The case of the complainant as follow:-
That Baharati Majhi w/o Badal Chandra Majhi, mother of the complainant opened a Life Insurance Policy with Birla Sun Life Insurance Co. Ltd. being policy no 005580935 issued on 16.05.2012 from the Branch Office of Purulia.
The complainant Monochar Majhi, son of Bharati Majhi is the nominee as well as legal heir of the said policy holder. The mode of policy was Semiannual and the policy holder paid a sum of Rs.14,965/- as premium for the first time.
That at the time of opening of the policy necessary verification and investigation was made by the investigator on behalf of the Birla Sun Life Insurance Co. Ltd and on satisfaction the policy was issued in favour of Bharati Majhi, the mother of the complainant.
That the policy holder namely Bharati Majhi, mother of the complainant died on 01.07.2012 in Cardio Respiratory Failure with Ischemic Heart Disease as per death certificate issued by Dr S.K.Pati, Chest Medicine Specialist Ex M.O., Raghunathpur S D Hospital. Further death certificate was also issued by Hensla Gram Panchayet.
That after the death of the said policy holder, the nominee namely Monochar Majhi approached before the Branch Office of Birla Sun Life Insurance Co. Ltd at Purulia for the claim of the insurance coverage of her mother but the said insurance company by the letter dated 09.07.2013 refused to pay the same on the plea that the policy holder Bharati Majhi was suffering from decease prior to opening of the policy which was suppressed. Further during investigation it was told that no medical fit certificate was required in this case as the policy holder was at that right moment below forty years and their personal level verification and investigation was enough and sufficient to issue policy to the deceased. As the O.Ps refused to pay the death benefit upon the plea of pre-existing disease, the complainant has no other alternative but to move before this Forum and filed the instant case in order to get relief.
The O.Ps are contesting the case by filing written version contending interalia that the instant case is false, malicious, incorrect and malafide.
The O.P submitted that the claim made by the complainant was repudiated by the O.P for reason of mis-representation and suppression of material facts by the policy holder at the time of making the proposal.
The O.P again submitted that during the course of the investigation. It was established that the Deceased Life Insured (DLI) was suffering from cancer and had under gone treatment in Meherbai Tata Memorial Hospital prior to the issuance of the said policy and the same was not disclosed by the Deceased Life Insured (DLI) at the time of signing of the proposal form though the specific questions in this regard being asked in that form.
That O.P alleges that the complainant has not approached this Hon’ble Forum with clean hands and suppressed the material facts before this Hon’ble Forum
The O.P prays for the dismissal of the case with costs.
Points for determination:-
- Is the complainant is a consumer?
- Is the case maintainable at all?
- Is there deficiency on the part of the Ops?
- Is the complainant entitled to get relief’s as prayed for?
Decision with reasons:-
Point 1 & 2
Though by contract of insurance the person whose life is being insured is a consumer as well as the beneficiary other than the person who hires such services also comes under the preview of the consumer u/s 2 (l) (d) (ii) of the Consumer Protection Act. So we are of the opinion that the case is maintainable also.
The complainant’s mother namely Bharati Majhi opened a Life Insurance Policy with Birla Sun Life Insurance Co. Ltd being policy no 005584614 issued on 19.05.2012 from the Branch Office at Purulia and the complainant was the nominee and legal heir. In case of death of a consumer his legal heir or representative who or which makes complaint is also a consumer u/s 2(1)(b)(v) of the C.P.Act 1986.
Point 3 & 4
These points are taken up together for the sake of convenience of discussion as they are interlinked.
The policy holder Bharati Majhi died on 01.07.2012 in Cardio Respiratory Failure with Ischemic Heart Disease and death certificate has been issued by Dr S.K.Pati Chest Medicine Specialist Ex M.O Raghunathpur S D Hospital in this regard.
The Branch Office of Birla Sun Life Insurance refused the complainant to pay the insured coverage sum though he is a nominee and legal heir on the plea that the life assured was suffering from Cancer. In support of such an allegation the O.P. filed documents collected by the investigator regarding the treatment of the policy holder at Meherbai Tata Memorial Hospital, Jamshedpur, Jharkhand from 18/04/2012 to 07/05/2012. Advocate on behalf of the O.P. draws our attention to the proposal form where in column no 11 and 14 there are questionnaires regarding the insurability declarations for the life to be insured & medical history, where the policy holder answered in negative.
Though death of the insured occurred within one and the half months of taking the policy is not even remotely attracted. That repudiation of the claim was on a consideration of the aforesaid record of Meherbai Tata Memorial Hospital and answer to column 11 & 14 of the proposal form amounted to mis-representation and suppression of material facts regarding health made by the policy holder.
We have heard the arguments made by the ld counsel for both parties and have carefully examined the documents and contents of the evidence on record led by the parties.
It appears that the proposal form was duly filled up by the Insurance Advisor Bhaktinath Kumar who seems to be known to the life insured. The contents of the letter of Meherbai Tata Memorial Hospital dt 04.07.2013 is as follows- “…… Late Mrs Bharati Majhi attended MTMH on 18.04.2012 with history of pain abdomen, weakness and loss of appetite since last one month and she had undergone City Abdomen / Pelvis on 26.03.2012 which was suggestive of ‘CHOLILITHIASIS’ with a large soft tissue mass in a fundus of GB (Gallbladder). The mass is infiltrating into the adjacent segment IV & V of liver. Differently thickened wall of rest of GB likely to GB Carcinoma. USG FNAC done on 03.05.2012 suggestive of adenocarcinoma of GB. Patient Genl. Condition was poor. Party was prognosticated. Patient was treated with symptomatic treatment under Pallative Care Patient was discharged on 07.05.2012”. Now the pertinent question is how the insured company came to know after filling the death claim that the insured / assured was suffering from the diseases stated above and got treatment in the said Meherbai Tata Memorial Hospital on the stated date is not known. Further the Insurance advisor Bhaktinath Kumar had gone on 15.05.2012 after discharge on 07.05.2012 to the insured/ assured and the Application Form was duly filled up accordingly. It appears from the contents of the letter that the condition of the insured / assured was poor. The Insurance Advisor saw her physically after a week of discharge but it is strange that he could not trace the poor health condition of the life insured while he made Bharati Majhi sign the filled up Common Application Form of the Insured Company. Further prior to opening of the policy necessary verification and investigation was made on behalf of the said Insurance Company and it was told that as the age of the policy holder was below 40 she need not produce any documents or medical fit certificate against the fitness of the policy holder. Verification and investigation by the insurance advisor / investigator was enough and sufficient in this case, it was told. As we know Investigation means to observe or study by close examination and systematic enquiry. So in this case we wonder why the Insurance advisor / investigator could not find any weakness while he was investigating and filling up the Application Form on behalf of the insured /assured whose General health condition was poor. Even advisor/ investigator did not find it prudent to call for medical check up & fitness certificate. So we are of the opinion that the insurance advisor had the knowledge of her weakness, if any, which he suppressed for instant gains. Utmost good faith must be observed by contracting parties and good faith forbids either party from non disclosure of facts which parties know. In such a case the OPs were not right in issuing the policy to the life assured Bharati Majhi. The letter dt 04.07.2013 of Meherbai Tata Memorial Hospital appears to be photocopied but not the original one. But the OPs have not filed the affidavit of any of the doctors to the effect that they have treated the patient / insured suggestive of ‘CHOLILITHIASIS’ prior to filling of the proposal form. In the absence of such evidence we are not in a position to accept the said letter as correct and complete. Therefore no reliance could be placed on the said photocopied letter of the said hospital.
On perusal of the death certificate issued by Dr. S.K.Pati dt. 01.07.2012 (Annex. 4) we find no where a single uttering of the disease of Cancer instead it was certified that Bharati Majhi died due to Cardio Respiratory Failure with Ischemic Heart Disease.
In view of the above facts and findings we are of the opinion that the O.Ps have the deficiency in service in respect of non payment of claim to the complainant. If somebody does not perform his part of the contract, it amounts to deficiency in service. This also amounts to ‘unfair trade practice’ for adopting unfair method and deceptive service. Considering the facts and circumstances of the case we are of opinion that the complainant does get decree in part. Complainant is entitled to get Rs. 4,49,500/- of the insurance policy coverage along with interest @ 10% p.a. from the date of filing of the present complaint till the date of realization and Rs. 2500/- as litigation cost and Rs. 2,500/- towards compensation for harassment and mental agony and that will meet the ends of justice.
Hence,
O R D E R E D
That the consumer complainant no 29/13 be and the same is allowed in part on contest against O.P. s.
That the complainant do get Rs. 4,49,500/- and Rs. 2500/- as litigation cost and Rs. 2,500/- as compensation. That the O.P.s are directed to pay the awarded amount to the complainant within one month from this date, failing which the complainant shall be at liberty to proceed in accordance with the provision of law.
Let a copy of this judgement be supplied to the parties free of charge
