APPEARED AT THE TIME OF ARGUMENTS

(in both matters)

PRONOUNCED ON:  07^th February  2020

ORDER

PER DR. S. M. KANTIKAR, PRESIDING MEMBER

1.     Both the Revision Petitions are from the orders dated 11.03.2016 and 21.04.2016 in RP 1768 of 2017 and RP 1769 of 2017 respectively of the State Consumer Disputes Redressal Forum, Jaipur whereby the appeal of the complainant was dismissed.

2.     Facts of each case are enumerated as below:

R.P. No. 1768 of 2017

The brief facts are that the father of the complainant (hereinafter referred as ‘insured’) had taken a policy, bearing policy number 503245877 from the OP – Life Insurance Corporation (hereinafter referred as OP- LIC) , wherein the complainant was the nominee. The sum assured was Rs. 10,00,000/- and the premium payable was Rs. 5,800/- every six months. The agent of the OP had taken the signature of the life assured on a printed form and the information was noted separately.  The insured deposited three premiums totaling to Rs. 17,430/- till 14.03.2012. The insured died due to heart failure on 07.09.2012. The grievance of the complainant was that the claim got repudiated on 30.03.2013 on the ground that the insured did not disclose about the pre- existing policies at the time of taking the policy in question.

R.P. No. 1769 of 2017

The insured had taken a policy from the OP- Canara HSBC OBC Life Insurance (hereinafter referred as OP) bearing policy no. 0027834618, wherein the complainant was the nominee. A premium of Rs. 1,00,000/- was paid and the insured sum was Rs. 10,00,000/- . The insured died on 07.09.2012. Thereafter, the claim of the complainant was repudiated by the OP on the ground that the insured did not disclose about the details relating to pre- existing policies.

Being aggrieved by repudiation by both the OPs, the complainant filed a complaint in the District Forum.

3.     The complaint was resisted by the OPs by filing a reply. It was contended that the deceased insured did not get any of the CTMT (Cardiac TMT) tests, ECG, blood pressure etc. from the doctor appointed by the OP.  More important that the deceased insured also concealed about nine pre – existing policies that were taken by him from various insurance cos.

4.     The District Forum, after hearing both the parties and appraisal of evidence, dismissed the complaints with the following observations:

In RP 1768 of 2017

9. The opposite party Life Insurance Corporation has not caused any default/deficiency in service by dismissing / rejecting the insurance claim of the complaint vide its letter dated 30-03-2013, since the deceased Virendra Kumar has concealed the substantial or elementary fact by not mentioning/ showing the details of the pre- existing insurance policies, taken from the other insurance companies.

10. The submission /argument of the counsel for the complainant is that the proposal form was not filled by the complainant , it was filled by the agent , the fact cannot be considered as affecting the case adversely. The information related to the pre-existing policies, taken from the other companies can only be with the deceased, it is not possible to have information of such policies with the agent. This argument of the counsel for the complainant cannot be admissible that the details of the two policies, taken prior to the LIC had been mentioned, the details of the policies taken from the other companies were not demanded; therefore it was not filled. The agreement of the insurance depends upon the goodwill, if the deceased would had mentioned the details of the policies taken from the other companies , then the decision of the opposite party insurance company to take risk could had been affected; therefore the opposite party insurance company has not caused any default/ deficiency in service by rejecting the claim. Issue no.1 is decided against the complainant.

RELIEF

11. According to the above analysis/ discussion, as the issue no. 1 is decided against the complainant, in such condition the complainant is not entitle for any relief. The complaint is not fit to be allowed.

ORDER

12. Resultantly the complaint is disallowed against the non- applicants. The parties will bear their expenses themselves.

(paras 9,10,11 and 12 of the District Forum’s Order)

        In RP 1769 of 2017

10.  From the facts of the present case, it is evident that the insurance policy , mentioned in para no. 3 of the para- wise reply of the opposite party has not been issued by one office , one agent and one development officer , but the deceased had received the separate policies from different – different insurance companies at separate and different time , whose information was only with the deceased Virendra Kumar , but he knowingly at the time of taking the present insurance  policy , he did not mention the detail of pre- existing policies. To conceal this fact absolutely cannot be admitted to be of good – faith .The insurance company has not caused any default in service by rejecting the claim filed by the nominee vide its letter dated 12-02-2013 , since the deceased has concealed the material  fact by not showing the details of his pre- existing polices.

11. On the basis of the aforesaid analysis, the complainant is not entitled for any relief. The complaint is not fit to be allowed.

ORDER

12.  Resultantly the complaint is disallowed against the non- applicant. The parties will bear their litigation expense themselves.

(paras 10,11 and 12 of the District Forum’s Order)

5.  Being aggrieved by the orders of the District Forum, the complainant appealed to the State Commission. The State Commission dismissed the appeals. It observed as below:

In RP 1768 of 2017

Further more one relevant fact is also on the record that the father of the appellant has taken policies for the sume assured for more than Rs. 56 lakhs whereas he was simply petrol pump Manager and within two years of the impugned policy he has died and nothing was payable on the maturity of the policy which also cast shadow on the genuineness of the claim.

The court below has rightly considered the rival contentions and dismissed the claim.  There is no infirmity in the impugned order and the appeal is liable to be rejected.

(extract from the order of the State Commission)

In RP 1769 of 2017

During the course of arguments the counsel for the appellant has fairly conceded that on the same facts Appeal No. 912/2015 Smt. Pooja Vs. Life Insurance Corporation is decided on 11.3.2016. Hence, in view of the fact the case is squarely covered by the judgement passed in Appeal no. 912/2015 and on same terms this appeal is also liable to be dismissed.

(extract from the State Commission’s Order)

6.     Being aggrieved by the orders of the State Commission, the complainant filed the present Revision Petitions.

7.     Learned arguing counsel was not present even on the date of hearing. We have perused the material on record.

8.     We note that there was delay of more than 300 days in filing both the Revision Petitions. The application for condonation of delay states that the counsel for the complainant had received the file when it was summer vacations, so the drafting of the revision petitions got delayed. In our view, the petitioner failed to explain the ‘sufficient ground’ to condone such a huge delay. The legal maxim “Vigilantibus Et Non Dormientibus Jura Subveniunt” squarely applicable in the instant case. The law assists only those who are vigilant and not those who sleep over their rights. It shows complainant’s inactiveness and lack of interest on her part.

9.     Secondly the deceased - life assured did not disclose about the pre-existing policies to the OPs. On perusal of record it shows the insured had purchased nine policies for total sum assured Rs. 56,47,181/- during 2010 & 2011. He concealed the details and not disclosed to the OPs while filling of the proposal form of the instant policy. The deceased obtained said policy by suppression and misrepresentation of facts.

10.   Recently on 24th April, 2019 a bench comprising of  Hon’ble Justice Dhananjaya Y. Chandrachud and Justice Hemant Gupta, the Hon’ble Supreme Court   in the case of Reliance Life Insurance Co. Ltd. & Anr  v. Rekhaben Nareshbhai Rathod[1] in C.A. No. -4261/2019, decided on 24.04.2019 has held that Failure to Disclose Existing Insurance Policy is considered to be a material fact and the same would be the sufficient ground for repudiation of the claim by the Insurance Company. The court also referred to the following passage from Mac Gillivray on Insurance Law:

In more recent cases it has been held that all-important element in such a declaration is the phrase which makes the declaration the 'basis of contract'. These words alone show that the proposer is warranting the truth of his statements, so that in the event of a breach this warranty, the insurer can repudiate the liability on the policy irrespective of issues of materiality.

The Hon’ble Apex Court also observed that the mere submission of the policyholder that he was unaware of the contents of the proposal form and the same was filled up by the third party such as agent and that the signature of the assured on the proposal form were taken without explaining the details cannot be accepted. The Court relied on the decision of the division bench of Mysore High Court in VK Srinivasa Setty versus M/s. Premier Life and General Insurance Co. Ltd.

11.   On the basis of the foregoing discussion, it is amply clear that in the instant case, the complainant has not approached the consumer fora with clean hands in both the cases. It was an ulterior motive of the complainant to get the claim to which she does not deserve.   

12.   Both the revision petitions are dismissed as barred by limitation and having no merit.

Per Hon’ble Mr. Dinesh Singh, Member

13.   These Revision Petitions, No. 1768 of 2017 and No. 1769 of 2017, have been filed with delay of 354 days and 317 days, respectively. Sufficient cause to explain the delay is not forthcoming in the respective applications for condonation of delay. However, in the interest of justice, to settle the matter on merit, the delay in filing the two Revision Petitions is condoned.

14.   Perusal of the material on record shows that the insured, the father of the Complainant, had taken multiple insurance policies from different insurance companies. This material fact was concealed while taking the subject insurance policies.

15.   Both the Fora below, the District Forum and the State Commission, have dismissed the Complaint, with concurrent findings.

16.   An insurance contract has to be in utmost good faith, by both sides. And in a life insurance contract, existence of earlier life insurance policies is a material question, necessarily required to be answered truthfully.

17.   In the instant matter, the insured suppressed the pre-existence of multiple life insurance policies, from different insurance companies, when suppression of even one pre-existing life insurance policy was sufficient to arrive at a conclusive finding of willful and intentional suppression of material facts. And there is no mitigating factor. The insured was an educated person. It is reasonable and appropriate to say that he knew what he was signing, he knew the significance of the information being supplied by him.

18.   No jurisdictional error, or legal principle ignored, or miscarriage of justice, is visible, as may call for interference in exercise of the revisional jurisdiction of this Commission under Section 21(b) of the Act 1986.

The Revision Petitions are dismissed.