality and fraud is alleged by the op which could have been proved is the above vital questions were answered and in that case this forum ceases juridisction to decide the matter.

Under the circumstances mentioned above .

Complaint devoids of merit and stands dismissed, No costs.

Typed to my dictation

and corrected by me.

(Mrs Anjali Behera)

Member ( woman)