Order dictated by:

Sh.S.S. Panesar, President.

1.       Rajinder Singh has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that   he is father and nominee of deceased Jatinder Singh who got his life  insured with the opposite party for sum assured of Rs. 5,00,000/- by getting insurance policy No. 16827227 dated 29.4.2014 by paying a premium of Rs. 50000/-. Jatinder Singh unfortunately died on 12.1.2015 at his residence at village Dharamkot  inspite of his good health and young age. At the time of his death, deceased Jatinder Singh was healthy and was not suffering from any disease. After the death of his son  Jatinder Singh, complainant lodged claim with the opposite party  by fulfilling all the requirements and forwarded all the requisite documents. But opposite party repudiated the claim of the complainant vide letter dated 31.10.2015 on the ground that deceased was suffering from disease of nervous disorder prior to the obtaining of the insurance policy. Opposite party has rejected the claim of the complainant by taking false and frivolous grounds. The complainant has sought for following reliefs vide instant complaint :-

(a)     Opposite parties may be directed to pay the amount of Rs. 5,00,000/- ;

(b)     Opposite parties be also directed to pay litigation expenses .

Hence, this complaint.

2.       Upon notice, opposite parties  No.1 & 2 appeared and contested the complaint by filing written statement  taking certain preliminary objections therein inter alia that deceased Jatinder Singh willfully and fraudulently concealed the material facts regarding his health conditions at the time of purchase of insurance policy. The deceased gave wrong answers to the questions of the personal statement  knowing well that those were incorrect and stated that he is in good health. But he died on 12.1.2015 i.e. shortly after purchase of the policy. The claim was investigated by the opposite party and it was revealed that the insured was not keeping of health prior to the purchase of the insurance policy as he had not disclosed the fact of pre proposal hospitalization/treatment for vomiting of blood. Had he disclosed history of his pre existing disease, the insurance policy would not have been issued in favour of the deceased. Therefore, on the above factors, the claim was repudiated and the same was conveyed to the complainant vide letter dated 31.10.2015 ; that complainant is etopped to file the instant complaint as there is no deficiency in service on the part of the opposite party ; that deceased life assured whiling filling up the personal statement gave  the following answers to the questions of personal statement declaration of good health :-

But all the above answers were wrong and Jatinder Singh deliberately and fraudulently gave the false and incorrect information regarding his health. On merits it is submitted that  the insured as well as the complainant did not disclose the pre-existing disease of Jatinder singh he was suffering from , as such the matter was duly investigated by the opposite party and it was revealed that the deceased was already suffering from the disease of nervous disorder and the said problem was not disclosed to the opposite party, as such the claim of the complainant was rightly rejected  and  the complainant was informed vide letter dated 31.10.2015. Remaining facts as narrated in the complaint were denied and a prayer for dismissal of complaint was made.

3.       Opposite party No.3 did not opt to put in appearance despite service, as such it was ordered to be proceeded against ex-parte.

4.       In his bid to prove the case complainant tendered into evidence his duly sworn affidavit Ex.CW1/A, copy of policy Ex.C-1, copy of receipt Ex.C-2, copy of death certificate of Jatinder Singh Ex.C-3, copy of letter dated 31.10.2015 Ex.C-4, copy of employment certificate by UAE Ex.C-5, affidavit of Sh. Satpal Singh S/o Rajinder Singh Ex.CW2/A, affidavit of Harbhajan Singh Ex.CW3/A, copy of identity card Ex.C-6, affidavit of Dr. Bachittar Singh Ex.CW4/A, copy of identity card Ex.C-7  and closed his evidence.

5.       To rebut the aforesaid evidence Sh.S.K.Vyas,Adv.counsel for the opposite parties No.1 & 2 tendered into evidence affidavit of Sh.Amit Khanna,Associate Manager Legal Ex.OP1,2/1, copy of letter dated 31.10.2015 Ex.OP1,2/2, copy of policy documents Ex.OP1,2/3 and closed the evidence on behalf of opposite parties NO.1 & 2.

6.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of the complainant.

7.       On the basis of the evidence on record, ld. Counsel for the opposite parties has vehemently contended that it is not disputed that Jatinder Singh son of Rajinder Singh (now deceased) got insurance policy in dispute issued  in his favour bearing policy No. 16827227 dated 29.4.2014 on payment of premium amount to the tune of Rs. 50000/-. It is also not disputed that the life assured died on 12.1.2015 and the complainant applied for insurance claim under the Insurance policy in dispute with the opposite parties. However, opposite party repudiated the claim of the complainant on the ground that life assured suffered from Nervous disorder prior to getting the insurance policy in dispute and he had concealed the previous disease at the time of getting the insurance policy issued in his favour. Had the life assured informed the opposite party that he suffered from disease in dispute, opposite parties would not have issued any insurance cover in favour of the life assured. The repudiation letter accounts for Ex.OP1,2/2. Since the life assured was malafide in getting the insurance policy in dispute issued in his favour by concealment of material facts regarding the disease suffered by him,  so the opposite party renders this contract of insurance illegal and void. Hon'ble Supreme Court of India in case Satwant Kaur Sandhu Vs. New India Assurance Company Ltd IV (2009) CPJ 8 (SC) that in case of mediclaim policy where the policy holder suffering from chronic  diabetes and renal failure not disclosed while obtaining the mediclaim insurance policy, this suppression of material fact has been fully proved by the opposite party. Apart from this Hon'ble  Supreme Court of India observed in case Satwant Kaur Sandhu Vs. New India Assurance Company Limited 2009(8) SCC 316 that :-

           “A mediclaim policy is a non-life insurance policy meant to assure the policy-holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, the obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment.”

8.       Not only that , ld.counsel for the opposite parties has further contended that  the instant policy in dispute is a unit linked policy, complainant or life assured do not fall within the ambit of “Consumer” as defined u/s 2 of the Consumer Protection Act  and this Forum has got no jurisdiction to entertain a complaint case in that eventuality. Reliance in this connection can be had on Ram Lal Aggarwalla Vs. Bajaj Allianz Life Insurance Co.Ltd and another in Revision Petition no. 658 of 2012 decided on 23.04.2013 (NC) that where the policy was taken by the complainant for investment of the premium amount in the share market which is for speculative gain, the complaint does not come within the purview of Consumer Protection Act, 1986. Reliance was also placed on the decision of Hon’ble National Commission, New Delhi in case titled as Smt.Abanti Kumari Sahoo Vs. Bajaj Allianz Life Insurance Company Limited in First Appeal no. 162 of 2010. 

9.      On the basis of the aforesaid discussion, ld.counsel for the opposite parties has vehemently contended that the instant complaint is liable to be dismissed and the same may be dismissed accordingly with cost.

10.    But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has been able to prove his case. It is an admitted fact that Jatinder Singh now deceased took insurance policy bearing No. 16727227 dted 29.4.2014 for getting the life insured against a sum of Rs. 5 lacs, copy of the Insurance policy accounts for Ex.C-1. Opposite parties after making investigation about the health of Jatinder Singh (now deceased) on 16.5.2014 accepted the premium amount of Rs. 50000/- as first premium and issued receipt dated 16.5.2014 which is Ex.C-2 on record. Jatinder Singh died unfortunately on 12.1.2015 inspite of having good health. As such complainant being real father of the deceased, forwarded an insurance claim to the opposite parties. However, opposite parties vide letter dated 31.10.2015 repudiated the claim of the complainant stating untenable reasons that investigation conducted by the opposite parties has established that life assured  was suffering from nervous disorder prior to the  issuance of the insurance policy and this fact was not disclosed by the deceased on April 29,2014. Hence, the  complainant filed the instant complaint for undoing the injustice of opposite parties . In order to prove his case, complainant himself has made into witness box   as his own witness and filed duly  sworn affidavit Ex.C-1. However, reason given in the preliminary objection of the written version  is different to that of reason given in the repudiation letter Ex.C-4. In Ex.C-4 it has been mentioned that deceased was suffering from “nervous disorder” whereas in preliminary objection No.1 it is averred that the deceased has concealed the fact that he  was hospitalized for vomiting  of blood . Opposite parties accepted the first installment of premium after due enquiry conducted by them and it was the confirmed  fact that Jatinder Singh now deceased provided them true facts about his health and did not conceal anything from the opposite parties. Now the opposite parties have alleged that they conducted investigation and  then repudiated the claim of the complainant . But while adducing evidence, the opposite party did not place on record any enquiry report nor produced  the person as a witness , who conducted the alleged enquiry. On the other hand the complainant produced Satpal Singh Ex.CW-2,  Harbhajan Singh Ex.CW-3 and Dr.Bachittar Singh Ex.CW4  to prove that Jatinder Singh deceased was having a sound health until his death and he did not suffer from any disease until his death. On the other hand opposite parties have failed to produce any witness  or a medical officer in support of their claim. The affidavit of lone  witness, which has been pressed into service  on behalf of opposite parties , is their official, who is not a  medical professional  nor he prepared any report or conducted any investigation. Beside this  no  document i.e. medical report/investigation  report has been placed on record  by the opposite parties for the perusal of this court. In such a situation the stand of the opposite parties that life assured suffered from some disease prior to the issuance of the insurance policy or that he has concealed the factum  at the time of getting the Insurance policy issued, does not appear to be tenable. Reliance in this connection can be had on  Life Insurance Corporation of India –Pettioner Vs. Baljit Kaur 2013(1) CLT page 650 (NC), wherein it has been held that where  cause of death remained unidentified, question of insured having  known the disease he suffered from and having deliberately not disclosed  it in the proposal form, would not arise at all. In an other leading case titled as Meena Devi Vs. Director General reported in Consumer Protection Judgement 1(2014) CPJ 36 (NC) it has been  held that in this case death claim was repudiated by the Insurance company on the basis of suppression of material facts. But it was held that there is a column in proposal form for certificate of a medical officer of Life Insurance Company who reports about the health of insured before the acceptance of installment. In this case, the case of the complainant was allowed by National Commission and the opposite party was directed to pay the insurance claim to the complainant.

11.    The other contention of the opposite parties that the instant complaint does not fall under the purview of consumer dispute on account of the fact that instant Insurance policy was a unit linked policy. But, however, opposite parties have not taken any objection in the written version  in this regard for the reasons best known to them. The complainant cannot be taken by surprise by the opposite parties at the time of arguments  without any pleadings to that effect in the written version. Even otherwise also, the complainant has made a prayer for grant of sum assured only under the Insurance policy in dispute and he has not asked for any unit fund value vide instant complaint.  Clause 3(3) of the  Standard Policy Provisions clearly lays down as under:-

   “Death benefit : If the life assured dies during the policy term (subject to policy being in force), the Death benefit payable shall be the higher of the following:-

Sum Assured less any Partial withdrawals (as defined in clause 3(6) or Unit Fund Value.”

12.     Since no unit fund value has been claimed vide instant complaint and the complainant having sought for the assured amount to the tune of Rs. 5 lacs only under the provisions of Insurance policy in dispute, therefore, the objection raised by the counsel for the opposite party during the course of arguments that it was unit linked policy or that the complainant is not a consumer under the Consumer Protection Act, does not hold good to oust the jurisdiction of this Forum . As such we hold that this Forum has  the jurisdiction to entertain and try the instant complaint and the dispute involved in the complaint falls within the purview of Consumer dispute . Law relied upon by the opposite parties in this context is not applicable to the facts of the present case.

13.               From the aforesaid discussion, it emerges that complainant has been able to prove his case. The opposite parties have been deficient in service and have wrongly repudiated the claim of the complainant without any reasonable excuse. As such instant complaint succeeds and the opposite parties are directed to pay a sum of Rs. 5 lacs as “assured amount” on the basis of Insurance policy No. 16827227 , the complainant, who also happens to be a nominee of the life assured under the Insurance policy. Opposite parties are further directed to pay compensation to the tune of Rs. 3000/- besides cost of litigation is assessed at Rs. 2000/-.  Compliance of this order be made within a period of 30 days of the receipt of copy of this order ; failing which, amount awarded shall carry interest @ 9% p.a from the date of filing of the complaint until fll and final recovery. Since Rajinder Singh happens to be second class heir of  DLA Jatinder Singh, therefore, he is directed to account for the  granted amount to first class heirs of DLA. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated : 21.9.2016

/R/                                                                         ( S.S.Panesar )

President

                                                                             (Anoop Sharma)

                                                                                      Member