PER:
Nidhi Verma, Member
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35 and 36 against the opposite parties on the allegations that the complainant is minor and is also nominee of Bachetter Singh son of Dial Singh deceased and his life Insurance Policy of the opposite parties having Policy No. 21528627 and is filing the present complaint through his father Gurpreet Singh son of Late Bachetter Singh. Bachitter Singh deceased, grandfather of the complainant had availed a Life Insurance Policy of the opposite parties having policy No. 21528627 with Life Insurance Cover of Rs. 3,50,000/- to the opposite parties and he appointed the complainant as nominee in this insurance policy being his grand son. Unfortunately, Bachitter Singh died on 9.5.2020 and as such the complainant through his father immediately lodged claim for obtaining the insurance claim of the above mentioned insurance policy of whom deceased Bachitter Singh was policy holder and also all the required documents were supplied to the opposite parties by the complainant as and when demanded by the opposite parties to process the insurance claim. The opposite parties assured the complainant that the insurance claim of Rs. 3,50,000/- will be released to him within a fortnight but inspite of waiting for 2 months on claim was released to him by the opposite parties and after several visits the opposite parties credited the bank account of Gurpreet Singh i.e. the father of the complainant with Rs. 35,216/- on 18.7.2020 and was informed by the opposite parties that the insurance claim has been released to the complainant in full. The complainant approached the opposite parties and asked about the remaining amount of Rs. 3,15,000/- being the insurance claim not released by opposite parties and the opposite parties told the complainant that only an amount of Rs. 35,216/- is due being insurance claim and remaining amount cannot be paid by them but no reason whatsoever was given by them for not paying the remaining amount of Rs. 3,15,000/- by the opposite parties. The complainant has prayed the following reliefs:-
- The opposite party may kindly be directed to immediately release the insurance claim of Rs. 3,15,000/- to the complainant.
- It is further prayed that an amount of Rs. 50,000/- as compensation and Rs. 30,000/- as litigation expenses on account of mental and physical harassment caused to the complainant at the hands of opposite parties, in the interest of juice, equity and fair play.
Alongwith the complaint, the complainant has placed on record affidavit of complainant Ex. C-1, self attested copy of insurance policy Ex. C-2, Self attested copy of death certificate of Bachitter Singh Ex. C-3, Self attested copy of date of birth certificate Ex,. C-4, Self attested copy of bank statement Ex. C-5.
2 Notice of this complaint was sent to the opposite parties and opposite parties appeared through counsel and filed written version by interalia pleadings that the insured willfully and fraudulently concealed the material facts regarding her health condition at the time of purchasing of the insurance policy. The insured gave wrong answers to the questions of the personal statement submitted at the submission of the proposal for purchase of insurance product knowing well that those were incorrect and stated that he is in good health (Ex. RW/1) However on receipt of claim, same was scrutinized and it was established that infact the suffering from type 2 Diabetes with STEMI with CAD-SVD with TA to LAD with LV Dysfunction EF 35% and this was not disclosed in the application for obtaining insurance policy dated 30.5.2019 hence the claim was rejected and conveyed to the complainant vide letter dated 20.7.2020. Copy of the investigation report is Ex.RW/2, copy of the record collected during investigation regarding pre-existing disease and hospitalisation of the complainant is Ex.RW/3 and copy of rejection letter is Ex.RW/4. The claim of the complainant was rightly rejected by the opposite party on account of concealment of facts. Therefore, it is evident that the insured was prejudicial to the contents of "Uberrima Fides' which is the basis of all Insurance contracts. Moreover, the fact of ill health and consequent treatment was well within the knowledge of the insured and he was a willful suppression to obtain insurance fraudulently. Had he disclosed history of his pre-existing disease the insurance policy would not have been issued in favour of the insured and hence the insured did not stick to the "Principle of Utmost Good Faith". Therefore on the strength of above factors, the competent authority of opposite party repudiated the liability under the said policy. The complainant is debarred to file the instant complaint due to his own act and conduct. The complainant tried to defraud the opposite party and knowingly concealed the health conditions of the insured at the time of submission of the claim which clearly reveals that mala fide intention of the complainant to grab the public money; hence the complaint is liable to be dismissed. The insured had willfully and wrongly with ill intention concealed the material facts regarding his health at the time of obtaining the insurance policy and as such the said policy was declared null and void under the provisions of Indian Contract Act, 1872 as well as per the terms and conditions of the insurance contract. The complaint is liable to be dismissed being uncalled for, unwarranted and misuse of the judicial process. The complainant is estopped to file the instant complaint as there is no deficiency in service on the part of the Opposite Party as defined in Section 2(1)(g) of the Consumer Protection Act, 1986 under the heading Deficiency. The insurance policy is a 'De Novo' contract i.e. it is a contract of UTMOST GOOD FAITH technically known as "UBERRIMA FIDES". According to this doctrine the proposer who is one of the parties of the contract, is presumed to have means of knowledge, which are not accessible to the opposite party, who is the other party to the contract. Therefore the proposer (life assured) is bound to disclose everything affecting the judgment of the insurer, no matter howsoever unimportant it may seem to him/her (proposer.). In all the contracts of life insurance, the proposer is bound to make full disclosure of all the material fact and not merely those, which he thinks material, misrepresentation, non-disclosure or fraud in any document leading to acceptance of the risk automatically discharges the insurer from all liabilities under the contract. At the time of submission of the proposal and statement regarding health for obtaining the insurance policy, the life assured is bound to make full disclosure of all the facts relating to his/her health but the insured deliberately gave false answers to the questions of the proposal form. Had he mentioned her true state of health while answering questions of the proposal from the contract of insurance would have not been effected. The complaint against the Opposite party does not lie before the Commission under the Consumer Protection Act 1986 with regard to the rejected claim. The matter is also to be decided by a civil court at full scale trial requiring the complete pleadings and evidence according to law the summary trial under the Consumer Protection Act, 1986 is not the proper remedy for the complaints. The Opposite party had rightly refused the death claim of the Life Insurance policies of the deceased. In view of the provisions contained in the Insurance Act, 1938 which is a specific statue meant for dealing with the disputes under the contract of insurance the provisions of the Consumer Protection Act 1986 cannot be invoked for dealing with the matter covered by Insurance Act. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite parties placed or record affidavit of Arpit Higgins alongwith documents.
3 We have heard the Ld. counsel for the complainant and opposite party and have carefully gone through the record and written arguments placed on the file.
4 In the present complaint, Bachitter Singh deceased, grand father of the complainant had availed a life insurance policy of the OP having policy No. 21528627 with life insurance cover of Rs3,50,000/- commencing on 1st June 2019 by paying premium of Rs50,000/- . Bachitter Singh died on 09.05.2020 and the complainant through his father immediately lodged claim for obtaining the insurance claim of the above mentioned insurance policy and also all the required documents were supplied to the opposite parties by the complainant as and when demanded by the opposite parties to process the insurance claim.
5 The opposite parties assured the complainant that the insurance claim of Rs 3,50,000 will be released to him within a fortnight but inspite of visiting for 2 months no claim was released to him by the opposite parties and after several visits the opposite parties credited the bank account of Gurpreet Singh i.e. the father of the complainant with Rs.35,216 on 18th July 2020 and was informed by the opposite parties that the insurance claim has been released to the complainant in full. The complainant approached to the opposite parties and asked about the remaining amount of rupees 3,15,000 being the insurance claim not released by the opposite parties and the opposite parties told the complainant that only an amount of rupees 35,216 is due being insurance claim and remaining amount cannot be paid by them but no reason whatsoever was given by them for not paying the remaining amount of rupees 3,15,000 by the opposite parties.
6 Ops stated in their written version ,that the Insured gave wrong answers to the questions to the personal statement submitted at the submission of the proposal for purchase of insurance product knowing well that those were incorrect and stated that he is in good health . However ,on receipt of the claim, same was scrutinized and it was established that in fact the insured was suffering from type 2 Diabetes with STEMI with CAD-SVD with PTCA to LAD with LV Dysfunction EF 35% and this was not disclosed in the application for obtaining insurance policy dated 30.05.2019, hence the claim was rejected conveyed to the complainant vide letter dated 20.07.2020. The claim of the complainant was rightly rejected by the Ops on account of concealment of facts . Accordingly, the Ops has already paid the fund value of the policy amounting to Rs35,216/- as per decision already conveyed to the complainant. Ops denied that no reason has been given for rejection of the claim . The letter dated 20.07.2020 is self contained and fully detailed showing reasons for rejection of the claim.
7 After gone through the facts and circumstances of the case we are of the considered view that, as per the declaration made by the insured in the proposal form all the questions asked about the medical history was marked as ‘No’ by the insured (Ex.Rw/1) and as per investigator report IO came to know that LA was suffering from heart disease since past few years and was taken treatment from BBC Heart Care, Jalandhar . IO visited the said hospital and collected medical records, according to which LA was k/c/o type -diabetes Mellitus, STEMI (anterior wall) , post MI recurrent angina, single vessel disease,PTCA stent to LAD done, LV dysfunction, EF= 35% ( EX RW2), hence the claim was rejected and conveyed to the complainant vide letter dated 20.07.2020 (EX. RW/4) . On other hand , as per complainant details ,LA Bachitter Singh was a healthy person and did not have any illness. LA had died suddenly on 09.05.2020 around 3.00 AM at home due to heart attack and same is also disclosed by neighbours as per investigator report (Ex. RW2) . After several visits the Ops credited the bank account of Gurpreet Singh i.e. father of the complainant with Rs. 35216/- on 18.07.2020 and was informed by the Ops that the insurance claim has been released to the complainant in full.
Now the question arises that :-
- How the Ops have reached upon the conclusion that late Bachitter Singh was suffering from heart disease since past few years.
- Did they provide the repudiation letter to the complainant .
- Amount credited by the Ops to the complainant is correct as a claim of the insurance policy.
8 Opposite parties placed on record the copy of the record collected during investigation regarding pre- existing disease and treatment of the complainant from BBC Heart Care , Jalandhar (Ex.Rw3) but it is pertinent to mention here that OPs are failed to provide the affidavit of concerned doctor from BBC Heart Care Hospital, Jalandhar. It is well settled law that contents of controversial copy of certificates are not per-se admissible under section 13(4) of Consumer Protection Act 1986 and it is also well Settled law that contents of certificate should be proved by way of affidavit of person who had signed documentary certificate. In the present case no affidavit has been placed on record of Dr. (Maj Gen) Chanranjit Singh from BBC Heart Care, Jalandhar. Further, OPs also appointed Inside Track service as investigator. Ops has placed on record photostate copy of report of Inside Track Service. Ops did not file affidavit of Inside Track Service investigator in order to prove the contents of investigation report. It is held that Bajaj Allianz Life Insurance Co . Ltd. & Anr. Versus Suresh Kumar & Anr. (F.A No.117/2017) documents could be proved by way of affidavit of person who had signed the document. Hence adverse inference is drawn against the Ops for not filing the affidavit of the investigator – Inside Track Service in the present matter. Reliance in this connection has Manikant Vs. New India Assurance Co.Ltd. 1(2012) CPJ 88 (NC) of the Hon’ble National Commission wherein it has been held that the surveyor did not appear in court and subject himself to cross examination nor was any affidavit filed by him to prove his report . Producing a document in court does not by itself constitute proving the document. It has to be backed by credible evidence. In the instant case, no evidence was led to prove the above report in the absence of which the said certificate has little evidentiary value. This Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to rely upon unproved medical certificate and investigation reports placed on record. Further, it is usual with the insurance company to show all type of green pastures to the customer at the time of selling insurance policy and when it comes to payment of the insurance claim they invest all sort of excuses to delay the claim or to repudiate the claim in the fact of this case ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.UshaYadav& Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
By holding the genuine claim of the complainant and by repudiating the claim of complainant, the opposite party is deficient in service and unfair trade practice.
9 Moreover, records of BBC Heart Care Hospital, Jalandhar ( Ex. RW 3) placed on record by the Ops , where name of the patient is mentioned as Mr.Bachittar Singh but further detail i.e. son of and address is missing , which we can not relate whether is it of same person who is insured in the present policy or not . It is pertinent to mention over here that , no reason assigned by the insurance company as to why insurance company did not obtain any medical fitness certificate from insured at the time of issuance of life insurance policy. This Commission is of the opinion that obtaining of medical fitness certificate is essential at the time of issuance of life insurance policy in order to ascertain fitness of insured because life insurance policy is directly related to life of insured . Since the deceased was above 45 years at the time of taking the policy as such his medical examination was necessary. Hence, Ops cannot raise the question of Pre existing disease at this stage. Commission is of the opinion that insurance company cannot be allowed to take benefit of its own laxity and lapses.
10 We have also gone through some judicial pronouncements relevant to the present case. In case M/s ICICI Prudential Life Insurance company Ltd. Vs Veena Sharma & Others 2014(4) CLT 507(NC), the Hon’ble National Commission held that it was for the insurance company to prove that complainant was suffering from pre-existing disease and has knowingly failed to disclose the same. The Hon’ble National Commission has also relied upon a case decided by the Hon’ble Supreme Court titled Balwinder Kaur Vs Life Insurance Corporation of India, Civil Appeal No. 7969 of 2010 decided on 13.9.2010, wherein it was held that the onus to prove that deceased had obtained policy by suppressing the material facts relating to his illness, was on the corporation at the time of taking policy and he deliberately suppressed the facts.
11 Furthermore , The opposite parties assured the complainant that the insurance claim of rupees 3,50,000/- will be released to him within a fortnight but inspite of waiting for two months no claim was released to him by the opposite parties and after several visits the opposite parties credited the bank account of gurpreet Singh i.e. the father of the complainant with rupees 35,216 on 18th July 2020 and was informed by the opposite parties that the insurance claim has been released to the complainant in full and told the complainant that only an amount of Rs.35216/- is due being insurance claim and remaining amount cannot be paid by them but no reason whatsoever was given by them for not paying the remaining amount of Rs. 3,15,000/- . On other hand Ops stated that on receipt of the claim same was considered and investigated but was rejected by the Ops due to non disclosure of Pre existing disease and repudiation letter sent on dated 20.07.2020 (Ex RW/4) but Ops failed to submit any postal receipt regarding the same dispatched or received by the complainant. However, commission is of the opinion that the Ops have failed and further refused to perform their duty towards their client and deal in very un-business like manner with the complainant . As such, the complainant is entitled to the relief claimed in the complaint
12 From the aforesaid discussion, it transpires that Opposite party has wrongly repudiated the claim of the complainant. As such, opposite party is directed to make Rs. 3,15,000/- to the complainant. Complainant is also entitled to Rs. 10,000/- as compensation on account of harassment and mental agony and Rs 7,500/- as litigation expenses from the opposite party. Opposite Party is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
26.10.2023
