(Delivered on 04/07/2017)
Per Mr. S.B. Sawarkar, Hon’ble Member
1. The present appeal is filed against the order of the District Forum, Nagpur passed in complaint No. 619/2008 dated 18/03/2009 dismissing the complaint with cost.
2. The complainant filed a consumer complaint that her deceased life assured (DLA) husband had taken three policies of the opposite party (in short O.P.) Nos. 1 to 3, with a total value of Rs. 3,00,000/-. The policies were given after medical examination and filing of form. On 27/06/2006 the DLA become uneasy and was admitted to hospital where he died on 03/07/2006. The complainant filed a claim with all documents. However, the claim was repudiated by the O.P. vide letter dated 21/11/2006 on the ground that the DLA had suppressed the information about his heart disease while taking the policy. She filed complaint on 13/12/2006 before the Insurance Ombudsman. However, her claim was dismissed on 11/10/2007. Hence, she filed consumer complaint claiming deficiency in service due to repudiation of her claim with a prayer to provide her the claim of the policies with all benefits with interest at the rate of 12% with Rs. 10,000/- for physical and mental harassment with cost of the complaint.
3. On notice the O.P. Nos. 1&2 appeared. However, the O.P.No. 3 remained absent in spite of notice and hence was declared exparte.
4. The O.P.Nos. 1&2 countered the complaint admitting that the DLA had taken the policies. However, they submitted that the DLA was suffering with a heart disease prior to the taking of the policy which he suppressed while filing the proposal form of non medical policy. He was suffering with the disease from the year 2000. It has amply come to the notice from the opinion and treatment papers of Dr. Arneja and Arneja Heart Institute. As the DLA suppressed the material information the claim was repudiated as per the conditions of the policy and hence they denied any deficiency in service on their part with a request to dismiss the complaint.
5. The learned Forum perused the evidence and heard the parties and found that the DLA was suffering from Dialated Cardio Myopathy (DCM) as per the certificate given by Arneja Heart Institute which stated that the DLA was suffering with DCM from the year 2000 and was on medication. The DLA took the policies on, one date, in December-2003. Thus, the Forum held that the DLA suppressed the information while filing the proposal form. The Insurance Ombudsman also considered the issue properly and thus rejected the claim. Hence, holding that the repudiation of claim by the O.P. to be appropriate in view of the suppression of material. The Learned Forum passed the order supra.
6. Aggrieved against the order the complainant filed this appeal through advocate Shri Bawane & hence, is called as appellant. Advocate Shri Gawande appeared on behalf of the original O.P. Nos. 1&2/now respondent Nos. 1&2. The original O.P.No.3 is referred as respondent No. 3 who remained absent in spite of service of notice. Hence, is declared exparte.
7. The advocate for the appellant submitted that the respondent had given the policy after proper medical examination. Also the respondent while repudiating the claim on the ground of suppression of medical history did not file the affidavit of the medical officer of the Arneja Heart Institute where the DLA died. He relied on the following judgments.
i. National Commission Judgment passed in LIC Vs. Smt. Suresh published at 2012(1) CPR 391 (NC). Wherein the Hon’ble Commission held that the disentitlement under the policy on the ground of concealment or suppression would arise only if there is evidence to show that the insured had undergone hospitalization or treatment for the disease in the near proximity when the insurance policy was obtained and chosen not to disclose it.
ii. National Commission Judgment passed in LIC Vs. Priya Sharma published at IV (2012) CPJ 646 (NC). Wherein it is held that onus to prove that the insured was suffering from pre existing disease is on the petitioner/insurance compnay.
iii. National Commission Judgment passed in United India Insurance Co. Ltd. Vs. Veena Bhardwaj and another published at IV (2012) CPJ 782 (NC). Wherein it is held that insurance company must prove suppression by producing cogent and plausible evidence.
iv. National Commission Judgment passed in Met Life India Insurance Co. Ltd. Vs. Alturi Sri Venkateshwara Rao published at IV (2012) CPJ 831(NC). Wherein it is held that the statement of insurance ombudsmen cannot be made the only ground for suppression of ailment. Cogent and plausible evidence for repudiation is necessary.
v. National Commission Judgment passed in Bajaj Allianz General Insurance Co. Ltd. Vs. Valsa Jose published at IV (2012) CPJ 839 (NC). Wherein It is held that discharged summary described only medicine taken by the respondent and hyper tension is a life style disease easily controled with conservative medicine. Repudiation is not justified.
vi. National Commission Judgment passed in Bajaj Allianz General Insurance Co. vs. Kamalkumar Ratera published at III (2012) CPJ 599 (NC). Wherein it is held that it was obligatory upon the insurance company to prove that the medical condition or complication for which claim has been prepared were preexisting on the date of commencement of policy.
vii. Rajasthan Consumer Commission order passed in LIC Vs. Dali Kunwar Dewada published at (2012) CPJ 378. Wherein it is held that once accepting the premium and entering in agreement without verifying the facts, insurance company cannot wriggle out of liability merely saying that contract was made by misrepresentation and concealment.
viii. National Commission Judgment passed in Life Insurance Corporation of India Vs. Sajida Begam published at III(2007) CPJ 319 (NC). Wherein it is held that when examined and certified, insured is keeping good health at the date of issuance of policy, and failure to detect alleged conditions at the time of giving policy, the repudiation order is not justified.
ix. National Commission Judgment passed in New India Insurance Co. Ltd. Vs. Rajkumar Chuchra published at III (2007) CPJ 320 (NC). Wherein it is held that when there is no evidence to prove that insured suffered from any disease or received treatment before purchase of policy, Hence, the impugned order is upheld.
x. Andhra Pradesh Commission Judgment passed between LIC of India Vs. Shekhar Babu published at III (2007) CPJ 278. It is held that to prove repudiation, suppressed material ought to be disclosed and the insured must have played fraud . Burden of proving of suppression is on the insurance company & hence, the claim repudiated wrongly.
xi. Haryana Consumer Commission order passed in LIC Vs. Anandkumar published at II (2007) CPJ 211. Wherein it is held that medical report cannot fix the period that the deceased suffered from alleged disease before taking policy. Insurer is liable.
xii. Chhatisgad Commission order passed in LIC Vs. Rani Kaur published at I (2005) CPJ 547. It is held that company failed in its burden to prove suppression of material fact. Hence, Forum order is upheld.
xiii. Chhatisgad Commission passed in LIC Vs. Radhika Madhuriya published at IV (2004) CPJ 131. Wherein for suppression of material fact burden to prove existence and knowledge of disease at the time of policy lies heavily on insurer. The photocopies of medical certificate is not relied by the Forum. Hence, deficiency in service is proved.
xiv. Union Territory Commission order passed in LIC Vs. Jasbir Kaur published at I (2005) CPJ 781. Wherein it is held that the repudiation of claim solely based on history recorded on hospital, record is arbitrary and illegal. Deficiency in service is proved.
xv. Uttar Pradesh Commission order passed in LIC of India Vs. Smt. Sudha Devi published at III(2001) CPJ 588. Wherein it is held that no cogent evidence is produced to prove that the deceased knew about the disease. Material suppression of facts is not established. Hence, insurance company is liable to pay insured amount along with interest.
8. The advocate for the appellant also raised the ground that the DLA was examined by the respondent’s doctor . There is no affidavit of doctor certifying the existence of disease & no evidence adduced to prove that the DLA was suffering with the disease and had taken treatment and was aware that he is suppressing & that the fact which are material to decide the policy and suppressed with intention of fraud. Only last certificate from the hospital is presented with no evidence of treatment before taking the policy. Hence, repudiation is unjustifiable. Therefore he requested that the order of the learned Forum may be set aside being passed without application of mind.
9. The advocate of the respondent relied on the following judgments.
a. Supreme Court Judgment passed in Satwant Kumar Sandhu Vs. New India Assurance Co. Ltd. dated 10/07/2009 S.C. Wherein the Hon’ble Apex Court held that when the insured was suffering from diabetes and chronic renal failure and stated to be on regular haemodialysis when he reported sound health to the questions of the insurer. He suppressed material on record & hence, the claim of the appellant is found to be fraudulent. Hence, the appeal stands dismissed.
b. National Commission Judgment passed in LIC Vs. Smt. Kusum Patro in Revision Petition No. 1585/2011 dated 19/03/2012. Wherein the Hon’ble National Commission held that the principle underlying the doctrine of disclosure and the rule of good faith obliged the proposer to answer every question put to him with complete honesty. Honesty implies truthfulness. Further the National Commission held that if the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering question in the proposal form. Needless to emphasis that any in accurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering in to a contract of insurance. Hence, the revision petition is allowed.
9. The advocate for the respondent therefore submitted that the DLA had taken three policies, which were non medical polices meaning no medical examination was performed before providing the policy which was based only on the truthful information to be provided by the insurer. The DLA was recorded by the Arneja Heart Institute to be a known case of Cardiomyopathy (CMP) which is a serious disease. The doctor has claimed the history of deceased from the year 2000. When the certificate given by the institute of repute is on record no necessity to file the affidavit. Also the detail of treatment at the time of his admission are on record. Dr. Tolani who referred him to Arneja Heart Institute referred that DLA is a patient of CMP for hospitalization and further evaluation. If these certificate are seen it would prove that the DLA suffered with CMP who suppressed the information and hence the repudiation is correct which needs to be confirmed.
10. We considered the contentions of both the parties. We find that the policies in question are taken in the year 2004 and are non medical policies which are given only on the information of health provided by the insurer.
11. We further find that the respondent repudiated the claim on the ground of the certificate issued by Arneja Hospital dated 25/09/2006 which says that the DLA was suffering with Dialated Cardio Myopathy (DCM) from the year 2000. However, we find that the respondent has not submitted any clear document of actual treatment provided to DLA by any hospital or a doctor before proposal for policies was submitted by the DLA. The respondent has not explained why documents of prior treatment were not collected from any hospital & produced before the Forum to prove pre-existing disease & its knowledge by the DLA.
12. To hold that the DLA while taking the policy has suppressed the material information with the intention to deprive the respondent from knowing material information to come to the conclusion as to whether to provide the policy or not, it is necessary that it should prove that the proposar was well aware of the suppressed material like disease and had suppressed it with the intention to commit the fraud so as to breach the conditions of the policy. We find no material on record brought by the respondent to show that the DLA husband of the appellant was aware of what he was suffering with and had suppressed the information with the intention to suppress it. The various judgments cited by the appellant point towards the very important aspect as discussed above that it is positive responsibility of the respondent to collect the evidence prior to the date of proposal of the policy to prove that the suppression is with known intention. Only a certificate after the death of the DLA from the hospital is collected & produced by respondent which mentions cryptically that the DLA was known patient of CMP. It is not sufficient to hold that the DLA was aware or was suffering with the disease prior to his obtaining policies from respondent and hence, suppressed the material fact.
13. We find here that the policies are taken in the year 2003 whereas the death was occurred on 03/07/2006 which certainly does not create any relation with the declaration of physical health by DLA & his death. We therefore find that the repudiation of the claim by the respondent does not stand on the sound grounds as are illustrated and provided by the catena of judgments held by the National Commission. We therefore find that the repudiation is not justifiable.
14. We find that the learned Forum did not visualize the requirement of evidence to hold the suppression to be intentional and passed the order only on the presumption based on the uncorroborated certificate issued by Arneja Institution after the death of the DLA. The order being not based on proper evaluation of material deserves to be set aside.
15. We therefore hold that there is no cogent evidence to show that the DLA was suffering from any pre-existing disease and that he was aware of his disease at the time of taking the policies and hence, it cannot be said that he fraudulently suppressed material facts for obtaining policies. Thus the claim of the policies held by him deserves to be paid to with all the interest that has accrued upon it. We therefore, direct the respondent to provide the claim of the policies held by the DLA from the date of the complaint i.e. 18/10/2008 till final payment with interest at the rate of 9% p.a. and to provide the compensation of Rs. 5,000/- for agony and Rs. 5,000/- as cost. Hence, the order below.
ORDER
i. The appeal is partly allowed.
ii. The order of the District Forum is set aside.
iii. The respondent Nos. 1&2 together or severally to provide the claim of the three policies Nos. 290744,290751 & 290762 of Rs. 1,00,000/- each with interest at the rate of 9% p.a. from the date of the complaint ie. From 18/10/2008 till final disbursement to the appellant.
iv. Respondent Nos. 1&2 together or severally to provide compensation of Rs. 5,000/- for physical and mental harassment and Rs. 5,000/- as cost of appeal & complaint to appellant.
v. The order of the Commission be complied in the span of 30 days from the date of receipt of it.
v. Copy of the order be provided to both the parties, free of cost.