Delhi

North East

CC/167/2014

Chanchal Sharma - Complainant(s)

Versus

Dir/ Aegon Religare Life Ins. Co. - Opp.Party(s)

23 Apr 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.167/2014

 

In the matter of:

 

	Chanchal Sharma W/o Shri Praveen Kumar Sharma G-1/1182, Mansarover Park Shahdara, Delhi-110032
		Complainant
	Versus
1	Aegon Religare Life Insurance Co. Ltd. Through Managing Director Nomura, B-Wing, First Floor, Unit No. 102 Near D-Mart, Hiranandi Business Park Hiranandani Gardan, Powai, MUMBAI-  400076
2	Aegon Religare Life Insurance Co. Ltd. Through Chief Executive Officer S-109, 2nd Floor, V3S Mall Laxmi Nagar, Delhi-110092
		Opposite Parties

 

	DATE OF INSTITUTION:	08-05-2014
	DATE OF DECISION      :	23-04-2016

 

 

N.K. Sharma, President:-

Nishat Ahmad Alvi, Member:-

 

Order

1. As per complaint her husband Shri Praveen Kumar Sharma is insured in two policies purchased by complainant being Policy No. 110813213950 and 110813213909 all for sum assured on Rs. 2,00,000/- (Rupees Two Lac only) with critical illness rider of same amount. Prior to issuance of the policies the underwriter of OP got conducted full body medical examination  with blood and urine tests of life assured at their own medical centre i.e. Chandan Health Care, Dilshad Garden, Delhi. As per medical examination at the time of issuing of policies the insured was quite healthy. Thereafter, OPs are accepting all the renewal premiums every year against above said policies.
2. In September 2013, complainant’s husband was diagnosed as Chronic Kidney Disease (CKD) patient. Information, whereof, was sent by complainant to OPs in October. Complainant further intimated the same on 15.11.2013. On 19.11.2013 complainant has also intimated the OPs about this disease in specified form alongwith all treatment documents. After treatment on 26.02.2014 complainant lodged a critical illness claim in specified format to the OPs but OPs inspite of granting the same, has rejected the claim, further forfeiting all the premium paid in respect of that policy, vide letter dated 12.03.2014. As per this rejection letter OPs have declined the claim of complainant as invalid and the policy being rendered null & void. Complainant replied to letter of rejection vide his letter dated 31.03.2014 duly received in the office of OP2 on 01.04.2014. By way of his reply complainant has explained that he has provided all the information to OPs’ employee with his best knowledge and belief as required by OPs and OPs have issued the policy after considering each and everything.  But OPs have not responded to this letter of complainant. And till now OPs are silent and not responding. Complainant has prayed for award of Rs. 4,00,000/- towards his critical illness Rider claim with interest Rs. 12,000/- and compensation of Rs.         2,00,000/- besides litigation expenses of Rs. 30,000/-. Total being Rs. 6,42,000/-with further interest of 18% p.a.
3. OPs by filing their reply has challenged the maintainability of complaint on the grounds (i) suppression of material facts. (ii) Bar of jurisdiction of this Forum. On merits, OPs have pleaded that for being entitled for critical illness benefits, policy specifically provides a condition precedent under clause A-6 and A-7 and the particular disease in A-7.4. Regarding the Chronic Kidney Disease OP has stated that the diagnose of Chronic Kidney Disease-V (CKD-V) and End Stage Renal Disease (ESRD) are life threatening disease and could not appear overnight. Complainant was suffering with said disease before the date of proposal, for insurance, which he has concealed. Agents and insurance advisors are merely facilitators to assist the proposer on the product chosen by the proposer and have no role to play in execution of bipartite policy contract between the insurer and the insured. OP issued the policy on the basis of Proposal Form and insurance contract is entered into between them on standard terms and conditions. OP has denied medical checkups prior to issuing policy, further submitting that the life assured appeared before the panel doctor of opposite parties, who put questionnaires to complainant, as per Medical Examination Report. Complainant’s statement before Doctor that he has neither suffered nor is suffering from any disease and was never been treated for symptoms of high blood pressure, diabetes, heart attack or heart disease, kidney disease, stroke chest pain etc. disorder of bone, spine or muscle and he signed the same, is proved to be false. Had the complainant given correct information of having disease of kidney, OP would not have issued the policy. Complainant has also falsely filled the Medical Examination Report. Para 6 of reply states that though medical examination of complainant was conducted but there were chances of that disease coming on surface even after preliminary check-up and investigations. Medical examination, however, does not dissolve the liability of the complainant to disclose any disease at the time of medical check-up. Complainant was advised Renal Transplant for the diagnosis of Chronic Kedney Disease Stage 5 on 30.09.2013 after a gap of over eight months from the date of commencement of the policy. Life assured suppressed material facts of prolonged treatment of several diseases while filling proposal form.  The aforesaid deliberate misrepresentations by the policy holder amounts to the misrepresentation and the fraud while contract of insurance is based on principle of Uberrima Fides i.e. the relationship of utmost trust and faith between the parties. Policy holder did not reveal the full facts, wilfully and deliberately, which were well within his knowledge, in order to play fraud with OP and to get the said policy issued. As per clause 2.4 of the policy- If any information etc from insured is found to be incomplete, incorrect or false, the company notwithstanding with any other applicable provision reserve the right to vary / terminate the benefits, which may be admissible, and declare the policy null and void.
4. As insured fraudulently suppressed material facts within his knowledge which he was obliged to disclosed as per section 45 of Insurance Act, two years bar is not applicable on Insurer. Claim is lawfully rejected on violation of terms and conditions of the policy in accordance with rules and regulations of IRDA. Regarding no response of the communication of complainant, OPs are not bound to enter into prolonged communication with the complainant. OPs have prayed for dismissal of complaint being not maintainable.
5. Both the parties filed their affidavits by way of evidence alongwith relevant records.
6. Heard and perused the record.
7. Going through all the records and as argued by both the parties main question to determine is as to whether insured was having Chronic Kidney Disease at the time of proposal for the insurance policies in question or not? If so, whether insured was having knowledge of disease and he intentionally and deliberately concealed the same with malafide intentions of getting the said policies or not?
8. Admittedly, as per policy in case of concealment of material facts insured loses his right to claim the insured amount. Complainant states (i) that he was not having such disease while applying for policies. The policies were issued after Panel Doctor of OP namely Chandan Health Care medically examined him and found him fit. It was only thereafter that the policy was issued. Not only this the same were also renewed by OP finding complainant medically fit for the same.
9. Only defence raised by OP is that Chronic Kidney Disease could not take place overnight and complainant had falsely stated in his proposal form that he has no such disease. Examination of insured by its panel doctor is not disputed by the OP. Only explanation OP has given is that the doctor asked questionnaires from complainant, answers whereof were believed by the doctor as correct. Full body examination by the panel Doctor with blood & urine test as stated by complainant is not specifically denied by OP. Now to decide to veracity of both the parties crucial evidence is medical treatment record.
10. Perusal of treatment record shows that on 30.08.2013 the insured was checked in Swamy Dayanand Hospital, where from he was referred to Nephrology Department of AIIMS. In AIIMS insured was registered on 9.9.2013 and certain tests were done and on 04.11.2013 AIIMS finally diagnosed Chronic Kidney Disease to the insured. Regarding detection of the disease in question and past history of complainant Ex. CW 1/4 contains statements of physician who attended critical illness, certificate of treatment by Max Super Speciality Hospital, where the insured was finally treated and certificate issued by Dr. Sumitra Bagchi of AIIMS.
11. As per attending physician statement first symptom of this disease was shown on 26.08.2013 while there was no past history thereof and it was first diagnosed by AIIMS on 30.09.2013. Hospital treatment also certified that it was diagnosed on 30.09.2013 in AIIMS. The same is further confirmed by certificate of Dr. Bagchi of AIIMS.
12. OP has not filed any document in support of its contention that the Chronic Kedney Disease was pre existing at the time of proposal what to call knowledge of the same to the Insured and complainant intentionally concealing the same.
13. Thus, it is established that there was, no pre existing Chronic Kedney Disease to the insured and there is no suppression or concealment of any material fact on part of complainant/ insured or any false statement on his part. In support of his claim complainant has placed on record an order passed by Hon’ble National Commission titled Manager, Bajaj Alliance Life Insurance Company Ltd Vs Raj Kumar passed on 01.05.2014 in Revision Petition No. 1318 of 2014, whereby it has been held that in case there is no proof that Insured was having particular disease, while he submitted Proposal Form, it can’t be presumed that the insured was aware of the ailment and concealed the same. In this case it is also observed by Hon’ble National Commission that usually the authorised doctor of Insurance Company examines the insured, assesses the fitness and after complete satisfaction then only the policy will be issued. Section 45 of Insurance Act has also been pleaded by complainant which specifically says that two years is the time limit to raise objection, if any false statement is found, by the Insurer. After that it has to be proved that Insured was having knowledge of the disease and he fraudulently concealed or mis-represented the same, which OP has failed to prove.
14. OP referred P.C. Chacko and another V/s Chairman, Life Insurance of India & others, 2007 (13) scale 329 wherein Hon’ble Supreme Court has dealt with an operation conducted to the insured four years prior to the proposal. In that case, there is deliberate concealment of the fact of operation which was well within insured’s knowledge. Another case referred by OP is Haji Ahmed Yar Khan Vs Abdul Gani (AIR 1937 Nag 270 at 272) passed by Hon’ble High Court which deals only obligation of insured to disclose all material facts which were within his knowledge at the time of proposal. This case is not applicable as Chronic Kedney Disease was not even existing on proposal. What to call knowledge thereof. Another case referred as Satwant Kaur Sandhu V/s New India Assurance Co. Ltd. (2009) 7 SCC 316 also fixes the obligation of the insured to disclose information if within his knowledge. This case is also not applicable as no existence/ knowledge of CKD is proved by OP. Similarly M/s. Seemax Construction Pvt Ltd. V/s SBI, AiR 1992 (Delhi) 197, also deals with suppression of material facts which were very much within his knowledge. Similarly, S.P. Chengalvarya Naidu V/s Jagnnath, AIR (1994) SC 853 is case where insured found withholding the vital documents and suppression of material facts within his possession and knowledge. Hence insured was held guilty for fraud. This case is not applicable as no possession of vital document or suppression of material facts to which insured might have knowledge is proved. OP has also referred Dineshbhai Chandrana V/s Life Insurance Corporation and another decided by Hon’ble National Commission in 242(2006) on 27.04.2006 wherein it has been observed that when an information on a specific aspect is asked for in the proposal form, an assured is under solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. Here also knowledge is a precondition. Thus, it is not applicable. Another case referred by OP is Bamdev Vs United India Insurance Co. Ltd., I (1994) CPJ 425 wherein it has been held that where the repudiation of any claim is ordered after due application  of mind and on valid reasons, it does not amount to deficiency of service. But as OP has failed to prove that it applied its mind to find out and relevant grounds before rejecting the claim this case is also not applicable in the present case. Another matter referred is New India Assurance Co. Ltd. V/s Pradeep Kumar, I (1997) CPJ 94 wherein Jurisdiction of Forum was held barred as insured failed to show any deficiency of service on the part of insurer. In the present case OP has failed to not establish the existence of Chronic Kidney Disease on proposal form and / or knowledge thereof. This amounts deficiency. Hence, this case is also not applicable in the present case. OP has also referred section 19 of Contract Act and Sita Holiday Resorts Limited V/s M/s Mohan Lal Harbans Lal Bhayana and Co. (1999-3) 123 P.L.R.D. 28, both of these deals with fraud and mis-representation. As per definition of these two knowledge and existence of the disease and its concealment is a pre condition to prove the same which OP has failed to prove.
15. Taking all the cases and the sections of Contract Act and the Insurance Act as well as evidence placed on record complainant successfully established his case that he was not having the Chronic Kidney Disease in question at the time of proposal. While OP has failed to establish Chronic Kidney Disease and / or knowledge and concealment of the same. OP’s plea of condition precedent for being entitled under critical illness rider complainant fulfilled all the conditions of clause A-6,A-7 & A-7.4.
16. On the basis of above findings we are of the considered view that the clause 2.4 of the policy as well as the section 45 of Insurance Act and the cases referred by OP are not applicable in the present case. Consequently he has not violated condition of this clause No. 2.4 of the policy. Thus, OP is deficient in not passing the claim of complainant by wrongly repudiated his claim without application of his mind.
17. Therefore, holding OP guilty of deficiency in service we  direct it to pay to complainant an amount of Rs. 4,12,000/- (Rupees Four Lac Twelve Thousand only) with interest @ 12 % p.a. thereon w.e.f. 08.05.2014 till final payment beside Rs. 50,000/- (Rupees Fifty Thousand only) compensation and cost of litigation cost of Rs. 25,000/- (Rupees Twenty Five Thousand only).
18. All these amounts shall be paid within 30 days from the date of receipt of copy of this order. Failing which interest on Rs. 4,12,000/- (Rupees Four Lac Twelve Thousand only) shall be charged @18% p.a. till realization in full.
19. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
20. File be consigned to record room.
21. Announced on: - 23.04.2016

 

 

(N.K.Sharma) President

(Nishat Ahmad Alvi) Member