This revision petition has been filed by the petitioner Future Generali India Life Insurance Co. Ltd., against the order dated 14.09.2016 of the State Consumer Disputes Redressal Commission, Maharashtra passed in FA No.A/16/239.

2.      Brief facts of the case are that the deceased wife of the complainant had availed Insurance Policy No.00633433 from opponent by paying the premium amount on 15/10/2010.  She had paid two premiums of the policy.  The complainant’s name was entered as ‘nominee’ of the insured in the policy.  As the deceased wife of the complainant felt uneasy she was admitted to L.T.M.G. Hospital, Sion.  According to the complainant, she was diagnosed of having a kidney stone and jaundice.  It is also stated that the hospital has given her blood of A +ve group whereas her blood group was B +ve.  Because of giving the blood of different blood group the wife of the complainant succumbed to death on 10/10/2011.  The complainant submitted the death claim to the opponent insurance company on 20/12/2011.  The opponent insurance company has repudiated the insurance claim by their letter dated 02/02/2012. Alleging that not sanctioning the claim of the complainant amounts to deficiency in service on the part of the opponent, the complainant filed consumer complaint praying that the opponent be directed to pay an amount of Rs.3,19,600/- as the claim, Rs.1,50,000/- as compensation for mental agony and costs of Rs.20,000/-. 

3.      The complaint was admitted and the opponent was issued with a notice.  However, despite of service of notice the opponent failed to appear before the Forum and hence, the complaint was proceeded ex-parte against the opponent.  The District Forum after going through the complaint, the evidence filed by the complainant on affidavit and the pleadings of the Advocate came to the conclusion that there is deficiency in service on the part of the opponent and partly allowed the complaint directing the opponent to pay an amount of Rs.3,19,600/-, compensation of Rs.25,000/- for mental agony and costs of Rs.15,000/- to the complainant within a period of one month failing which the amount will carry an interest @6% per annum till realisation by order dated 30.11.2015. The opponent Insurance Company preferred an appeal before the State Commission, however, the appeal was dismissed vide order dated 14.09.2016.

4.      Hence the present revision petition.

5.      Heard the learned counsel for the parties and perused the record.  Learned counsel for the petitioner stated that there was suppression of material information in the proposal form and that is why insurance claim was repudiated.  Learned counsel stated that the complainant filed first complaint being 112 of 2012 on 07.05.2012 alleging medical negligence against the hospital.  The Insurance Company was not made party in that complaint case. After some time, another complaint being 309 of 2012 was filed on 25.07.2012 against the insurance company where the hospital was not made a party. Thus, the respondent/complainant has filed two complaints for the same cause of action.  Learned counsel for the petitioner also argued that if one complaint/suit is pending in any court, another suit involving any of the issues which are being considered in the first complaint, cannot be filed as per the provision of Section 10 of the Code of Civil Procedure, 1908 (CPC).  Hence, the present complaint was not maintainable.

6.      The District Forum passed an ex-parte order against the petitioner herein and in appeal, the State Commission dismissed the appeal by observing that the transfusion of blood of wrong blood group was an accident.  Learned counsel argued that there was a suppression of material information while filling the proposal form.  The proposal form was filled on 01.10.2010 whereas the life assured was admitted in the hospital on 31.03.2010 for few days as evident from the certificate given on 01.04.2010 by Manah-Sneh Maternity & Medico Surgical Hospital.  In this certificate it has been clearly stated that the life assured was admitted on 31.3.2010 as she was suffering from obstructive jaundice.  The life assured had not given this information in the proposal form and therefore, the insurance was ab initio void, hence the claim was not payable.  Learned counsel further argued that the life assured has taken leave for treatment of her disease.

7.      On the other hand, learned counsel for the respondent/complainant stated that the first complaint was filed for medical negligence on the part of the hospital as wrong blood was transfused. Instead of B+ blood, A+ blood was given which ultimately caused the death of the life assured.  The second complaint has been filed against the insurance company for the insurance claim.  These are two different causes of action and hence two separate complaints have been filed.  The compensation granted in one complaint cannot affect the compensation to be granted in the second complaint.  The insurance claim will be governed by the insurance policy.  The policy is for Rs.1,59,800/- along with accidental benefit for the same amount.  Accordingly, the District Forum has allowed the claim of Rs.3,19,600/-.

8.      It was further argued by the learned counsel for the complainant that jaundice is not a permanent disease and it may be caused by water contamination. Once the person is cured from jaundice, the person is just like any other person.  As this was a temporary disease for some time, it was not necessary to report in the proposal form.  The life assured took leave on many counts and therefore, if one application is given for leave for on account of illness, it cannot be said that the life assured has taken all the leaves for treatment of the disease.  Hence, the leave record submitted by the insurance company does not prove anything.

9.      It was also argued by the learned counsel for the complainant that the fora below have given concurrent finding of facts and scope under the revision petition is quite limited in such cases.  The facts cannot be reassessed by this Commission in the revision petition.

10.    I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the material on record.  

11.    The present complaint was filed before the State Commission solely against the Insurance Company for the insurance claim as per the policy taken by the deceased life assured (DLA).  The first complaint was filed against the hospital for medical negligence and therefore, I do not see any violation of Section 10 of the CPC as the issue involved in both the complaints are different, even though the cause of action may be the same i.e. the death of the DLA by wrong transfusion of blood.

12.    So far as the present complaint is concerned, the petitioner has filed this revision petition on the ground that the DLA was suffering from jaundice and admitted in a Hospital.  The certificate dated 01.04.2010 given by the hospital Manah-Sneh Maternity & Medico Surgical Hospital does not clearly specify as to for what period DLA was in the hospital.  In the leave record also, there are a few applications where the leave has been taken on the ground of some illness.  I agree with the contention of the learned counsel for the complainant that jaundice is not such a disease, which was required to be mentioned in the proposal form because a person becomes completely fit after the disease is cured.  This is all the more important because the death has not occurred due to jaundice.  If the cause of death is different from the alleged pre-existing disease, the issue of pre-existing disease has to be considered in this light.  Hon’ble Supreme Court in Sulbha Prakash Motegaonkar And Ors. Vs. Life Insurance Corporation of India, Civil Appeal No.8245 of 2015, decided on 05.10.2015 (SC) has held the following:-

“We have heard learned counsel for the parties.

        It is not the case of the Insurance Company that the ailment that the deceased was suffering from was a life threatening disease which could or did cause the death of the insured.  In fact, the clear case is that the deceased died due to ischaemic heart disease and also because of myocardial infarction.  The concealment of lumbar spondylitis with PID with sciatica persuaded the respondent not to grant the insurance claim.

        We are of the opinion that National Commission was in error in denying to the appellants the insurance claim and accepting the repudiation of the claim by the respondent.  The death of the insured due to ischaemic heart disease and myocardial infarction had nothing to do with this lumbar spondylitis with PID with sciatica.  In our considered opinion, since the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured, the repudiation of the claim was incorrect and not justified.”

13.    The petitioner Insurance Company has alleged suppression of material information in respect of answers given by the life assured under column No.9.3, 9.5 and 9.6 of the proposal form.  The question and answers are mentioned below:-

“Q No.9.3:  In the past 3 years, have you undergone or been advised or are likely to undergo within next 30 days any medical investigation?

Answer: No.

Q No.9.5:  Have you ever been treated for symptoms of cancer/ tumour/cyst, diabetes, heart related disease, high blood pressure, urinary or kidney disorder, liver or gastrointestinal disorder, epilepsy, psychiatric or nervous system disorder, respiratory or blood disorder, any physical deformity, partial or complete blindness, any eye disorders or hearing abnormality, mental retardation, AIDS, or tested positive for HIV?

Answer: No.

Q No.9.6:   Have you ever met with an accident or any other diseases not mentioned above which required treatment or hospital care for more than 7 days or undergone any surgical operation at a hospital or clinic or undergone any investigations with other than normal or negative results?

Answer: No. ”

14.    In respect of question No.9.3, the question relates to investigations got done in previous three years.  The Insurance Company has not come up with any specific allegations that a particular investigation was got done by the life assured during the previous three years.  It is quite possible that the jaundice may have been diagnosed on the basis of the blood test, however, if the blood test was not reported in the proposal form, it cannot disentitle the complainant from the whole insurance claim.

15.    Similarly in respect of question no.9.5, the life assured could have given information in respect of the disease of jaundice as the same can be covered as a disease of liver disorder. As has already been observed that jaundice is not a permanent disease and if the information in respect of the jaundice was not given by the life assured after being cured, the same cannot disentitle the complainant for the total insurance claim in the light of the decision of the Hon’ble Supreme Court in Sulbha Prakash Motegaonkar And Ors. Vs. Life Insurance Corporation of India (supra).  Coming to the third question No.9.6, I find that the answer given for this question is correct as the Insurance Company has not filed any proof that the life assured was admitted in any hospital for about seven days.  The certificate given By the Manah-Sneh Maternity & Medico Surgical Hospital is only for two days and therefore, it is not required to be mentioned against this column. 

16.    The State Commission and District Forum have treated the death of the life assured from transfusion of blood of wrong blood group as an accident.  I agree with the view taken by the fora below.  From the above examination, it is found that the information of jaundice was not given in the proposal form.  However, it was not that material as could disentitle the complainant to get the total insurance claim.   In this background, the interest awarded by the District Forum @6% p.a. is set aside and the compensation of Rs.25,000/- awarded by the District Forum is also set aside.  The order of the District Forum and the State Commission stand modified accordingly.  The order of the District Forum as modified by this order be complied by the petitioner Insurance Company within a period of 45 days from the date of receipt/service of this order, failing which, an interest @9% p.a. shall be paid by the Insurance Company from the date of this order till actual payment.