SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 35 of Consumer Protection Act 2019 seeking to get an order directing opposite parties to pay an amount of Rs.15,00,000/- being the sum assured and benefits under the policy with interest together with Rs.5,00,000/- towards compensation and also cost of the proceedings of this case.
Brief facts of the case of the complainant are that the complainant is a doctor by profession. The complainant’s wife Mrs.Beena K Nair who was a doctor by profession. The first OP through third OP and 4th OP have issued a life Insurance Policy to the wife of complainant, Mrs. Beena K Nair on 27th March 2019 with policy Number 007831570 under ABSLI Guarantee Milestone Plan. The sum assured is Rs.15,00,000/- and the policy term is 14 years. The premium payment term is 6 years with annual premium of Rs.1,04,500/-. Policy holder remitted the annual premium and policy was issued after complying all the statutory requirements and procedure. The policy holder/insured was found dead in her residential apartment at 101-A, National Presita, Palarivattom, south Jantha Road, Ernakulam. Postmortem was conducted on the body of the deceased policy holder. Complainant lodged death claim 25/02/2021 with the OP. OPs have repudiated and rejected the claim made by the complainant and it was communicated by 2nd OP vide letter dated 5th April 2021. In the letter the 2nd party has stated that the policy was issued on 27/03/2019 and the claim documents and evidence available with the company have established that the cause of death of the Life Assured on 7th May 2019 was suicide and since the Life Assured committed suicide within one year of the policy Issue Date, complainant’s claim is not eligible for death benefits. The reason stated for rejection of claim and repudiation is contrary to facts and wrong. The OPs are bound to honour the claim of complainant and the rejection of claim is in violation of the terms of Insurance policy and therefore illegal. Hence this complaint.
After receiving notice, OPs filed their written version contending that the complaint is not maintainable either in law or on facts. That the Deceased Life Assured retained the policy documents which was duly delivered and never approached the OPs for any rectification. It is admitted that the complainant’s wife Mrs. Bina K Nair (DLA) opted for ABSLI Guaranteed Milestone T14 P06 and as per mandate received through application form, policy bearing number 007831570 was issued with policy pay term of 6 years and policy term of 14 years. That the DLA paid initial premium of Rs.1,04,000/- only. That on 22/12/2020 company received Death Claim Intimation of DLA who expired on 07/03/2019.
That as the case being early claim, ie. falling within 3 years of policy issuance, the company conducted an international investigation which revealed that the DLA committed suicide by consuming poison. That Palarivattom Police had in the final report submitted before the Sub Divisional Magistrate Court, Fort Kochi in Crime NO.886/19 found that the deceased Beena Nair was using Sedative drugs for depression and died due to poisoning. It is evident from the post Mortem Report and the final report that the insured had died due to injection of poison by herself. Thus it is evident from the Post Mortem Report and the final report that the DLA who was a doctor by profession had injected poison and committed suicide. The Police had also found that there is no third party involvement which makes the death a conclusive case of suicide. The opinion as to the cause of death states that the postmortem findings were consistent with death due to poisoning. That under the “Suicide clause”’ the claim was admitted and communication was sent vide Letter dated 31/03/2021. That according to the terms and conditions of the policy, the OPs had by transaction reference number 104059190672 refunded premium amount of Rs.1,00,000/- in the account of the complainant HDFC Bank being the amount payable. Further submitted that the Life Assured had while submitting the proposal form for issuance of the policy suppressed the material fact that she was taking regular treatment for depression. The complainant himself has in his letter addressed to the OPs stated that the DLA was in the habit of taking sleeping pills for many years and that she was also taking regular treatment for depression. It is submitted that had the DLA declared the correct details in the application form regarding her condition of depression and the treatment taken by her, the OPs would not have issued the policy at all. Hence the policy itself had become void. That OPs have acted strictly according to the terms and conditions of the policy, hence no liability can be saddled on company.
At the evidence stage, complainant has field his chief affidavit and documents. He has been examined as Pw1 and marked the documents as Ext.A1 to Ext.A5. Pw1 was subjected to cross-examination by OPs and marked Ext.B1 to B5. Ext. A1 is Insurance policy, A2 is claim settlement request, A3 is claim repudiation letter, A4 is Post mortem report and A5 is order issued by RDO Fort Kochi. The documents marked from the side of OPs are Ext.B1to B5.
After that the learned counsel of both parties made oral argument and also filed written argument notes.
Undisputed facts of the present case are that Mrs. Beena K Nair – Life assured had obtained a ABSLI Guarantee Milestone plan policy’ from the 4th OP for a period of 14 years from 29/03/2019. The sum assured is 15,00,000/- premium payment term is 6 years with annual premium of Rs.1,04,500/-. Life assured died on 07/05/2019. FIR No.886/2019 was registered by Palarivattom police. Complainant lodged death claim on 25/02/2021 with the OP. OP repudiated the claim through Ext.A3. In which OP has stated the death claim under policy of late Beena K Nair (LA) was repudiated because “the claim documents and evidence available with company have established that the cause of death of the life assured was suicide. Since the life assured has committed suicide within one year of the policy issued date, the claim is not eligible for death benefits”. With the repudiation letter OP had refund installment premium Rs.1,00,000/- of the life assured to the accounts of the complainant. OP repudiated the claim on the ground that complainant’s claim falls under “Exclusion clause”.
The learned counsel of the OP submits that in the post mortem report of Life Assured (Ext.A4) shows that there is a single pin point puncture mark on the front aspect of left elbow. It is stated that opinion as to cause of death as “post mortem findings were consistent with death due to poisoning”. OP’s learned counsel submitted that as per the conditions of Ext.B4 policy, “suicide : If the Life assured under this policy dies by committing suicide, whether medically sane or instant, within one year from the inception of the policy or revival date, we shall pay to the nominee the premiums paid to date (excluding applicable taxes) or surrender value if higher”. In Accordance with the conditions of policy, the OP had paid an amount of Rs.1,00,000/- to the account of the complainant at HDFC Bank being the amount payable.
Here the 1st question to be decided whether the LA Mrs. Beena K Nair’s death was a suicidal death or not?
It is an admitted fact that the incident (death of Life Assured) was happened within one year of inception of the policy. Further in the post mortem report, the Doctor who conducted Autopsy on the body of LA reported about because of death as “postmortem findings were consistent with death due to poisoning”.
It is revealed that the District policy surgeon arrive such an opinion on the basis of the findings “a single pin point puncture wound mark present at the front aspect of left elbow (suggestive of needle puncture mark) Also (1) 12 ml. syringe with needle and cap in site 2) Midazolam 5mg/5m – one empty vial 3) Potassium chloride – one vial (unissued) were recovered from the site. It is also found that Viscera have been collected and sent for chemical analysis.
OPs came to a conclusion and rejected the death claim of the complainant from the findings at post mortem report.
On the other hand the learned counsel of complainant argued that findings of District Police Surgeon Dr. Biju James is not correct. Because from the drug recovered from the scene of occurrence, Midazolan is not poisonous, only potassium chloride is poisonous. But the victim Life Assured did not use the potassium chloride. The learned counsel argued that the Life Assured is a doctor, so if she had intention to committee suicide,, she definitely injected potassium chloride. It is an admitted fact by the complainant (husband of the Life Assured) in Ext.A2 that ‘Beena has go to the habit of taking sleeping pills (mostly tablets and sometimes injectables) for many years. So she was also taking regular treatment for depression’. It is further argued that since she had habit of taking sedative injectables, on the particular day also she used midazolam injection for sleeping. Complainant submitted that the police enquiry was closed with the finding of “death due to accidental over dosage drug.” Ext. A2 is the death claim of the Life Assured sent by complainant to OP. Further submitted that to find out poison in blood of the deceased, chemical analysis report of viscera is the crucial document. Here while pendency of this complaint complainant has taken steps to sub divisional Magistrate Kochi to submit chemical analysis report of viscera collected from the body of Life Assured. After getting summons, Senior Superintendent of Re venue Divisional office, Fort Cochin had given a report dated 13/07/2023 that the chemical Examiner had sent a reply that the analysis of the deceased Beena K Nair has not been conducted till date.
From the facts and circumstances of the case, it is established that death of Life Assured Dr. Beena K Nair was happened, by injecting sedative injectables namely Midazoam, it is submitted that the FIR registered by the police was stopped the case with a finding of “death due to accidental over dosage of drugs”. Hence we cannot come to a conclusion the Life Assured Beena K Nair had committed suicide and there was poison present in the blood of the deceased, in the absence of chemical analysis report. Thus the complainant’s claim does not fall under ‘Exclusion Clause”.
OP had taken another contention that the policy issued to the insured had a free look period of 15 days, during which period, the insured could have returned the policy if she was not satisfied with the conditions of the policy. Further` submitted that the Life Assured had while submitting proposal form for insurance of the policy suppressed the material facts that she was taking regular treatment for depression. The Life Assured had answered in the negative to the specific question on medical history in the application form as to “Have you ever sought advice or suffered from any of the following Dizzinas/fainting spells, epilepsy, Paralysis, Stroke, Mental/Psychiatric disorder”. The learned counsel of OP further submitted that in Ext.A2, letter complainant himself admitted that the Life Assured was taking regular treatment for depression and was in the habit of taking sleeping tablets and injectables for many years. According to OP, policy was obtained by Life Assured by suppression of material facts and hence the policy itself had become void.
It has been submitted by the learned counsel of complainant that in the repudiation of claim, OP had taken a contention that the Life Assured committed suicide within one year of date of insurance of policy. Further submitted that since the OPs adopted such a reason for denial of claim, subsequently, according to the legal Principal of ‘estopper’ the OP are stopped from taking a distant and different ground deviating from their earlier stand for denial suicide as the cause of death. In this respect a decision reported in 2019 ICO 3040 para II of Hon’ble Supreme Court of India produced herewith it is held that ‘it is a settled position that the insurance company cannot travel beyond the grounds mentioned in the letter of repudiation’. The denial of the benefits on a ground factually and legally wrong amounts to deficiency of service on the part of the opposite parties.
Complainant’s husband admitted that she was taking regular treatment for depression for many years. It is presumed that before issuing the insurance policy having sum assured Rs.15,00,000/-, proper medical check-up is done and even facts mentioned in the proposal form are duly verified. However until and unless the insured is fully explained all the terms and conditions of the policy, she is not expected to know that the disease mentioned in the condition if any suffered by the insured can be a disqualification of insurance claim. According to the complainant she is not suffering from any of the disease or disorder as mentioned in the policy condition column id “Dizzinas/fainting spells, epilepsy, Paralysis, stoke, mental/Psychiatric disorder or any other neurological disorder.”
We can realize that people are taking insurance policy with a hope that in case of accidental death happen his or her family shall get some immediate financial assistance but in most of the cases the insured is cheated when his/her claim is rejected with just a reason that he /she concealed some material facts at the time of signing proposal form for the claim was not properly submitted before the Insurance company. The agent of the company is required to explain all the details and conditions of the Insurance policy sought to the customer. Once accepting the premium and having entered into an agreement without verifying the facts and without Medical checkup, the Insurance cannot escape for the liability merely by saying that the contract was made by misrepresentation and concealment. The policy entails the liability on both sides.
Having considered all the facts and circumstances of the present case with regard to absence of concrete evidence of suicidal death of the Life assured Dr. Beena K Nair (chemical analysis report of viscera) and also concealment of material facts in the proposal form, we are of the view that complainant is entitled to get the policy benefit of the diseased Insured. The police referred the case as accidental death. The policy benefits equally goes to the LRS of the Life assured.
Accordingly, the complaint is allowed in part. Opposite parties are directed to pay a sum of Rs.14,00,000/- (Insured amount- amount already paid Rs.1,00,000/-) to the Legal heirs of the Life Assured deceased Dr. Beena K Nair towards Insurance claim with Rs.50,000/- towards mental agony. Opposite parties shall comply the order within one month from the date of receipt of the certified copy of this order. Failing which the awarded amount will carry interest @ 9% per annum from the date of order till realization. Complainant can execute the order as per Provision in Consumer Protection Act 2019.
Exts.
A1-Insurance policy
A2-Claim settlement request dated 25/02/2021
A3-Claim repudiation letter
A4-Postmortem report
A5-Order issued by RDO Fort Kochi
B1-Copy of proposal form
B2- Copy of Premium paid certificate
B3-Copy of Death claim intimation
B4-Copy of claim admission letter dated 31/03/2021
B5-Copy of policy document
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forwarded by order/
Assistant Registrar
