This is a complaint u/s 12 of C.P.Act 1986 filed by complainant Dipankar Mondal wherein it is contended inter alia to the effect that his wife Smt. Suparna Sarkar (deceased) took three Insurance Policies covering risk of her life from the O.P. L.I.C.I., Balurghat Branch which is under the Divisional Office at Jalpaiguri. Those LIC Policies are known as Policy No.:-456063904, dt.-24.08.2009 with death benefit Sum-assured of Rs. 5lacs, another Policy No.:- 456577330,dt.-19.03.2010 with death benefit Sum-Assured of Rs. 2.50lacs and another Policy No.:-456577339, dt.-19.03.2010 with Sum-Assured of Rs.1lac.Those policies were nominated in the name of this complainant. At the date of commencement of those policies she was leading a normal life. Subsequently on the basis of biopsy-test report dt.28.06.2010 of said Suparna Sarkar the then physician suspected that it was a case of carcinoma of rectum. Subsequently her medical treatments were made by different doctors on different dates which were to be found from the several Annexures vide Annexure Nos. IV,V,VI,VII,VIII and IX , but unfortunately she died on 05.03.12 due to failure of heart vide Annexure X. On 12.04.12 the complainant filed claim application for demise of his wife insured Suparna Sarkar before the Insurer the O.P.-Life Insurance Corporation of India at Balurghat Branch Office which was, unfortunately repudiated by the said O.P. Hence this case.
The O.Ps. contested this case by filing W/V and denied all the material allegations as alleged by the complainant against them (O.Ps.).It is specific case of the O.Ps. that at the time of taking three insurance policies she was not leading a normal life and she took those policies by suppressing material facts of her previous ailments which was not disclosed at the time of taking the said policies. The deceased life assured gave false answers in the Proposal Form about her state of health and answered in negative in the relevant columns of the Proposal Form about her earlier diseases with the ill motive/ intention to defraud the O.Ps. The relevant medical papers prove that the de ceased was suffering from “Hypothyroid” for last seven years since long before the commencement of those policies and the life assured was also suffering from ”Pain and bleeding P/R” since the year 2009. It is also contended that the life insured being Assistant Teacher of Khadimpur Girls’ High School took leave on medical ground from 11.06.2008 to 16.06.2008 and again from 21.06.2008 to 28.06.2008 which were not disclosed while taking policies from O.Ps. As the complainant’s wife insured suppressed her ailments at the eve of taking those three policies and the treatment were made for above mentioned ailments within the statutory period mentioned in Sec 45 of Insurance Act, the claimant is not entitled to get reliefs as sought for. According to O.Ps., as there was no deficiency of service and unfair Trade and Practice, the complainant is not entitled to get any relief as sought for and as the deceased life assured suppressed the material facts of her ailments at the relevant time of taking policies, the complaint is liable to be dismissed for violation of Sec.45 of Insurance Act. In these circumstances, according to O.Ps., the complaint is liable to be dismissed with cost.
Upon the above averments both parties went on hearing on the following points:-
POINTS TO BE DECIDED
1. Whether there was any suppression regarding ailments to the wife of the complainant at the eve of making /taking policies?
2. Whether the claimant is entitled to get reliefs as sought for on the basis of the documents filed in connection with this case.
3. To what other relief or reliefs is the complainant entitled ?
DECISION WITH REASONS
Points 1, 2 & 3:-
All these points are taken up together for consideration for the sake of convenience as they are interlinked and interrelated.
It is the specific case of the complainant that as there was no material suppression at the eve of taking policies, the complainant is entitled to get relief(s) as sought for.
On the other hand it is specific case of the O.Ps. to the effect that as the wife of the complainant i.e. insured suppressed her ailments during taking policies and as there is/was violation of provision of Sec.45 of Insurance Act due to suppression of the material ailments of the wife of the complainant, the complaint is liable to be dismissed.
It this cardinal principles of law to the effect that the complainant is to prove his case in getting reliefs as sought for beyond all reasonable doubt.
Admittedly, Suparna Sarkar (deceased) the wife of the complainant took three Insurance Policies covering risk of her life from the O.P. insurance Company. Admittedly said life insured died on 05.03.2012 i.e. within 2 years from the date of 19.03.2010 when two Insurance Policies viz. Insurance Policy No.456577330 and 456577339 were made and within 2 ½ years from 24.08.2009 when the policy no. 456063904 was made.
We have perused the entire documentary materials on record filed by respective parties with meticulous care. We have also perused the relevant provision of Sec. 45 of Insurance Act wherein we have found materials to discuss that the O.P. has stated that “All the columns of Insurance agreements were filled up by or on behalf of Insured the wife of the complainant where, as per her version are found to be correct, but she suppressed her real ailment there, the complainant is not entitled to get any sum amount and relief as paid for”. Whether there was any suppression regarding her ailment or whether the life assured had made a statement ”fraudulently or not” in the policy agreement, all matters are to be judged as per Provision of Sec 17 of the Contract Act. Whether certain facts are or are not material will have to be adjudicated having regard to the views of reasonable and Prudent Insurer about those facts. Materiality is a question of fact, to be decided in the circumstances of each case. Every case is to be finally disposed of according to its own merits. In the present case the risk of 1st Insurance Policy i.e. Policy No. 456063904 of Rs.5lacs was commenced on 24.08.09 the Life assured i.e. the Insured the wife of complainant died on 05.03.2012 i.e. after two years from the date of commencement of this risk. The claim was repudiated by the O.P. more than the period of two years i.e. on 09.01.2013 since the date of risk.
It reveals in record that a document in relation to treatment of hypo-thyroid of the life assured was filed by O.P. to prove the alleged suppression of ailments of the Insured. But on close scrutiny of the same we find no name or signature with date of any doctor by which this Insured was treated. So this document bears no basis. Rather Annexure V, filed by complainant shows and proves that the Insured was medically treated by doctor on 21.06.2010 in relation to her ailment. After scanning the relevant materials on record and after having considered the materials on record and having regard to the citations filed by respective parties we have found materials to say that the first insurance policy was made on 24.08.2009. The life assured died on 05.03.2012 i.e. after two years from the date of effecting the said policy. So, according to provision of Sec 45 of Insurance Act the O.P. could not prove any material to repudiate the claim of Rs.5,00,000/- as claimed by this complainant, the husband of life assured.
It reveals in record that the second and third policies of same dated 19.03.2010 for sum assured of Rs.2,50,000/- and Rs. 1,00,000/- respectively were made by agreement policies executed by this O.P. and the life assured. This life assured died on 05.03.2012 which is 14 days before the effecting date of two years of these policies. But as the claim of repudiation was made on 09.01.2013 which is more after two years of said effecting date of 19.03.2010 and as the O.P. has failed to establish the plea of false statement as alleged by the complainant and other relevant material matter in relation to suppression and fraudulent allegedly made by complainant are not well established, we think the O.P. must be held liable for said repudiation of the claim in question.
After close scrutiny of the materials on record and after having regard to the arguments we got sufficient materials to opine that according to plea of the O.P. in relation to life assured’s alleged fraudulent statement on the policy agreement in relation to suppression of real ailments, unfortunately the O.P. could not adduce any sufficient materials. Accordingly we do hold that there was sufficient material in proving the deficiency in service on the part of the O.P. On the other hand in view of our above mentioned discussions we think the complainant has adduced sufficient materials which remain unrebutted and for which the complainant is entitled to get relief as sought for.
Thus the case succeeds.
Hence it is,
O R D E R E D
That the C.C. No.44/13 u/s 12 of C. P. Act 1986 filed by complainant Dipankar Mondal be and the same is decreed on contest against the opposite party with cost of Rs.2,000/- to be paid by the O.P. in favour of the complainant.
The O.P. is further directed to pay a sum of Rs.8,50,000/- being the total sum assured of those three insurance policies in favour of the complainant.
The O.P. is further directed to pay a sum of RS.30,000/- to the complainant as compensation for his harassment and mental agony.
The O.P. is further directed to liquidate the said entire decretal amount in favour of the complainant within one month from this date failing which the complainant will be at liberty to recover the said entire decretal amount along with interest @10% interest p.a. to be calculated from the date of filing of this case till recovery of the entire dues by filing a separate proceeding against the O.P. as per provision of law.
The O.P. is further directed to deposit a sum of Rs. 5000/- in the account of State Consumer Welfare Fund.