Orissa

Jajapur

CC/62/2013

Gyanaranjan Panda - Complainant(s)

Versus

Divisional Manager L.I.C of India - Opp.Party(s)

Ld.Adv

25 Apr 2016

ORDER

IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                                      Present:  1.Shri Biraja Prasad Kar, President,

                                                                                      2.Sri Pitabas Mohanty, Member,

                                                                                      3.Miss Smita Ray, Lady Member.                                                                   

         Dated the 25th day of April, 2016.

                                        C.C.Case No.62 of 2013

Gyanaranjan Panda,Represented by father

Guardian Laxmidhar Panda

S/O Late Prahallad Panda, Vill.Pathapur,P.O.Raipur

-P.S. Balichandrapur    Dist. Jajpur.                                                                   …… ……....Complainant .                                                        .                                  

                              (Versus)

1.Divisional  Manager, L.I.C of India, Cuttack division, Post Box Bo.36,

Nuapatna,Cuttack.

    ,

2. B.M. L.I.C Jajpur Town Branch, At/P.O/Dist. Jajpur.      

  

3.Dr. Surendra Sahoo, Sahara Nursing Home, Kathagola, Mangalabag,

    Cuttack.

.                                                                                                                             ……………..Opp.Parties.                                                                                                                                                                                                                                                                                                                                          

 

For the Complainant:                           Sri  C.R. Ojha, Advocate

                                                       

For the Opp.Parties No.1 and 2          Sri G. Ch. Panda, Miss B.R. Rout,  Advocates.

For the Opp.Parties No.3                    None.

                                                                                                                          

                                                                                                      Date of order:   25. 04. 2016.

MISS SMITA ROY   ,LADY  MEMBER .

                        The complainant being the nominee of the deceased Subasini Panda filed this complaint case due to non settlement of the death claim of Subasini Panda (Deceased Life Assured) .

                        The case of the complainant is that the deceased Subasini Panda  (LA.herein after) during her life time obtained an Endowment Assurance policy with profit and Double Accident Benefit for the sum assured of Rs.1,00,000/- vide policy No.587482975 with premium of Rs.6,814/- commencing from 1.10.2008 to 1.10.2024 through O.P.no.1 . During the subsistence of the policy the life assured suddenly got admitted in Sahara Nursing Home,Cuttack and went to Coma and on 05.04.2009 the O.P.no.3 discharged  the Life assured for better treatment. Thereafter on 07.04.2009 the Life Assured again was admitted in Ideal Clinic and Research Center, Buxi Bazar ,Cuttack and the Life Assured died on 09.04.2009 . It is stated by the complainant that the DLA was working as a Sikhya Sahayak at Talua Balikuda UGME,School from 19.07.2007 to 30.03.2009 without any leave  or E.L . From 31.03.2009  the DLA was on leave and died on 09.04.2009. The husband of the LA preferred the death claim before the O.P.no.1 and 2 who repudiated the claim on the ground that the LA was suffering from diabetes as per the report of Sahara Nurshing Home  . Against the repudiation the husband of the LA appealed before the Insurance Ombudsman who rejected the death claim of LA. The complainant also challenged the opinion of Sahara Nurshing Home .

                        Being aggrieved by the repudiation order by the Insurance Ombudsman the complainant filed this dispute alleging deficiency of service on the part of the O.ps. with the prayer to direct the O.P.no.1 and 2 to pay  the death benefit of Rs.1,00,000/- along with other relief ‘or’  reliefs as the Forum deems fit and proper.

                        On being noticed the O.Ps.nos.1 and 2 appeared through their advocates and filed their written version denying the allegations made in the complaint petition. The O.Ps. have pleaded in their written version that  it is true to say that deceased Subhasini Panda had taken an Insurance Policy from the O.Ps. bearing policy No.587482975 and the date of commencement of the policy was 01.10.2008 for sum Assured Rs.1,00,000/-. In the proposal form, the deceased life assured has answered in Question No.11(IV) as “No” indicating that she was not suffering from decese relating to liver,stomach,heart,lungs,kidney,brain or nervous system. In question No.11(V) the deceased in the proposal form has mentioned that she has never suffered from diabetes, tuberculosis,High B.P, Low B.P, Cancer,Epilepsy,Hernia,Hydrocele, Leprosy and any other disease. In addition to the aforesaid fact the O.Ps. would humbly like to submit that the proposal form constitute the basis of contract in as much as basing on the solemn declaration made in the proposal from the O.Ps has accepted the proposal. Further the declaration in the proposal form also reveals that any misstatement of fact or misrepresentation which shall be discovered  subsequently after the contract is being concluded then the contract shall become void abnitio.

                                    The deceased was admitted in Sahara Nursing Home, Cuttack for treatment. As per the prescription and physician consultation dt.31.03.2009 , the deceased was suffering from T2 DM since eight years and on Bio-Insulin which was not mentioned by the deceased life assured at the time of proposal. The deceased  had thus given untrue statement in the proposal form. So the contract between the L.I.C and deceased to meet the sum assured under the policy after demise of Subhasnini Panda became null and void. Thus, the Sr.Divisional Manager has  rightly repudiated the death claim under policy No.587782975 by keeping in view of the section- 45 of the Insurance Act. Hence as per the undertaking in the proposal form the petitioner is not entitled to the sum assured under the policy No.587482975.

                         After repudiation of policy the same was intimated to Laxmidhar Panda on 09.10.2010 by Registered post. In that letter, it was intimated to Laxmidhar Panda , in case of dissatisfaction  of the repudiation, representation be made to Zonal Manager, LIC of India, East Central Zonal Office ,Patna . Thereafter the matter was carried on to the Zonal Office  by the  Laxmidhar Panda . But the decision of the repudiation of the Sr.Divisional manager remained upheld. The petitioner is thus not entitled to any claim under the policy No.587482975.

                        In para-6 and 7 of the complaint petition this O.P would humbly like to submit that the life assured was a known case of T2 DM since eight years depending on Bio-insulin and the said fact she did not disclose in the proposal from and thereby have committed breach of good faith as under section-45 of the Insurance Act.

                        Moreover, the Hon’ble Apex Court in Civil Appeal No.224/1959 (Mithoolal Nayak Vrs.LIC of India) reported in AIR 1962 SC 814 held that the deliberate concealment of fact by the proposer, that he/ she had been treated by the doctor before the policy was effected / revived , the policy is citiated and can not claim the benefit of a contract which has been entered  into as a result of fraudulent suppression of facts. It  has further held that all moneys that have been paid in consequence of the policy would belong to the company if the policy was vitiated by reason of fraudulent suppression of material facts by the insured. Neither section 65 nor section 64 of the Indian Contract Act has any application.

                        The Hon’ble National Commission in RP No.897/2001 ( LICI Vrs.Parveen Dhingraj) and in RP No.430/2001 (LICI Vrs.Smt.Krishna Devi ) has held that, one can not fault the LIC for having repudiated the insurance claim on the grounds that vital information has been with held.

                        It is false to say that the opinion of the doctor of Sahara Nursing Home is completely whimsical and illegal and it is vexatious as because the fact is mentioned on the prescription dt.31.03.09. Thus it is false to say that the opinion of Sahara Nursing Home is without any medical examination .

                        The petitioner has admitted in para-9 that he has filed one application before the Insurance Ombudsman, Odisha and it was rejected on 07.02.2012 . So the contention of the petitioner deserves no merit.

                        In view of the facts stated all above that the complaint petition deservers no merit and hence liable to be rejected.

                        Regd. Notice was issued to O.P.no.3 but he did not choose to contest the case by filing written version and hence he is set-expartee.

                        On the date of hearing we have heard arguments from the respective counsels of the parties.

                        From the pleadings it is an established fact that deceased Subhasini Panda( Life Assured herein after) the mother of the complainant during her life time had obtained an Endowment Assurance Policy with profit and double accident benefit policy bearing policy No.587482975 from O.P.no.1 for an assured sum of Rs.1,00,000/- for which a premium of Rs.6,814/- was to be paid annually. The present complainant was the nominee in the said policy. The policy commenced from 01.10.2008 . During the subsistence of the policy the Life Assured suddenly died on 09.04.2009 . It is alleged that the Life Assured was working a Sikhya Sahayak at Talua Balikuda UGME School from 19.07.2007 to 30.03.2009 without any leave and E.L and she had no serious ‘or’ major disease and was strong and stout. After death of Life Assured claim was lodged and the O.P.no.1 and 2 repudiated the claim of the complainant on the ground of suppression of material facts by the Life Assured regarding pre-existing disease and treatment and not disclosing it in the proposal form . Thereafter the husband of the Life Assured filed a case before the Insurance Ombudsman ,Odisha Bhubaneswar who also negativated the claim of the Life Assured. Thereafter the complainant has filed this case before the Forum.

                        The O.Ps.No.1 and 2 in support of their case have filed the photo copy of the proposal form of Life Assured and the 1^st treatment of the Life Assured on dt.31.03.09 in Sahara Nursing Home, Kathagoda Sahi, Cuttack. In the proposal form clause 11(V) it is written that  “Are you suffering from ‘or’ have you ever suffered from diabetes, tuberculosis etc……?                  answer is given “no”. In the prescription dt.31.03.09 it written T2 DM since 8 years on bio-insulin since 8 years. But the O.Ps.no.1 and 2 have not filed a scrap of paper regarding the pre-existing disease ,treatment of the Life Assured prior to submission of proposal form except the treatment paper of Life Assured . In the prescription dt. 31.03.09 wherein it is written that Life Assured was suffering forum T2 DM since  8 years . It is not known who has written it. The O.ps. no.1 and 2 have failed to place any documents on record regarding the treatment of Life Assured prior to 01.10.2008 / 17.10.2008  i.e the date of filing the proposal form . History of the deceased noted in the 1^st prescription (Physician consultation dt.31.03.09 it was mentioned that the Life Assured was suffering from T2 DM since 8 years on Bio-Insulin. No doubt ,this fact has been mentioned as patients history but the O.Ps.no.1 and 2 have failed to place any documents on record regarding the prior treatment, through the OPs.no.1 and 2 rely on the statement . No affidavit of the concerned doctor who recorded the history of Life Assured was filed.  Only on the basis of the recorded history it can not be held that the deceased was suffering from Type2 diabetes since 8 years prior to the filing of the proposal form by the Life assured. More voer the Life Assured was treated only for vomiting of and on.  

                        We have gone through a number of decisions, reported in 2010(2) CPR-340 (State Commision) (L.I.C Vrs. Smt. Vakeela) ,2010(2)CPR-312, (State Commision) (L.I.C Vrs.Smt.Hukum Devi), CPR-2010(2)-345-S.C(L.I.C Vrs.Smt.Mithlesh),2010(2)-CPR-350-State Commision (The Oriental Insurance Company Vrs. Mr.Vidya Sagar Vora & others), 2010(2)-CPR-355-State Commission (L.I.C  Vrs. Sangeeta Korwa) ,2010(2)-CPR-361 (L.I.C Vrs. Dharmesh Kumar), 2010(2)CPR-366-State Commission(L.I.C Vrs.Smt.Anju Raheja) .The learned State Commission after referring the decisions of the Hon’ble Appex Court have categorically /  concurrently held that:

“ unless and until a person is hospitalized for treatment of any disease ‘or’ undergone any operation in the near proximity of taking the policy , say a year ‘or’ two before, he can not be accused of concealing the factum of any disease ,which can be termed as pre-existing disease ‘.    

                        In the instant case there is no significant documents produced by the O.Ps no.1 and 2 that the Life Assured  had ever been admitted to the Hospital for any ailment before obtaining the policy. Mere reference in the prescription will not prove that the LA was suffering from pre-existing disease. On the other hand the complainant to prove his case filed one photo copy Certificate of the Head master UGME School ,Balikuda , wherein it is categorically mentioned that Smt.Subhasini Panda, DLA, Sikhya shayak joined in the school on 19.07.07 and has never been on long term leave or E.L till 30.03.09. She had been on leave from 31.03.09 and died on 09.04.09. From the certificate it is clear that the LA was hale and hearty from 19.07.07 to 30.03.09. From the aforesaid facts and circumstances of the case, we are of the opinion that only on the basis of recorded history of LA in the prescription dt.31.03.09  of  Sahara Nursing Home it can not be held that the DLA was suffering from Type2 Diabetes malitious DM since 8 years.

                        More over the O.Ps. no. 1 & 2  have repudiated the Insurance Claim of the complainant on the ground of suppression of material facts “ pre existing disease and  treatment “ prior to filing of the proposal form  . In such situation we are of considered view that the onus heavily lies with the O.Ps. no. 1 & 2   to  prove  by reliable and cogent evidence that prior to submission of proposal form the DLA was suffering with pre-existing ailment  as per observation of appellate Forum stated below :                          

1.                     2008(3)CPR-53_Rajsthan (Mumini Vrs.L.I.C of India & Others.

2.                     2005(2)CPR-528-Odisha (D.M,L.I.C Vrs.Surendranath Samal)

3.                     2005-CTJ-1008-N.C(Surinder Kaurd & Others Vrs.L.I.C India)

4.                     AIR-1991-SC-392( LIC of India Vrs.Smt. G.M.Chennabasemna)

                        In the present case the O.Ps. no. 1 & 2   have not filed any documentary evidence to prove that prior to accepting the proposal form, the O.Ps. no. 1 & 2 have examined the health of the Life Assured .Accordingly we are inclined to follow the observation of Hon’ble A.P, State Commission reported in 2014 (4) CLT-115-Hydrabad (B.M.L.I.C & Others vrs. Pasupulet Bhagya laxmi & Others) wherein it is held that :

            “ Insurance claim (life Repudiation on the ground that insured suppressed the material information with regard to health – Held - when the policy was issued by the           Insurance company with utmost good faith, the same yardstick has to be applied while settling the claims also - The LIC ought to have made thorough enquiry, investigation or necessary medical health check – ups before issuance of policy irrespective of the amount involved- without doing so, when they have issued the policy, now they cannot turn round and contend that they need not pay any amount as there was suppression of material information with regard to his health - All these discreet enquiries, investigations and health check-ups etc. ought to have been made before issuance of the policy itself - Having issued the policy they cannot repudiate the claim on the ground or the other - The Insurance company  failed  to  establish  that  the  life  assured  had taken  treatment  prior  to

obtaining the policy as stated supra, nor could prove the nexus between the alleged treatment and the cause of death-Appeal dismissed.”

                        “We have been observing that a number of cases, the Insurance companies are issuing policies basing on the statements made by the proposer in utmost good faith but when it comes to settlement of claims, they start examining the matter under the microscope”.

                        In view of the above narrated analysis as well as owing to the above observations of Appellant Forums and in absence of any documentary proof, cogent and valid evidence  regarding pre-existing ailment prior to submission of  proposal form , it is crystal clear  that the O.Ps. no. 1 & 2  have issued the Insurance policy to the  insured without medical examination at the time of accepting the proposal form and subsequently  have repudiated the Insurance claim of the complainant  on the pretext of pre-existing ailment  which is  only malafide ,arbitrary on the part of the O.Ps. no. 1 & 2   but also such plea /stand is not sustainable in the eye of law.

Accordingly the interest of justice will be best served in case this dispute will be allowed in favour of the complainant. We hold that there is no deficiency on the part of the O.P. no. 3.  Hence this order.                         

O R D E R

                          In the result the dispute is allowed against the O.Ps.no. 1 & 2  and dismissed against O.P. no. 3.  The O.P No.1 and 2 are directed to pay the Insurance claim of the complainant,  within one month after receipt of this order , failing which the O.Ps no.1 & 2. are liable to pay 9% interest  on the above insured value from the date of filing the claim i.e 04.06.13. till its realization .  No costs.                 

   This order is pronounced in the open Forum on this the 25th day of April, 2016. under my hand and seal of the Forum.