APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON: 20^th March 2020

ORDER

PER DR. S. M. KANTIKAR, PRESIDING MEMBER

1.      The present Revision Petition is against the impugned Order dated 11.01.2019 of the State Consumer Disputes Redressal Commission, Punjab (hereinafter “State Commission”) in First Appeal No. 392/2018, whereby the Appeal was dismissed.

2.      Brief facts relevant for disposal of the case are that the Complainant took a policy from the OP - Ins. Co. for her son Kulwant Singh. She was the nominee in the said policy. The date of commencement of the policy was 12.08.2014. On maturity, the sum assured was Rs. 8,50,000/-, and in case of death of the insured, double the sum assured (Rs. 17 lakh) was to be paid. On 12.09.2014, Kulwant Singh, the insured, died a natural death at his residence. The insurance claim was submitted, but the OP - Ins. Co. repudiated the claim vide its letter dated 12.05.2015 on the ground of “misrepresentation of material facts” made by the insured in the proposal form, that the deceased insured actively made concealment of a pre-proposal hospitalization / treatment for vomiting of blood. Being aggrieved by the repudiation of the claim, the Complainant filed a Complaint in the District Forum, Taran Taran.

3.      The Complaint was resisted by the OP – Ins. Co. by filing Written Version. It was contended that the assured had intentionally concealed true and correct facts at the time of answering the questions in the proposal form filled on 05.08.2014. As per a medical certificate issued by one Baba Budha Ji Charitable Hospital (where the insured was earlier admitted from 13.07.2014 to 14.07.2014), the deceased insured was suffering from vomiting of blood. Therefore, there was no ‘deficiency in service’ on their part.

4.      The District Forum partly allowed the Complaint and ordered the OP - Ins. Co. to pay the death claim for the full assured amount and to also pay Rs. 10,000/- towards cost and compensation.  

 5.     Being aggrieved, the OP- Ins. Co. appealed before the State Commission. On hearing both the parties and after the appraisal of the evidence, the State Commission dismissed the Appeal with inter alia the following observations:

8. … Nothing could be made out form this certificate Ex. OP 1 to 4/9 that the fact of vomiting of blood was due to any specific disease which was within the knowledge of the life assured. Vomiting of blood could be on account of many factors which could not be supposed to be in the knowledge of life assured. This certificate has been issued on the basis of document Ex. OPs 1 to 4/7 the certificate of hospital treatment. It has only recorded blood in vomiting in this certificate. It is not recorded as to what was the specific disease which caused it. Vomiting of blood could be due to many reasons and it cannot be said that he suffered from preexisting disease, which was in his knowledge and he fraudulently and deliberately concealed it from insurer. He was not an old person and vomiting of blood cannot be presumed to be within the knowledge of life assured on account of any specific disease or reason. There is no medical record on the file either by any tertiary hospital or by that hospital to establish this fact it was on account of any specific ailment only. Consequently, repudiation of claim on this ground by OPs is unsustainable and merits to be set aside.

6.      Being aggrieved by the Order of the State Commission, the OP -   Ins. Co. filed the present Revision Petition.

7.      We have heard the learned Counsel for the OP – Ins. Co., the Petitioner herein, and perused the material on record, including inter alia the Orders of the District Forum and the State Commission.

8.      The OP - Ins. Co. repudiated the claim for non-disclosure of material facts. We note that the Ins. Co. relied solely on the symptom of blood in vomitus. It did not place any cogent evidence or any material to show that the insured was suffering from a certain specific disease and the said disease was the cause of blood in vomitus.  The burden of proof lay on the OP – Ins. Co. to prove that the insured died due to a pre-existing disease and the policy was taken after concealing the said material fact. However, in the present case, the OP – Ins. Co. miserably failed. The OP – Ins. Co. neither filed any hospital document or treatment record of the insured to prove its contention. Also there should be nexus between the cause of death with the material non-disclosure of disease. Mere averment that the insured suffered blood in vomit in the past, is not a material concealment, in the present facts of the instant case.

We would like to rely upon the decision of Hon’ble Supreme Court whereby the bench of Hon’ble Mr. Justice Madan B. Lokur and Hon’ble Mr. Justice S. A. Bobde in the case of Sulbha Prakash Motegaonkar & Ors. Vs. Life Insurance Corporation of India, Civil Appeal No. 8245 of 2015 dated 05.10.2015 held as below:

The husband of appellant No. 1 herein had taken out a Life Insurance Policy. At the time of taking the policy, he had concealed the fact that he was suffering from lumbar spondilitis with PID with sciatica for which ailment he was taking medical treatment as also he had availed leave on medical grounds.

        After the policy was given to the husband of appellant No. 1, he suffered myocardial infarction and succumbed to the ailment. When the appellants made a claim in terms of the life insurance policy, they were told that because the deceased had not disclosed his ailment of lumbar spondylitis with PID with sciatica at the time of filling up of the proposal form, therefore, the claim was repudiated.

        The repudiation of the appellants’ claim has been upheld by the National Commission and it is under these circumstances the appellants are before this Court.

        We have heard learned counsel for the parties.

        It is not the case of the Insurance Company that the ailment that the deceased was suffering from was a life threatening disease which could or did cause the death of the insured. In fact, the clear case is that the deceased died due to ischaemic heart disease and also because of myocardial infarction. The concealment of lumbar spondilitis with PID with sciatica persuaded the respondent not to grant the insurance claim.

        We are of the opinion that the National Commission was in error in denying to the appellants the insurance claim and accepting the repudiation of the claim by the respondent. The death of the insured due to ischaemic heart disease and myocardial infarction had nothing to do with his lumbar spondilitis with PID with sciatica. In our considered opinion, since the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured, the repudiation of the claim was incorrect and not justified.

        Accordingly, we set aside the order passed by the National Commission and allow the appeal. The respondent will accept the claim made by the appellants within a period of four weeks from today and make the due payment.

                                                                  (emphasis supplied upon)

9.      Let us see whether only ‘symptom’ means the person had any disease or illness.

A ‘symptom’ is a subjective evidence of disease, while a ‘sign’ is an objective evidence of disease. Therefore, a symptom is a phenomenon that is experienced by the individual affected by the disease, while a sign is a phenomenon that can be detected by someone other than the individual affected by the disease. Symptoms are subjective, meaning that other people only know about them if informed by the individual with the condition. There are three main types of symptoms – remitting, chronic and  relapsing symptoms. Some conditions show no symptoms at all. For example, a person can have high blood pressure for years without knowing, and some cancers have no symptoms until the later, more aggressive, stages. These are known as asymptomatic conditions, and even though the idea of symptoms is often linked to discomfort or abnormal function, a condition without symptoms can be deadly.

Many types of infection do not show symptoms. These are known as subclinical infections, and they can be contagious despite not causing noticeable symptoms in the person carrying the infection. On occasions, the first time a person will be aware of many asymptomatic conditions is during a visit to a doctor, concerning a different problem. (It is thus important to undergo regular health checks to identify any underlying problems that may not be obvious.)

Examples of infections that do not cause symptoms initially are HIV, HPV, Herpes, Syphilis, Hepatitis B and C.  Many cancers are asymptomatic during their early stages (prostate, thyroid etc). 

Many people tend to use ‘disease’ and ‘illness’ in the same breath, but there are very subtle distinctions between the two.

Disease refers to the affliction of a specific organ or the entire body due to a harmful microorganism such as bacteria or virus, injury, chemical imbalances in the body, exposure to toxins, and production of immature cells. The same thing goes for mental health issues.

Illness, on the other hand, is the reaction of the body to the disease. Illness is a broad term that defines the poor state of mind, body, and, to a certain extent, spirit. It is the general feeling of being sick or unwell (outside the person’s belief of good health). It represents fatigue, fever, muscle weakness, or blurred vision, as well as abnormal blood pressure and a rapid heart rate. It should be noted though that illness, or the feeling of being unwell or sick, can occur even without a disease.

Another distinction between a disease and an illness is its specificity. A disease is based on specific factors or criteria that doctors are looking for when a patient goes into the clinic or hospital to be examined. An illness, meanwhile, can refer to any disease. Also, because it is largely a feeling, it can be different among patients.

10.    At times, the person does not understand the nature of the symptoms and the disease, is ignorant about what is to be disclosed and what not, and whether it is material or not.

A judicious and apt balance has to be maintained between, on the one hand, an attempt at insurance fraud by (intentional and wilful) material concealment of pre-existing disease, which, it goes without saying, should be most strictly curtailed, and, on the other hand, to restrain insurance cos. to, anyhow, one way or the other, after the death of the insured has occurred, and after the claim has been lodged, arrive with an “investigative report” of “material concealment of pre-existing disease”, when, ex facie, no such material concealment obtains.

11.    We note that the complainant is an illiterate seventy year old helpless lady who lost her only son.  She was the nominee, she approached the OP-Ins. Co. for the death claim of her son, but she was made to run from pillar to post. In our view, the OP - Ins. Co. should have promptly and dutifully settled the insurance claim without any hassles or harassment. If the insured had been aware of such attitude of the OP - Ins. Co., he could have politely refused to get his insurance policy from it.  No insured is desirous that to claim the insurance benefits after his death, his nominee/relative has to face such struggle and run from pillar to post.

12.    It is well evinced that [a] the premium was duly paid, [b] the insurance policy was valid, [c] the insured died a natural death, [d] after his death, and after the claim was lodged by his nominee, who was his aged mother, the OP – Ins. Co. conducting an “investigation” and “found” that the insured was hospitalized for blood in vomitus before the proposal form was filled, [e] there was no specific column in the proposal form to state whether or not the insured had ever had blood in vomitus in the past, [f] the OP – Ins. Co. failed to distinguish between ‘symptom’ and ‘sign’, between ‘disease’ and ‘illness’, failed to establish nexus between the averred earlier blood in vomitus and the cause of death.

13.    We find the impugned Order of the State Commission to be well-appraised and well-reasoned. The State Commission has concurred with the findings of the District Forum. Within the ambit and scope of Section 21(b) of the Act 1986, we find no palpable error in appreciating the evidence.

14.    The Complainant, the mother of the deceased insured, who lost her only son, is a seventy year old illiterate village lady.

The Act 1986 is for “better protection of the interests of consumers”. Its Statement of Objects and Reasons speaks of “speedy and simple redressal to consumer disputes”.

The death of the deceased insured occurred in 2014. The objective of an insurance policy is prompt dutiful payment of the sum assured to the nominee. Delay in itself dilutes the objective.

Here, after repudiating the claim on a totally untenable ground, the OP – Ins. Co. agitated, unsuccessfully, before the District Forum, and then before the State Commission. On concurrent findings being returned by both the fora, the OP – Ins. Co. preferred Revision before this Commission, where, too, its case fails miserably, at the stage of admission itself.

This is a plain case of an insurance company, with resources, on the one side, and an ordinary common consumer, without resources, on the other side.

After repudiating the claim on a totally untenable ground, the OP – Ins. Co. agitated, unsuccessfully, in the three consumer protection fora, unnecessarily wasting public time and monies, adding to the loss and injury to the Complainant, putting her to continuous trouble and prejudice.

All this is not viewed favourably, this necessitates cost.

15.   The Revision Petition, being patently misconceived and totally devoid of merit, is dismissed with cost of Rs. 2 lakh on the OP- Ins. Co., out of which Rs. 1 lakh shall be paid to the Complainant and Rs. 1 lakh shall be deposited with the Consumer Legal Aid Account of the District Forum within four weeks from the date of pronouncement of this Order.

The Award made by the District Forum, as confirmed by the State Commission, is sustained.

The OP – Ins. Co., through its Chief Executive, is directed to ensure the necessary compliance.

16.    Needless to add, for failure or omission in compliance, the District Forum shall undertake execution, both for ‘Execution’ under Section 25(3) and for ‘Penalties’ under Section 27 of the Act 1986, as per the law.

17. A copy each of this Order be sent by the Registry to the District Forum, to the Complainant, the Respondent herein, and to the Chief Executive of the OP Ins. Co., the Petitioner herein, within three days of its pronouncement.