Chandigarh

StateCommission

A/51/2015

Star Health & Allied Insurance Co. Ltd, - Complainant(s)

Versus

Gurbax Singh - Opp.Party(s)

Gaurav Bhardwaj

06 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

First Appeal No.	:	51 of 2015
Date of Institution	:	20.02.2015
Date of Decision	:	06.04.2015

 

1. Star Health and Allied Insurance Company Ltd., SCO No.257, IInd Floor, Sector 44-C, Chandigarh, through is Branch manager.
2. Star Health and Allied Insurance Company Ltd., KRM Centre, VI Floor No.2, Harrington Road, Chetpet, Chennai, through its Principal Officer/Authorised Signatory.
3. Sh.Gurbalwinder Singh Goraya, Authorised representative of Star Health and Allied Insurance Company Ltd., Chandigarh, Resident of House No.185, Sector 11, Chandigarh.

 

……Appellants/Opposite Parties No.1 to 3

 

V e r s u s

 

1. Gurbax Singh son of Late Kartar Singh, Resident of House No.5457, Sector 38 (West), Chandigarh.

 

2. Harvinder Kaur wife of Sh.Gurbax Singh, Resident of H.No.5457, Sector 38 (West), Chandigarh.

              ....Respondents No.1 and 2/complainants

 

3.  Max Super Specialty Hospital, Near Civil Hospital, Phase-VI, Mohali, Punjab through its Director/Principal Officer.

 

....Respondents No.3/Opposite Party No.4

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Sh. Gaurav Bhardwaj, Advocate for the appellants.

                 Sh. Sudhir Theari, Advocate for respondents No.1 and 2.

                 Service of respondent No.3 dispensed with.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the order dated 09.01.2015, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainants (now respondents No.1 and 2) and directed Opposite Parties No.1 to 3 (now appellants), as under:-

“Hence, in view of the foregoing discussion, we allow the complaint of the complainant against the Opposite Parties No.1 to 3 and dismissed qua Opposite Party No.4.  The Opposite Parties No.1 to 3 are jointly & severally directed as under:-

[a]        To pay 70% of the claim amount i.e.       Rs.1,82,960.96 in terms of Clause No.5    of the Exclusion’s of the policy.

[b]         To pay Rs.35,000/- to the Complainant   as compensation, on account of deficiency in service, unfair trade practice and causing mental agony and    harassment;

[c]          To pay Rs.10,000/- as cost of     litigation;

The above said order shall be complied within 45 days of its receipt by the Opposite Party No.1 to 3; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a & b] of Para 14 above from the date of filing of this complaint i.e. 01.05.2013, till it is paid, apart from cost of litigation of Rs.10,000/-”

2.        The facts, in brief, are that the complainants, being husband and wife, took the Medi Claim Policy of Opposite Parties No.1 and 2 namely Star Senior Citizen Red Carpet, in May 2008, having coverage of Rs.2.00 lacs each, on payment of premium of Rs.9,500/- each.  It was stated that the said Policy was got renewed from time to time upto 20.05.2013.
3.       It was further stated that on 31.10.2011, complainant No.2 fell in the bathroom of her residence, as a result whereof, she suffered hairline fracture in her left wrist, for which she took treatment from the doctor.  However, in the month of December, 2011, complainant No.2 felt slight pain in her right shoulder. Upon diagnosis, it was found that her shoulder was frozen.  It was further stated that  complainant No.2 took treatment from 5/6 doctors, but when the pain did not subside, MRI of her right shoulder was conducted.  It was further stated that the report of MRI revealed that complainant No.2 was suffering from Right Shoulder Rotator Cuff Tear/Right Shoulder Impingement Syndrome/Right shoulder Acromio-Clavicular Joint Arthritis. Complainant No.2 was advised surgery of her right shoulder. 
4.       It was further stated that, thereafter, complainant No.2 visited Max Super Specialty Hospital, Phase-VI, Mohali, for treatment. She was admitted there on 24.05.2012 and operation of her right shoulder was conducted on 25.05.2012.  Complainant No.2 remained hospitalized in Max Super Specialty Hospital (Opposite Party No.4) from 24.05.2012 to 29.05.2012, for treatment/surgery of her right shoulder. She was discharged on 29.05.2012, after making payment of Rs.1,82,960.96Ps. towards her treatment.  
5.       It was further stated that Opposite Party No.1 was also informed about the treatment taken by complainant No.2 and, as such, the claim was lodged with it. Thereafter, complainant No.1 in response to the letter dated 25.05.2012 of Opposite Party No.1, sent the claim form alongwith discharge summary, bills, investigation reports etc. All the requisite documents, as and when demanded by Opposite Parties No.1 to 3, were supplied by the complainants, to them. It was further stated that to the utter surprise of the complainants, Opposite Parties No.1 to 3, vide letter dated 21.07.2012 Annexure C-29, repudiated the genuine claim of the complainants, on the ground that complainant No.2 had been a known case of Parkinsonism, since 2006, which fact was not disclosed by her, at the time of filing in the proposal form, and, as such, it amounted to concealment/non-disclosure of material facts.  It was further stated that, not only this, Opposite Parties No.1 and 2, also cancelled the Medi-Claim Policy of complainant No.2, and refunded the premium amount of Rs.9,500/- vide letter dated 09.08.2012 Annexure C-30. It was further stated that the genuine claim of complainant No.2 was illegally and arbitrarily repudiated by Opposite Parties No.1 to 3.
6.       It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing Opposite Parties No.1 to 3 to reimburse the claim amount, alongwith interest @18% P.A.; pay compensation, to the tune of Rs.1 lac, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.22,000/-
7.       Opposite Parties No.1 to 3, in their joint written version, admitted that the complainants took the Medi Claim Policy of Opposite Parties No.1 and 2, namely Star Senior Citizen Red Carpet, in May 2008, having coverage of Rs.2.00 lacs each, on payment of premium of Rs.9,500/- each.  It was stated that the said Policy was got renewed from time to time upto 20.05.2013. It was also admitted that complainant No.2 took treatment from the said Hospital for the injury, in question. It was further stated that at the time of inception of the Policy, when the proposal form was filled in and submitted by the complainants, it was not disclosed that complainant No.2 had been suffering from Parkinson disease since 2006, though she had been taking treatment for the same.  It was also admitted that the claim was lodged by complainant No.2, which was repudiated by Opposite Parties No.1 to 3. It was further stated that as per the medical record Annexure R-24 relating to complainant No.2 of Dr.Bhatia’s Clinic, she (complainant No.2), allegedly fell in the bathroom and was seen in the said clinic by the Doctors on 31.10.2011, where it was found that she had fracture lower end left radius. She was given conservative treatment (POP sling). It was also stated in Annexure R-24 Parkinsonism+. It was further stated that on 25.03.2012, complainant No.2 was seen in Silver Oaks Hospital, Mohali, vide OPD Card No.14971 Annexure R-21, at page 192 of the file, where she was diagnosed with right shoulder acutely painful with limitation, no diabetes but with Parkinsonism +++.  It was further stated that, not only this, complainant No.2 also took treatment from Dr. Swapnil Amit Singh, on 17.05.2012, vide Annexure R-18, wherein it was clearly mentioned by the treating Doctor that she (complainant No.2) had been suffering from Parkinsonism since 2006. It was further stated that the medical record, aforesaid, of complainant No.2, clearly indicated that she had been suffering from Parkinsonism since 2006, and was still on medication.  It was further stated that, as per the contract of insurance, it was the duty of the proposer to disclose all the material facts to the insurer, so that it (insurer) could evaluate the material facts for arriving at a decision, as to whether, it should accept the proposal or not. It was further stated that complainant No.2, failed to disclose the material fact, which she knew, as a result whereof, the Policy stood vitiated. It was further stated that the claim  of complainant No.2 was rightly rejected, as per Condition No.7 of the terms and conditions of the Policy, vide letter dated 21.07.2012. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 to 3, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
8.       Opposite Party No.4, in its written version, admitted that treatment, referred to above, was given to complainant No.2, in its Hospital, for which she was charged an amount of Rs.1,82,960.96Ps. It was stated that Opposite Party No.4 had no concern, so far as the repudiation of claim of complainant No.2, by Opposite Parties No.1 to 3, was concerned. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.4, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
9.       The Parties led evidence, in support of their case.
10.       After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 
11.       Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No. 1 to 3.
12.       On notice of the appeal, respondents No.1 and 2 were served, and put in appearance on 27.03.2015.
13.       Since the complaint against respondent No.3, which was Opposite Party No.4, in the consumer complaint, was dismissed by the District Forum, its service was dispend with, by this Commission, vide order dated 27.03.2015.
14.       We have heard the Counsel for the appellants, respondents No.1 and 2, and, have gone through the evidence, and record of the case, carefully. 
15.       The Counsel for the appellants/Opposite Parties No.1 to 3, submitted that the contract of insurance, being based on utmost good faith, it was the duty of the insured/complainant No.2, to disclose, as to whether, she was suffering from, or had suffered from any disease(s), at the time of signing and submission of the proposal form at the time of inception of the Policy.  He further submitted that the life assured, at the time of filling up the proposal form, was put questions, as to whether she had ever suffered from cancer, chronic kidney disease, CVA Brain Stroke, Alzhemer Disease and Parkinson's disease.  He further submitted that, to the all questions, the answers of the proposer, were  “no”. He further submitted that, whereas, on the other hand, the medical record, of complainant No.2, referred to above, clearly indicated that she had Parkinsonism since 2006, and was still on medication. He further submitted that since the information on the aforesaid material facts, was knowingly and willingly suppressed, by the life assured/proposer,  the contract of insurance, being based on fraud, stood vitiated. He further submitted that the claim submitted by complainant No.2, was, thus, rightly repudiated by the appellants/Opposite Parties No.1 to 3.
16.       On the other hand, the Counsel for respondent No.1 and 2/complainants, submitted that the life assured had furnished correct and true information, that she had not ever suffered and was not suffering from any ailment/ailments, at the time of signing the proposal form. He further submitted that any treatment in relation to a disease taken much earlier to the submission of the proposal form and inception of the Policy, was not at all relevant for the purpose of repudiation of claim. He further submitted that the treatment, in respect whereof, the claim was filed by the complainants did not have any relevance with Parkinson disease. He further submitted that since complainant No.2 did not suppress the material facts, the repudiation of claim, in question, was illegal. He further submitted that the District Forum was right, in coming to the conclusion, that the claim of the complainant was illegally and arbitrarily repudiated by Opposite Parties No.1 to 3, and, as such, they were deficient, in rendering service. He further submitted that the District Forum was right, in accepting the complaint, and granting relief, to the complainants.
17.       After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, respondents No.1 and 2, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted, for the reasons, to be recorded hereinafter. It has been repeatedly held that the contract of insurance falls in the category of contract of “UBERRIMAE FIDEI” meaning thereby, a contract of utmost good faith, between the parties. When information, on a specific aspect, is asked for, in the proposal form, the insured/proposer is under a solemn obligation, to make a true and full disclosure of the same (information), on the subject, which is within his/her knowledge. Of course, obligation to disclose, extends only to the facts, which are known to the assured/proposer, and not to what he/she ought to have known. The Hon'ble Supreme Court of India in United Insurance Co. Ltd. Vs. M.K.J. Corporation, III (1996) CPJ 8 (SC)= (1996) 6 SCC 428, laid down the principle of law, that it is a fundamental principle of Insurance Law, that utmost good faith must be observed, by the contracting parties. Good faith forbids either party from non-disclosure of the facts, which the party privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing to the contrary. To the similar effect, the principle of law, was laid down in Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd.,  II (2000) SLT 323 = I (2000) CPJ 1 (SC) .  In P.C. Chacko and Anr. Vs. Chairman, Life Insurance Corporation of India and Ors, III(2008) CPJ 78 (SC), it was observed as under:-

11” Section 45 of the Insurance Act reads as   under:-

45. Policy not to be called in question on ground of mis-statement after two years- No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose.

Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal form.

12. Section 45 postulates repudiation of such policy within a period of two years. By reason of the aforementioned provision, a period of limitation of two years had, thus, been specified and on the expiry thereof the policy was not capable of being called in question, inter alia on the ground that certain facts have been suppressed which were material to disclose or that it was fraudulently been made by the policy holder or that the policy holder knew at the time of making it that the statement was false. Statute, therefore, itself provides for the limitation for valid repudiation of an insurance policy. It takes into account the social security aspect of the matter.

13.There are three conditions for application of Second Part of Section 45 of the Insurance Act which are:

“(a)  the statement must be on a material matter or must suppress facts which it was material to disclose;

(b)    the suppression must be fraudulently made by the policy-holder; and

(c)    the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose”.

18.       The purpose of taking a Policy of insurance is not, in our opinion, very material. It may serve the purpose of social security, but then the same should not be obtained with a fraudulent act, by the insured. Proposal can be repudiated, if a fraudulent act is discovered. The proposer must show that his intention was bonafide. It must appear, from the face of record. In a case of this nature, it was not necessary for the insurer to establish that the suppression was fraudulently made by the policy holder, or that he/she must have been aware at the time of making the statement that the same was false or that the fact was suppressed which was material to disclose. A deliberate wrong answer, which has a great bearing, on the contract of insurance, if discovered, may lead to the Policy being vitiated in law.
19.       In Rampreeti Yadav Vs. U.P.Board of High School & Intermediate Education & Ors, V(2003) SCT 394= JT 2003 (Supplt.I) SC 25, the principle of law, laid down, was to the effect that it is well settled law that mis-representation itself, amounts to fraud, in some cases.
20.         Keeping in view the principle of law, laid down, in the aforesaid cases, now let us see, as to whether, in the instant case, the life assured i.e. complainant No.2, or the proposer i.e. complainant No.1, acting on her behalf, at the time of taking the Insurance Policy, suppressed the material facts, or had made a wrong declaration or not.  Admittedly, the complainants, took the Medi Claim Policy of Opposite Parties No.1 and 2 namely Senior Citizen Red Carpet, in May, 2008, having coverage of Rs.2.00 lacs each, on payment of premium, which was got renewed from time to time upto 20.05.2013.
21.       In the proposal form Annexure R-97 (page 261) copy whereof is Annexure R-25 (page 259), a number of questions were put to the assured/proposer, the answer to one of which given by the proposer, acting on her behalf,  was as under;-

 

“	Medical History (Please answer Yes or No). A mere dash is not sufficient. Has the proposed person/s suffered from any dieses/illness irrespective of whether hospitalized or not or sustained any accidents. If yes, give details”	No
	in the past 12 months	No
	before 12 months	No”

 

Gurbax Singh, complainant No.1, husband of complainant  No.2 and also her proposer, acting on her behalf, also signed the following declaration and authorization below the proposal form Annexure R-97 (page 261)):-

“I hereby declare and warrant that the above statements are true and complete. I consent and authorize the insurers to seek medical information from any hospital/medical practitioner who has at any time attended or may attend concerning any disease or illness which affects the physical or mental health of the persons proposed for insurance. I agree that this proposal shall form the basis of the contract should the insurance be affected. If after the insurance is affected it is found that the statements answers or particulars stated in the proposal form and/or other questionnaire are incorrect or untrue in any respect the Insurance Company incur no liability under this Policy.”

22.       The additional questions and answers to the same, attached with the proposal form at page 260/262, duly given and signed by Gurbax Singh, on 16.05.2008, at Chandigarh, husband and proposer of the life assured, a well educated person, and acting on her behalf are reproduced as under:-

 

	“Have you ever suffered from/Are you suffering from any of the following disease:
	Cancer	No
	Chronic Kidney Disease	No
	CVA/Brain Stroke	No
	Alzheimer Disease	No
	Parkinson's Disease	No”

 

23.       According to the Opposite Parties, the life assured/proposer did not give true answers to the above questions. The Opposite Parties, conducted the investigation of the case and produced the medical records of the complainants, referred to above. As per the medical record Annexure R-24 of Dr.Bhatia’s Clinic, complainant No.2 allegedly fell in bathroom and she was seen in the said clinic by the Doctors on 31.10.2011, when it was found that she had fracture lower end left radius. She was given conservative treatment (POP sling). It was stated in Annexure R-24 Parkinsonism+. Further, on 25.03.2012, complainant No.2 was seen in Silver Oaks Hospital, Mohali, vide OPD Card No.14971 Annexure R-21, at page 192 of the file, wherein it was stated that she was diagnosed with right shoulder acutely painful with limitation, no diabetes, but with Parkinsonism +++.  Not only this, complainant No.2 also took treatment from Dr. Swapnil Amit Singh, on 17.05.2012, vide Annexure R-18, wherein it was clearly mentioned by the treating Doctor that she (complainant No.2) had been suffering from Parkinsonism since 2006. From the detail of the diagnosis, extracted above, it is evident that the life assured before the inception of Insurance Policy, in question, in May 2008, had been suffering from Parkinson disease, since 2006 and had been taking treatment, from various Hospitals. From the documentary evidence, produced in the shape of medical records, it was proved that at the time of filling in the proposal form and obtaining the Insurance Policy, the life assured/proposer suppressed the material information, that she had been suffering from Parkinsonism since 2006, and taking treatment for the same. As per the declaration made by the proposer/life assured, in the proposal form, and extracted above, in case of any misstatement or suppression of material information, the Company had the right to repudiate the claim, under the Policy.  It was not the case of complainant No.1 that the life assured was not aware of the symptoms of any disease, or the treatment, she was taking from the said Hospitals. On the other hand, it could also be said that since the life assured herself was taking the treatment, from the Hospitals, referred to above, for the ailments, indicated hereinbefore,  she and her husband, being the proposer very well knew about the same. Thus, the proposer/life assured was required to  furnish correct information, in the proposal form.  Thus, while answering the questions, in the proposal form, as also the additional questions attached therewith, extracted above, the proposer/life assured concealed the true facts. The proposer, in clear-cut terms, stated that the life assured had not suffered from or was suffering from the symptoms/ailments of Parkinsonism. Since the proposer made a false declaration, in the proposal form, that the life assured was neither suffering from nor had suffered from the symptoms/ailments, referred to above, he certainly suppressed the material facts. In Life Insurance Corporation of India Vs. Smt. Santosh Devi, Revision Petition No.3042 of 2008, decided by the National Consumer Disputes Redressal Commission, New Delhi, on 03.09.2014, reference was made to Life Insurance Corporation of India & Ors. vs. Asha Goel (Smt) & Anr. (2001) SCC 160, wherein the Hon’ble Apex Court, interalia, held as under:-

“The contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material (sic material fact) must be disclosed, otherwise, there is good ground for rescission of the contract.  The duty to disclose material facts continues right up to the conclusion of the contract and also implies any material alteration in the character of the risk which may take place between the proposal and its acceptance. If there are any misstatements or suppression of material facts, the policy can be called into question. For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person.”

24.        The National Commission also relied upon Satwant Kaur Sandhu vs. New India Assurance Company Ltd. (2009) 10 SCR 560, wherein the Hon’ble Apex Court, interalia, observed that the term material fact has been explained by a Court in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk.  Any fact which goes to the root of the contract of Insurance and has a bearing on the risk involved would be material. Not only this, in Life Insurance Corporation of India Vs. Smt. Santosh Devi (supra), it was held that mis-representation and concealment of fact, made by the life assured, in the proposal form, was certainly a material fact, and had the true state of affairs been disclosed to the insurer, it would have been quite probable either the proposal would have been rejected or a higher premium would have been charged. Since the proposer of complainant No.2, in the instant case, made mis-representation/suppressed the material fact personally related to her wife, the Policy became void-ab-initio. Opposite Parties No.1 and 3, were, thus, legally right, in repudiating the claim of complainant No.2. There was, therefore, no deficiency, in rendering service, on the part of Opposite Parties No.1 and 3. The District Forum was wrong, in holding to the contrary.
25.       No doubt, the District Forum, observed that Opposite Parties No.1 to 3 have not placed any document on record to prove that complainant No.2 had been under regular treatment for her Parkinson disease (PD) since 2006 and that while going through the Exclusion Clause of Ann.R-6  of the Policy Document, it was revealed that the Company (Opposite Parties No.1 to 3) was not liable to make any payments, under the Policy, in respect of expenses, whatsoever, incurred by the insured, in connection with or in respect of all pre-existing diseases, as defined therein, existing and suffered by the insured person, for which treatment or advice was recommended or received, during the immediate preceding 12 months, from the date of proposal. It was further observed by the District Forum that even, in those circumstances, 50% of each and every claim, arising out of all pre-existing diseases, as defined and 30% in case of all other claims, which were to be borne by the insurer, and, as such,  complainant No.2 was still entitled for the disbursement of her claim, to the extent of 50% to 70%, even if, there was an existence of pre-existing disease immediately preceding 12 months, from the date of proposal of her Policy.  It may be stated here, that in the instant case, the question was of suppression of material facts, regarding her pre-existing disease, and not, as to whether, the disease(s), which the life assured/ complainant No.2 suffered, was pre-existing or not. As stated above, the contract of insurance is based on utmost good faith. The parties to such contract are bound to disclose all the facts, in their knowledge and which are material. It was not for the life assured to decide, as to which material facts, he/she was to disclose and which he/she was not to disclose, but, on the other hand, it was for the Insurance Company, to decide the same. Since, as per the declaration, made by the proposer of complainant No.2, in the proposal form, it was clearly mentioned that, in case of any misstatement or suppression of material information, the Company had the right to repudiate the claim, under the Insurance Policy, in our considered opinion, the latter rightly repudiated the claim. In this view of the matter, the findings of the District Forum, being perverse, are reversed. .   
26.       Not only this, Condition No.7, under the heading Conditions of the Policy Annexure R-6, reads as under:-

“The Company shall not be liable to make any payment under the Policy in respect of any claim if such claim is in any manner fraudulent or supported by any fraudulent means or device, misrepresentation whether by the insured Person or by any other person acting on his behalf”

27.       The afore-extracted Condition No.7 of the Policy Annexure R-6, was also sufficient to legally authorise the insurer to repudiate the claim, in toto, as it was based on misrepresentation, and concealment of material facts, which constituted indulgence into fraudulent means/device on the part of the life assured and the proposer, acting on her behalf. Reliance on other Clauses, mentioned in the impugned order, by the District Forum, was completely misplaced. Those Clauses could only be invoked and relied upon by the District Forum, had there been no suppression of material facts, by the proposer of the life assured, acting on her behalf, while answering the questions in the proposal form and the additional questions attached therewith, in respect of disease of Parkinson with which she (life assured) had been suffering since 2006.  Since the very contract of insurance stood vitiated, on account of concealment of material facts, constituting fraud, no reliance on other Clauses of the Insurance Policy Annexure R-6, could be placed by the District Forum, to hold that the life assured was entitled to the partial claim of 70%. The findings of the District Forum, in this regard, being perverse are reversed.
28.       No other point, was urged, by the Counsel for the appellants and respondents No.1 and 2.
29.       In view of the above discussion, it is held that the order passed by the District Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
30.       For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum is set aside.
31.       Certified copies of this order, be sent to the parties, free of charge.
32.       The file be consigned to Record Room, after completion

Pronounced.

April 6, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

Rg

 

 

STATE COMMISSION

(First Appeal No. 51 of 2015)

 

Argued by: Sh. Gaurav Bhardwaj, Advocate for the applicant/                               appellants.

                 Sh. Sudhir Theari, Advocate for respondents No.1 and 2.

                 Service of respondent No.3 dispensed with.

       

 

Dated the 6^th    day of April 2015

 

ORDER

 

            Alongwith the appeal, an application for placing on record, copy of the proposal form Annexure R-97, signed by the complainants, in respect of the Policy, in question,  by way of additional evidence, was moved by the appellants, on the ground, that the same is essential for the just decision of appeal.

2.       Notice of the application was sent to respondents No.1 and 2/complainants, to which reply was filed by them.
3.       Arguments on the said application have been heard.
4.       It may be stated here, that since the original proposal form Annexure R-97 had already been placed, on record, at page 261 of the District Forum file, as such, copy of the same, sought to be placed, on record, by way of additional evidence, would be merely a surplusage. In view of this, there is no justification, whatsoever, in allowing the application, for placing on record copy of the document Annexure R-97, by way of additional evidence, at this stage. The application is, accordingly, dismissed.
5.       Arguments, in the main appeal, already heard
6.       Vide our detailed order of the even date, recorded separately, this appeal has been accepted, with no order as to cost. The order of the District Forum has been set aside.
7.       Certified copies of this order, as also of the main order be sent to the parties, free of charge.

 

 

Sd/-            Sd/-                              Sd/-

(DEV RAJ) MEMBER

(JUSTICE SHAM SUNDER (RETD.)) PRESIDENT

(PADMA PANDEY) MEMBER

Rg