Haryana

Karnal

696/2009

Upbhokta Sanrakshan Parishad - Complainant(s)

Versus

Canara HSBC Oriental Bank Of Commerce Life Insurance Company - Opp.Party(s)

19 Jan 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                          Complaint No.696 of 2009

                                                          Date of instt.: 19.10.2009

                                                          Date of decision: 19.01.2016.

 

Upbhokta Sanrakshan Parishad Gharaunda Parkhand Maaharana Partap Chowk, Main Bazar, Gharaunda on behalf of Bimla Rani wd/o Shyam Lal c/o Hira Nand Hari Om, shop No.20, New grain Market, Gharaunda

.                                                                   ……..Complainant    

                                      Vs.

1.Canara  HSBC Oriental Bank of Commerce, Life Insurance Co. Ltd. Centrum Plaza, 5thFloor, Tower B, Golf course road, Gurgaon.

 

2.Operation Manager, Canara HSBC Oriental Bank of Commerce.

                                                                           ……… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……….President.                

                   Sh.Anil Sharma…….Member.

 

Present:-        Sh.M.K.Aggarwal representative of the complainant.

                   Sh.Vineet Rathore and Sh. Naveen Sharma Advocates for the Opposite Parties.

ORDER:                 

 

                        This complaint has been filed  by Upbhokta  Sanrakshan Parishad Gharaunda Parkhand Maharana Partap Chowk, Main Bazar, Gharaunda ( herein after referred to as the USP)  on behalf of  Complainant Bimla  Rani wd/o Shyam Lal ,  u/s 12 of the Consumer Protection Act 1986, ( herein after referred to as the Act), on the averments that it is a registered Consumer Association registered with the Registrar of firms and societies, Government of Haryana bearing registration No.929 and it can maintain a complaint on behalf of  any consumer u/s 12(b) of the  Act.  It has further been pleaded that the  husband of the complainant Sh.Shyam Lal (Deceased Life Assured)  had current account No. 05495011000135 in Oriental bank of Commerce Gharaunda.  The  Manager of Oriental bank of Commerce Gharaunda approached Shyam Lal and persuaded him to get himself insured. Proposal form was filled by the Opposite Party no.2 and signatures of Sham Lal were obtained on certain places of the proposal form and thereafter a cheque of Rs.25000/-  dated 15.10.2008 was obtained from him. The policy was issued by the Opposite Party no.1 on 15.12.2008. As per the policy condition, in case of death of life assured, within term of policy,  his nominee Bimla was  entitled to the sum insured i.e. Rs.ten lac. Sham Lal expired on 25.12.2008 due to sudden heart attack. Claim papers were filled and  the some were sent to the Opposite Party no.1 through the Opposite Party no.2. However, the Opposite party no.1  vide letter dated 23.3.2009 repudiated the claim  on the ground that declaration made by the life assured on page no.5 of the proposal form was found  untrue , therefore, the contract of insurance was absolutely null and void. The  Life assured was a patient of chronic  obstructive Pulmonary Disease (COPD) and  he remained admitted in Bhalla Nursing Home Gharaunda from 18.11.2007 to19.11.2007. In fact, the life assured remained admitted in the hospital for one day only and he  never complained from the  said disease and was enjoying good health. COPD is not disease. Moreover, the life assured died due to heart attack,  which had no bearing with COPD. In this way, repudiation of the claim of the complainant by the Opposite Party no.1 was illegal and contrary to the principle of  natural justice.

 

2.                 Notice of the complaint was given to the Opposite Parties, who appeared and filed written statement disputing the claim of the complainant. Objections have been raised that the complainant has concealed the material facts from this Forum; that the complaint does not disclose any cause of action; that the complaint is not maintainable as there was no deficiency in services or unfair trade practice on the part of the Opposite parties and that the complaint is false and vexacious.

 

                   On merits, it has been admitted that the life assured was insured with the Opposite Party no.1 and he had paid the first premium  towards the policy on 15.10.2008. It has been denied that the Opposite Party no.2 had not asked any question provided in the proposal form from the life assured and obtained his signatures on the proposal form. It has been submitted that life  assured had signed the proposal form after reading and understanding the contents of the same. The declaration at page no.5 of the proposal form was also signed by the life assured  stating that answers and statements provided by him in the proposal form were true, accurate and  complete in very particular  and he had not withheld any information.   He further stated in the declaration that the plan details with regard to the policy were explained to him and he had opted the  same after understanding. It has further been averred that life assured had not provided the true facts about his health condition in the proposal form at the time of taking policy and stated all the answers about his health condition in negative, whereas he was under duty to disclose all the material facts within his knowledge. In fact, he was a patient of COPD prior to making the proposal form for the insurance policy and that fact was within his knowledge, but he intentionally  did not disclose in the proposal form. Had that fact been disclosed, the Opposite Party no.1 would  have declined the proposal made by him. Thus, the contract of insurance was void. It has been asserted that claim of the complainant was rightly repudiated by the Opposite Party no.1.

 

3.                 In evidence of the complainant, affidavits of complainant, Sube Singh and Virender Kumar, Ex.CW1/A, Ex.CW2/A and Ex.CW3/A  respectively and documents Ex.C1 to Ex.C7 have been tendered.

 

4.                 On the other hand, in evidence of the Opposite parties, affidavit of Anup Singh Ex.OP1/A and documents Ex.OP1/B  and Ex.OP1 to Ex.OP4 have been tendered.

 

5.                 We have appraised the evidence on record,  the material circumstances of the case and the arguments advanced by the representative of the complainant and the learned  Counsel for the Opposite Parties.

 

6.                 It is admitted fact that life assured remained admitted in Bhalla Nursing Home, Gharaunda from 18.11.2007 to 19.11.2007.He had deposited the first premium on 15.10.2008. The policy was issued on 15.12.2008.He died on 25..12.2008.The claim lodged by the  complainant being nominee of the life assured was repudiated by the Opposite party no.1 on the ground that the life assured had not provided true answers to the questions relating to his health and medical condition in the proposal form and thereby critical information which was material  was withheld from the insurance company. The copy of the letter of repudiation is Ex.C5. 

                      The representative of the complainant vehemently argued that proposal form was filled up by the officers of the insurance company and he obtained the signatures of the life assured at the foot of the proposal form and no question regarding his health was asked to him.  The Opposite parties have not filed any affidavit of Raj Kumar, who allegedly explained the contents of the proposal form in Hindi to the life assured, therefore, it cannot be said that life assured had concealed material facts regarding his admission in the Nursing home and gave false declaration in the proposal form. It has further been argued that there could be some other cause of sudden heart attack . No affidavit of Arvind M.Dass, who gave the opinion that COPD runs the risk of sudden cardiac death has been filed. Therefore, on the basis of his opinion it cannot be concluded that life assured suffered heart attack due to problem of COPD. It has lastly been argued that life assured had not intentionally concealed any material fact and the claim of the complainant was wrongly repudiated by the Opposite Party no.1. In support of his contention he also placed reliance upon M/s ICICI Prudential Life Insurance Company Ltd. Versus Mrs.Veena Sharma and another 2014(4) CPR 711 (NC) wherein the death  claim was repudiated on the ground of suppression of pre existing disease, but the Opposite Party  totally failed to prove the case with cogent and credible evidence that insured had intentionally suppressed the  fact that he was suffering from  diabetes Mellitus prior to submission of the proposal form.  One of the letters of repudiation sought to   rely  upon hospitalization of the deceased, but no evidence was led. Only discharge card of hospitalization   was produced which was  not  proved and the  evidence of treating doctor was not led. Under those circumstances, the Hon’ble National Commission held that repudiation of the claim was  neither legal nor justified.

 

7.                 Copy of the proposal form is Ex.C4/Ex.OP1. The questions 5-A to  5-H relate to the medical details of the proposer. However, he gave answers in negative to all the questions mentioned in the proposal form regarding his health. Thus, as per the answers given by the life assured to the questions of the proposal form, he was not suffering from any disease and was never hospitalized for general check up, observation, treatment or surgery. No doubt, the Opposite parties have not filed the affidavit of Raj Kumar, who had read over and explained the contents of the proposal form to the life assured in Hindi, but on that ground it cannot be accepted that proposal form was signed by the life assured without  understanding the contents thereof. There is  presumption that when a document is signed ,  the person who signed the same had gone through the contents  and  put his signatures after admitting the  contents thereof to be correct. The Opposite parties produced the copy of the  record of treatment of Bhalla Nursing Home  Gharaunda  as is Ex.O2.   As per the record of the hospital, life assured was suffering from acute  exacerbation of COPD. The complainant has also not disputed the fact that the life assured remained admitted in the Bhalla Nursing Home from 18.11.2007 to 19.11.2007.  Dr. Arvind M.Dass gave medical opinion on the claim case, the copy of which is Ex.OP3. He had given details of description of COPD, causes predisposing factors, signs and symptoms, diagnosis,  treatment, natural course of disease and prognosis and complications. His opinion was based upon scientific discussion that sudden death due to cardiac arrhythmias’  is well known as a part of COPD and due to Hypoxia and increased CO2 retention.  As per scientific discussion, complication of COPD could be heart failure, pulmonary hypertension, cor pulmonale, polycythemia, septicemia secondary to recurrent respiratory infections.  The complainant has not produced any scientific observation or any medical authority that such complications can  not occur due to COPD. Therefore, there is no reason to discard the opinion given by  Dr.Arvind M.Dass. 

 

8.                 The term material fact has not been defined in the Insurance Act, therefore, it has been understood and explained  by the court in general terms to mean as any fact which   would influence the judgment of a prudent insurer in fixing  the premium  or determining whether he would like to accept the risk. Any fact which goes to the root of the contract of Insurance and has a bearing on the  risk involved would be material.   In this context reference may be made to the judgment of Hon’ble Supreme Court in  case Satwant Kaur Sandhu Versus New India Insurance Co.Ltd. 2009(10) SCR 560.   

 

                        In Life Insurance Corporation of India Vs.Bimla Devi  revision petition No.3806 of 2009 decided by the Hon’ble National Commission on 12.8.2015,  similar principle of law was laid down.

 

  9.                      Thus, the material question which arises  for consideration whether not disclosing about the hospitalization and suffering from COPD by the life assured in the proposal form submitted for taking  insurance policy amounted to  suppression of material fact. He had remained admitted in the Bhalla Nursing Home from 18.11.2007 to 19.11.2007 and got treatment for COPD.  Such disease may result into many complications including heart failure. Thus, he had knowledge about the disease he was suffering from at the time of submitting the proposal form. Had he disclosed about his hospitalization , in the proposal form, the insurance company might not have accepted his proposal or  charged higher premium for insurance. Thus, the life assured concealed material facts and , misrepresented the  Opposite party no.1 by not disclosing about his hospitalization  and disease, with which he was suffering before taking the policy. Therefore, contract of insurance was void   and repudiation of the claim by the Opposite Party no.1  cannot be termed as illegal or unjustified in any manner.

 

10.               In view of the aforesaid discussion, we do not find any merit in the present complaint, therefore, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:19.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.

 

 

 

 

Present:-        Sh.M.K.Aggarwal representative of the complainant.

                   Sh.Vineet Rathore and Sh. Naveen Sharma Advocates for the Opposite Parties.

 

                   Arguments heard. Vide our separate order of the even date, the present complaint has been dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:19.01.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.