District Consumer Disputes Redressal Forum, Tarn Taran (Punjab)
Consumer Complaint No.: 13 of 2015
Date of Institution : 16.2.2015
Date of Decision : 1.10.2015
- Smt. Rajwant Kaur widow of Hardev Singh,
- Iqbal Singh son of Hardev Singh
- Rashpal Singh son of Hardev Singh, all residents of Raniwallah, Tehsil: Khadoor Sahib, District Tarn Taran.
- Mandeep Kaur daughter of Hardev Singh wife of Kanwaljit Singh, resident of village: Sarhali Khurd, Tehsil: Patti, District Tarn Taran.
…Complainants
Versus
- HDFC Standard Life Insurance Company Limited, Branch Office Ist Floor Plot No. 1/197, Above Canara Bank, Jandiala Road, Tarn Taran through is Manager.
- HDFC Standard Life Insurance Company Ltd. Registered Office, Lodha Excelus, 13th Floor, Apollo Mills Compound, N.M. Joshi Marg, Maha Lakshmi, Mumbai 400 011
…Opposite Parties.
Complaint Under Section 12 & 13 of the Consumer Protection Act, 1986.
Present:
For the complainants Sh. Bikram Arora Advocate
For the Opposite parties Sh. Mohan Arora Advocate
Quorum: Sh. J.S.Khushdil, President.
Sh. R.D. Sharma Member.
Smt. Jaswinder Kaur, Member
(Sh J S Khushdil, President)
- Smt.Rajwant Kaur and others have filed this complaint under Section 12 and 13 of the Consumer Protection Act 1986 (herein-after called as ‘the Act’) against HDFC Standard Life Insurance Company Limited, Branch Office, Ist Floor Plot No. 1/197, Above Canara Bank, Jandiala Road, Tarn Taran through is Manager and another (herein-after called as ‘Opposite Parties- Insurance Company’) supported by various documents leveling allegations of deficiency of service on the part of the opposite parties.
2 As per the complainants version, Hardev Singh husband of complainant No.1 and father of complainants No.2 to 4 was having account with HDFC Bank Limited at Branch Chohla Sahib and at the instance of Branch Manager of Branch Chohla Sahib, the deceased Hardev Singh obtained a Life Insurance Policy with Opposite Parties which is the subsidiary to HDFC Bank Limited. Hardev Singh paid first installment of Rs.50,000/- to Opposite Parties vide cheque No. 63 dated 18.9.2014 drawn on HDFC Bank Limited as initial deposit. The Opposite Parties issued receipt bearing No.C2295412 bearing policy No.17099291(Ex. C.3). Said Hardev Singh was thus, insured for his life for an amount of Rs.5,50,000/-. Therefore, he was consumer of the Opposite Parties. The present complaint has been filed by the complainants being his first class legal heirs. As per the rules, the Opposite Parties medically examined Hardev Singh through its doctors and after passing the said medical examination, the proposal form was got signed by the officials of the Opposite Parties from Hardev Singh and receipt bearing policy number was issued to Hardev Singh deceased. Hardev Singh died natural death on 1.10.2014. He was neither suffering from any previous illness nor was he having any previous medical record. After the death of Hardev Singh, Opposite Parties were informed about the same by the complainants. The complainants provided all the documents as demanded by the Opposite Parties. On 1.12.2014, the Opposite Parties had deposited a sum of Rs.50,436/- in the account of complainant No.1 Rajwant Kaur bearing No.50100066369096. It was alleged that on enquiry, the complainants came to know that the claim of Hardev Singh has been cancelled and initial premium amount was refunded in the account of complainant No. 1 Rajwant Kaur. Therefore, the complainants approached the opposite parties several times with a request to reimburse the claim of the insurance policy which was obtained by Hardev Singh insured from them during his life time. It was alleged that opposite party No. 1 took the original insurance policy by giving her false assurance that she would get the claim of
insurance policy for a sum of Rs. 5,00,000/- in addition to Rs. 50,000/- already deposited and the complainant No. 1 in good faith handed over the original policy to opposite party No. 1. It was pleaded that all the efforts of the complainant to get insurance amount failed and ultimately the opposite party vide written reply dated 26.12.2014 refused to admit the claim of the complainants on the ground that Hardev Singh did not inform them regarding the previous illness at the time of purchasing the policy in question. It was again pleaded that at the time of issuance of the policy Hardev Singh was got medically examined by opposite parties through their own doctors. It was alleged that opposite parties are guilty of fault, imperfection, abort coming and inadequacy in the quality, nature and manner of performance of service. The cause of action accrued to the complainants on 18.9.2014 when insurance policy was taken by Hardev Singh and on 1.10.2014 when Hardev Singh died and finally when opposite parties refused to make the payment of the claim amount to the complainants. In all the complainants have claimed the following relief:-
(A) To pay sum assured Rs. 5,00,000/- in respect of life insurance policy Number 17099291 dated 18.9.2014 alongwith interest at the rate of 18% per annum to the complainants
(B) To pay Rs. 20,000/- as compensation on account of mental and physical harassment caused to the complainants.
(C) To pay Rs. 10,000/- as litigation expenses
3 Notice of this complaint was issued to the opposite parties which appeared through counsel Sh.Mohan Arora Advocate and filed joint written version wherein various preliminary objections have been taken inter alia that complaint is not maintainable; that no cause of action accrued in favour of complainants; that the complainants have created a false story in their complaint; that the present complaint is not maintainable as no compliance under Section 12(1)(C) of the Act has been made. It was averred that the aforesaid insurance policy is unit linked policy whereby the investment is made through share market/ speculative transaction and main motive for investment is for profit and gains and the said policy has been purchased by Hardev Singh on line; that the life insured had signed the most important documents on 18.9.2014 wherein it has been clearly mentioned that terms of the policy is 5 years and annual premium was to the tune of Rs. 50,000/- and sum assured is Rs.5,00,000/-. On 1.10.2014 Hardev Singh died and the complainants being nominee of Hardev Singh submitted death claim to opposite parties. Investigation was got done and it was found that life assured was suffering from Ca Penis (Cancer) also known as Penile Carcinoma prior to filing of the electronic proposal form and policy issuance. He had also taken treatment for the said disease and also undergone surgical operation at Mohan Dai Oswal Cancer Treatment Research Foundation, Ludhiana bearing CR No.415651 in the year 2008 and he was also a follow up patient upto 2010. The deceased concealed the information regarding the said disease at the time of applying for the insurance policy. He was suffering from pre existing disease and has concealed the material information viz-a-viz in the proposal form, detail of which is mentioned in para No.10 of the written reply. It was pleaded that the claim of the complainants has been rightly repudiated. It was also pleaded that principles of utmost good faith which are binding on the part of both the parties i.e.insurer and the insured who are expressly bound to disclose all relevant material facts pertaining to the contract. Opposite Parties have also pleaded that as per section 45 of the Insurance Act, 1938 that the Opposite Parties were not under any obligation to pay even the fund value of the policy as the deceased has obtained the policy by misrepresentation and concealment of material facts regarding his health, but still the Opposite Parties had deposited a sum of Rs.50,436/- on account of unit fund value to the complainants which had been credited in the bank account of the complainants as per NEFT facility chosen by the complainant No.1. Preliminary objection has also been taken that the disputed questions of facts are involved in the present complaint which can only be decided by the Civil Court, therefore, the present complaint is not maintainable. It was also alleged that the life assured had died due to Ca Penis (Cancer), but the concocted version has been prepared by the complainants. On merits, the identical plea has been taken. It was pleaded that the medical examination is general medical examination and it does not absolve the life to be insured to disclose the illness, treatment being taken by him prior to the submission of the proposal form and issuance of the policy. The deceased filled in the proposal form online on 18.9.2014 for purchasing HDFC SL Crest Policy and the policy in question i.e. policy No.17099291 dated 25.9.2014 was issued. It was pleaded that the insurance policy is Unit Linked Policy whereby the investment is made through share market/ speculative transactions and main motive for investment is for profit and gains. It was alleged that the deceased has suppressed the material information regarding his pre existing diseases and life insured was taking the treatment from Mohan Dai Oswal Memorial Hospital, Ludhiana. Death of Hardev Singh is admitted. It was pleaded that a sum of Rs.50,436/- was paid to the complainants as per the terms and conditions of the policy being the Unit Fund Value. It was also pleaded that the Opposite Parties got conducted the investigation and in the investigation, it was revealed that the DLA concealed the material information regarding his health in the proposal/ application for insurance, therefore, the Opposite Parties have no other alternative except to repudiate the claim of the complainants. Mere medical examination conducted at the time of issuance of the policy does not authorize the complainants to receive the death claim. The Opposite Parties- Insurance Company have mentioned a number of judicial pronouncements in its written version (which were not required to be mentioned). In this way, the allegations contained in the complaint were denied being wrong and false and finally prayed for dismissal of the complaint.
4 The complainants in order to substantiate their claim tendered in to evidence duly sworn affidavit of Iqbal Singh one of the complainants Ex. C.1 alongwith following documents.
Ex. C.2 Self attested copy of Bank Statement
Ex. C.3 Self attested copy of Premium Receipt
Ex. C.4 Self attested copy of Letter dated
(also Ex. OP1,2/11) 26.12.2014 of H.D.F.C. Life addressed to Rajwant Kaur complainant vide which the claim was repudiated.
Ex. C.5 Self attested copy of letter dated 10.1.2015
sent to complainants regarding conformation of payment processed i.e. Rs.50,436.09 Paise.
Ex. C.6 Self attested copy of statement of death claim.
Ex. C.7 Self attested copy of doctor certificate.
Ex. C.8 Self attested copy of intimation of death claim.
Ex. C.9 Self attested copy of death certificate showing the death of Hardev Singh on 1.10.2014.
Ex. C.10 Self attested copy of certificate of Dhillon Hospital.
and closed the evidence on behalf of complainants.
5 On the other hand, to rebut the evidence of the complainants, the Opposite Parties- Insurance Company have tendered in to evidence affidavit of Ms. Amit Khanna Associate Manager Legal Ex. OPs 1, 2/1 alongwith following document
Ex.OP1,2/2 Self attested copy of authority letter
dated 24.9.2013
Ex.OP1,2/3 Self attested copy of policy detail
Ex.OP1,2/4 Self attested copy of policy dated 25.9.2014,
Ex.OP1,2/5 Self attested copy of proposal Form
dated 18.9.2014
Ex.OP1,2/6 Self attested copy of letter dated 18.9.2014
Ex.OP1,2/7 Self attested copy of certificate dated
(Also Ex. C-10) 4.11.2014
Ex.OP1,2/8 Self attested copy of medical record of
Mohan Dai Hospital (11 pages),
Ex.OP1,2/9 Self attested copy of medical article
Ex.OP1,2/10 Self attested copy of affidavit of investigator dated 16.12.2014
Ex.OP1,2/11 Self attested copy of letter dated
(Also Ex. C-4) 26.12.2014 vide which the case for insurance was repudiated.
Ex.OP1,2/12 Self attested copy of letter dated 10.1.2015
(Also Ex. C-5)
and closed the evidence.
6 We have heard the ld counsel for the complainants as well as Opposite parties and also gone through the written arguments filed by the parties and also perused the evidence produced on record by both the parties with the assistance of ld. counsel for the parties.
7 Sh Bikram Arora Advocate ld. counsel for the complainants has made submissions by highlighting the averments made in the complaint and also referred to the identical evidence both oral as well as documentary mentioned supra. It was submitted that the Opposite Parties- Insurance Company had illegally repudiated the claim of the complainants mainly on the alleged investigation done by opposite Parties- Insurance Company that Hardev Singh, DLA has not informed regarding his previous illness at the time of purchasing the policy, therefore, the present complaint was filed. It was argued that the complainants have claimed an amount of Rs.5,50,000/- being the insured amount against policy No.17099291 dated 18.9.2014 in favour of Hardev Singh since deceased. It was submitted that the complainants version, Hardev Singh had deposited Rs.50,000/- with Opposite Parties vide cheque No. 63 dated 18.9.2014 for which the Opposite Parties issued receipt bearing No.C2295412 (Ex.C3). It was contended that the claim of the complainants has been repudiated on flimsy grounds though Hardev Singh had deposited Rs.50,000/- the first installment towards the above said insurance policy. He neither suffering from any disease nor he had concealed any material information from the insurance company at the time of issuance of the policy. It was submitted that Hardev Singh was medically examined by the doctors of the Opposite Parties at the time of issuance of the insurance policy as well as at the time of filling up the proposal form. He was medically fit to obtain the insurance policy. It was also argued that Hardev Singh, DLA died natural death and the claim was lodged by the complainants being his first class legal heirs while the Opposite Parties have repudiated the claim of the complainants on flimsy ground. It was also argued that the Opposite Parties have not denied either the receipt of Rs.50,000/- towards first premium installment or issuance of the insurance policy or death of Hardev Singh or his medical examination. It was submitted that nothing prevented the Opposite Parties to medically examine said Hardev Singh thoroughly or in any manner whatsoever its satisfaction before the issuance of the policy. It was argued that the investigation conducted after the death of Hardev Singh, DLA was just to frustrate the lawful claim of the complainants. No record has been got proved by the Opposite Parties with regard to his previous ailment which was otherwise relating to the year 2008. The Opposite Parties have failed to prove on record despite sufficient opportunities given by this Forum to the Opposite Parties to examine any doctor of Mohan Dai Oswal Memorial Hospital, Ludhiana who had allegedly treated Hardev Singh, DLA. Now, the Opposite Parties are backed out to discharge their lawful obligation though the Opposite Parties have taken this plea that the contract of insurance is based on principles of utmost good faith. It was submitted that Opposite Parties were at liberty to verify anything within the stipulated period and to cancel the insurance policy issued in favour of Hardev Singh. It was submitted that complainants being the first class legal heirs have rightly claimed the insurance claim and the complaint is maintainable. The procedure adopted by the Forum is summary in nature, therefore, no complicated question of law and facts are involved. As such, this Forum is competent to decide this complaint. It was prayed to accept the complaint and to give the relief claimed by the claimants.
8. On the other hand, Ld. Counsel for opposite parties Sh. Mohan Arora Advocate argued that the opposite parties have rightly repudiated the claim of the complainants because Hardev Singh DLA has suppressed material facts regarding the preexisting disease. The opposite parites in good faith had issued the policy in question. Sh. Mohan Arora Advocate argued that Hardev Singh has deposited Rs. 50,000/- being first installment against receipt issued by the Opposite parties. The fact regarding the previous ailment and treatment of Hardev Singh came on the surface only when the opposite parties got conducted the investigation. During the investigation, it was revealed that Hardev Singh was under treatment at Mohan Dai Oswal Cancer Treatment Research Foundation , Ludhiana. The reference was made to the relevant treatment record from Mohan Dai Oswal Cancer Treatment Research Foundation, Ludhiana from where Hardev Singh took treatment. The Ld. Counsel for the opposite parties has referred to the relevant record to strengthen his contention. It was submitted that in this way it is crystal clear on the file that Hardev Singh had suppressed the facts of his pre existing ailment i.e. Ca Penis (Cancer) also known as Penile Carcinoma . The Ld counsel for the opposite parties has also made the reference to the proposal form where Hardev Singh has denied the previous disease and its treatment from above mentioned Hospital. It was submitted that Hardev Singh was under treatment in Mohan Dai Oswal Cancer Treatment Research Foundation, Ludhiana as per CR. No.415651 in the year 2008 and also remained on follow up treatment till 2010, meaning thereby, he was under treatment immediately before 5 years from the date of issuance of policy. On this point, Ld. Counsel for the opposite parties- Insurance company has placed reliance upon the judicial pronouncements: Maya Devi Vs. LIC of India 2011(3) CPJ (NC) 43, Nikita Goyal Vs Life Insurance Corporation of India in First Appeal No. 78 of 2013 decided on 15.9.2014 by the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh
9 It was contended by Ld. Counsel for the opposite parties that it was not obligatory on the part of the opposite parties to refund the amount of Rs. 50,436/-, even then, the opposite parties in good faith have deposited the said amount in the account of complainant Rajwant Kaur.
10 It was further contended by Ld. Counsel for the opposite parties that the policy was unit linked policy, where the investment is made through share market/ speculative transaction, the main object of which is investment for profit and gains. Ld. Counsel for the opposite parties submitted that in this way this complaint is not maintainable because Hardev Singh was not the consumer of the opposite parties when he was not the consumer and the complaint is not maintainable, then, the question of making payment of claimed amount did not arise. On this point, Ld. Counsel for the opposite parties- Insurance company has placed reliance upon the judicial pronouncements: Kashmir Singh Vs. HDFC Standard Life, First Appeal No. 728 of 2015 decided on 17.7.2015 by the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh, Jatinder Singh Vs. Aviva Life in First Appeal No. 1116 of 2011 decided on 16.4.2015 by the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh, Ram Lal Aggarwalla Vs Bajaj Allianz Life Insurance Co. Ltd. in Revision Petition No. 658 of 2012 decided on 23.4.2013 by the Hon’ble National Commission New Delhi, Paramjit Kaur Vs Met Life India Insurance Co. Ltd. in First Appeal No. 1050 of 2010 decided on 16.4.2015 by the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh, Metlife India Insurance Co. Vs Gurjit Singh in First Appeal No. 407 of 2011 decided on 22.9.2014 by the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh
11 Ld. Counsel for the opposite parties then contended that complicated question of law and facts are involved in the present case. As such, this Forum cannot decide this complaint in summary manner. It is submitted that case be relegated to the Civil court for proper adjudication. On this point, Ld. Counsel for the opposite parties- Insurance company has placed reliance upon the judicial pronouncements: Oriental Insurance Company Ltd. Vs Munimahesh Patel 2006(2) CPC 668 by Hon’ble Supreme Court of India, Daljit Singh Dogra Vs ING Vysya Bank Ltd. and Others Consumer complaint No. 16 of 2007 decided on 29.1.2009 by the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh, Bajaj Allianz LIC Vs. Bhupinder Singh in First Appeal No. 297 of 2011 decided on 9.1.2012 by the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh,
The ld. Counsel for the opposite parties has prayed to dismiss the complaint.
12 We have taken in to consideration the contentions and rival contentions of both the parties in the light of record.
10 Before proceedings further in to the matter it would be just and appropriate to discuss judicial pronouncements produced by the opposite parties.
11 In case Maya Devi Vs LIC of India (Supra), deceased husband of the petitioner was diabetic for the last 10 years. In this case, the repudiation of the claim was held justified because of concealment of pre existing disease. Nikita Goyal Vs Life Insurance Corporation of India (Supra) is also relating to the suppression of material facts qua pre existing disease. In this case the Hon’ble State Commission dismissed the appeal of Nikita Goyal. The other authorities are related to speculation and referred the matter to Civil court and these authorities are not applicable to the facts of the present case.
12 We have also gone through some other 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.
13. In case National Insurance Company Limited and Another Vs Balwinder Singh 2012(1) CLT 34, the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh held that the appellants have not produced any evidence to prove that before the purchase of policy the insured/ respondent had taken any treatment from any doctor or any hospital and the insured/ respondent had the knowledge that he was suffering from the heart disease. This pronouncement was based upon the decision of the Hon’ble Apex Court in case titled LIC Vs GM Channabasamna, 1991(1) SCC 357 and of the Hon’ble National Commission in case titled LIC Vs Joginder Kaur and others, 2005(2) CLT 229.
14 In case Kotak Mohindra Old Mutual Life Insurance Ltd. Vs Chander Isarsingh Dhansinghani & anr 2013(3) CLT 186, the Hon’ble State Commission Ahemdabad held that Doctor certificate without any affidavit of the doctor in support cannot be basis for repudiation of claim. It was held that the onus was upon the appellant to prove that the insured suppressed material facts. In this pronouncement citations Smt. Sunita Agarwal Vs LIC of India, III (2005) CPJ 446 = 2005 CTJ 874 relying on Supreme Court Judgment in case of Mithoolal Nayak, AIR 1962 SC 814, the Hon’ble MP State Commission were discussed.
15 In case Tarlok Chand Khanna Vs United India Insurance Co. Ltd. 2012(2) CLT 617(NC) wherein the Hon’ble National Commission held that onus to prove was on the respondent/ insurance company regarding pre existing disease. In that case insurance company repudiated the claim on the ground that replacement of knees cannot occur within days or months and infact takes years for the keens to degenerate to a condition where total replacement is medically advised. In this case, Tarlok Chand Khanna obtained a mediclaim insurance policy from the respondent/ Insurance company valid from 1.1.2002 to 31.12.2002 for a sum of Rs. 1,50,000/- for himself and his wife Smt. Kurana Khanna. Smt. Karuna Khanna developed pain in her knees and on 15.9.2002 she underwent surgery for knees replacement of her both knees at a total cost of Rs. 1,78,945/-. She died due to sudden Cardiac arrest in the hospital on 29.9.2002. The complaint to claim the expenses was dismissed by the District Forum on the ground that there is no affidavit of any doctor of Nayyar Hospital nor there is any death certificate issued by Cardiologist showing cause of death of the wife of the complainant as cardiac arrest on 29.9.2002. The Hon’ble State Commission also dismissed the appeal. Sh. Updip Singh, ld. counsel for revisionist contended before the Hon’ble National Commission that the onus to prove that she had a pre-existing disease was on the respondent who failed to file any expert medical or credible evidence in support of its case. The counsel for petitioner relied upon a case titled National Insurance Co. Ltd. Vs Raj Narain, 1(2008)CPJ 501(NC), wherein Hon’ble National Commission had observed as follows:-
“Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Company relies on their Clause 4.1 of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy.” In view of the above facts, the Fora below erred in saying that claim was rightly repudiated.
In a nutshell it was held that onus was on the insurance company to prove that insured was suffering from pre-existing disease at the time of purchase of policy.
16 In case United India Insurance Company Vs Safiya 2013(3) CLT 195, identical view was taken by Hon’ble Kerala State consumer Disputes Redressal Commission, Thruvananthapuram
17 We have also gone through some other authorities wherein the material facts were suppressed by the insured which may be cited as in case M/s Birla Sun Life Insurance Co. Vs Richa Goel in Revision Petition No. 1166 of 2010 (NC) decided on 13.1.2015, Ashok Goel took the insurance policy from M/s Birla Sunlife Insurance Company Ltd. on 28.2.2005 but died on 20.7.2005 i.e. with five months after obtaining the Insurance Policy. His claim was repudiated on the ground that insured was suffering from pre existing disease. In that case, the complaint was allowed by the District Forum on the ground that the penal doctors of insurance company had examined him. In that case Hon’ble National Commission justified the repudiation.
18 In case Birla Sun Life Insurance Co. Ltd. Vs Manjeet in Revision Petition No. 1139 of 2014 (NC) decided on 23.2.2015, the life assured died on 1.11.2009. The insurance company repudiated the claim on the ground that he concealed the material facts of his suffering from diabetes mellitus at the time of submission of the proposal form. The District Form partly allowed the complaint. However, the Hon’ble State Commission dismissed the appeal preferred by the Insurance Company. The insurance company argued before the Hon’ble National Commission that the insured has concealed the fact of his being diabetes for the last 15 years. The claimant side had contended that the insurance proposal was accepted by the petitioner / opposite party after the medical examination of the life assured. The Hon’ble State Commission was of the view that the Sugar level was tested at the time of proposal form and it was found within range. The Hon’ble National Commission was of the view that the view of Hon’ble State Commission was fallacious because even in a case of person suffering from diabetes, the sugar level can be kept under control by regulating the diet and taking medicine oral or injectable. Therefore, the sugar level test by itself is not an assurance that the person is not suffering from diabetes. The Hon’ble National Commission held that the insured had concealed the material facts.
19 In case The Chairman Birla Sun Life Insurance Co. Ltd. Vs Smt. Asha Revision Petition No. 930 of 2008 (NC) decided on 5.8.2014, the insured died on 21.2.2005 due to Hypertension and Diabetes. The complainant lodged the claim which was rejected by the opposite party on the ground of suppression of material facts in respect of heath of insured. The Hon’ble National Commission held that the deceased had suppressed the material facts of his disease in the proposal form.
20 In case Aviva Life Insurance Company India Ltd. Vs Mrs. Sween Goyal in Revision Petition 3053 of 2009 (NC) decided on 21.11.2014, Arun Kumar Goyal took a life insurance policy for a sum of Rs. 4,95,000/- on 26.2.2007 and paid one time premium of Rs. 99,000/- However, the maturity of policy was 26.2.2012 but he died on 30.11.2007. The insurance company repudiated the claim on the ground that he was diabetic for the last 10 years and was under insulin. The insured was also an Alcoholic for more than 5 years and had undergone medical treatment for the same at Silver Oaks Hospital 2 years back. District Forum allowed the complaint holding that there is no evidence that the insured was ever suffering from diabetes mellitus prior to taking the life insurance policy and based the finding of Life Insurance Corporation of India Vs Satinder Kaur, III (2008) CPJ 279. The Hon’ble U.T. State Commission had dismissed the appeal in limini holding that there was no material worth the name had been made available to point out that heart attack has any link with the consumption of alcoholic beverages. The Hon’ble National Commission, thereby held that the insured had suppressed material facts with regard to his health.
21 We have also gone through the ruling titled Birla Sun Life Insurance Company Ltd. Vs Kiran Prafull Bahadure 1(2015) CPJ 473 (NC) wherein the repudiation of claim was not held justified. In that case, the deceased husband of the complainant was suffering from Ischemic Heart Disease prior to his application for taking the insurance cover, whereas the husband of the complainant was died of natural death. The Hon’ble National Commission held that no evidence was produced by the insurance company that deceased was suffering from any heart disease since 10.2.2010. In that case the policy was taken on 19.5.2011 and deceased had deposited half yearly installment i.e. Rs. 15,000/- and died on 26.9.2011. Similar view was taken by the Hon’ble Chhattisgarh State Commission in case titled L.I.C. of India Vs Kanchan Thawait, wherein Hon’ble State Commission held that mere production of medical certificate is not sufficient to prove pre-existing disease.
22 We have also gone through the Judgment of Apex Court titled as BIHAR SCHOOL EXAMINATION BOARD vs. SURESH PRASAD SINHA” IV (2009) CPJ 34 (SC), where the Hon’ble Supreme Court of India has held that “It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.” So, keeping in view the supra judgment of Hon’ble Supreme Court of India, the rulings referred to by the Opposite Parties- Insurance Company which are on different facts, have no bearing to the facts of the present case because each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases and we respectfully of the view that rulings cited by the Opposite Parties- Insurance Company are not applicable to the facts of the present case.
23 We have considered the entire record in to consideration and the submissions of both the sides as well as ibid case law. In this case, there is no denial that insurance policy was issued in favour of Hardev Singh since deceased by the Opposite Parties on receipt of premium of Rs.50,000/- towards first installment. It is also admitted fact that the an amount of Rs. 50436/- was returned to the complainants. In the proposal form, Hardev Singh has denied about the previous ailment. As per the version of the Opposite Parties, he was under the treatment from Mohan Dai Oswal Cancer Treatment Research Foundation, Ludhiana bearing CR No.415651 in the year 2008 and he was also a follow up patient upto 2010, whereas the policy has been issued on 25.9.2014 i.e. after 5 years. It is also admitted fact that the DLA was medically examined, though the Opposite Parties have averred that it was a general medical examination and it does not absolve the life to be insured to disclose the illness, treatment being taken by him prior to the submission of the proposal form and issuance of the policy. Death of DLA Hardev Singh on 1.10.2014 also not denied. First installment as mentioned above was paid on 18.9.2014 (Ex.C3). Intimation regarding the death of Hardev Singh was also given to the Opposite Parties which is also not disputed fact.
24 The Opposite Parties have taken the plea that insurance policy in question is Unit Linked Policy whereby the investment is made through share market/ speculative transactions and main motive for investment is for profit and gains, therefore, the complaint is not maintainable as the complainants are not the consumer. We have considered this contention of the opposite parties and hold that the same is devoid of merits. The deceased Hardev Singh was a consumer who is now substituted by the present complainants being his first class legal heirs.
25 The other contention of ld. Counsel for the opposite parties is that complicated question of law and facts are involved in the present case, therefore, the matter is required to be relegated to Civil Court. This Forum is of the view that record placed on file is sufficient for the decision of this complaint without relegating the matter to the civil court. It is necessary to mention here that the procedure adopted by Consumer Fora is summary in nature. In the instant case, both the parties have produced sufficient evidence on the record and we do not find any complicated question of facts and law, therefore, we do not find any reason to relegate the matter to Civil Court. The objection as well as contention of ld. counsel for the Opposite Parties- Insurance Company is not tenable. Consequently, we proceed to decide this case on merits on the basis of evidence adduced by both the parties.
26 The Opposite Parties have got investigation after the death of Hardev Singh on 1.10.2014 to the affect that Hardev Singh, DLA was suffering from Ca Penis (Cancer) also known as Penile Carcinoma prior to filing the proposal form and policy issuance and he remained admitted and undergone surgical operation at Mohan Dai Oswal Cancer Treatment Research Foundation, Ludhiana bearing CR No.415651 in the year 2008 and he was also a follow up patient upto 2010, as such, Hardev Singh had concealed the fact about the previous ailment immediately before 5 years of the date of issuance of the insurance policy. It is pertinent to mention here that no doctor of Mohan Dai Oswal Cancer Treatment Research Foundation, Ludhiana has been examined to authenticate the medical treatment of Hardev Singh, DLA.
27 We have also taken into consideration all other points raised before us in oral as well as written arguments by both the sides. The medical examination of Hardev Singh at the time of issuance of the policy has not been denied. Only plea taken by the Opposite Parties is that DLA had not disclosed the material information regarding his illness at the time of issuance of the policy, but we fail to understand who had prevented the Opposite Parties- Insurance Company to get the insured thoroughly examined before issuance of the policy, after all, the insurance company was to incur huge liability. It was required from the Opposite Parties- Insurance Company to get the insured thoroughly examined and then to issue policy which it has not done. It appears that at that time the goal of the Opposite Parties- Insurance Company was only to fetch business and it had forgotten its liability part. It is pertinent to mention here that no doctor of Mohan Dai Oswal Cancer Treatment Research Foundation, Ludhiana has been examined to authenticate the medical treatment of Hardev Singh, DLA. The investigation which has now been done after the death of Hardev Singh, DLA should have been done at early stage before or at the time of issuance of the policy or within the stipulated period of 2 years which was justified in repudiating or rejecting the insurance policy, but it has not been done for the reasons best known to the Opposite Parties. Section 45 of the Insurance Act, 1938 would not come to any help to the opposite parties. The claimants have taken this specific plea that Hardev Singh died of natural death whereas the opposite parties have taken this plea that he died due to Ca Penis (Cancer) also known as Penile Carcinoma. As this Forum has already discussed that the opposite parties have not adduced any evidence to prove that Hardev Singh was suffering from the above said disease. Therefore, in the absence of any specific evidence, which was to be adduced by the opposite parties, natural inference is that Hardev Singh died of natural death. Moreover, if assumingly Hardev Singh was suffering from Ca Penis (Cancer) also known as Penile Carcinoma even then it was for the opposite parties to prove the nexus of that disease with the death of Hardev Singh. Nothing of this sought has come on the record. It is further notable point that the opposite parties have colleted the medical record from 2008 to 2010. As per death certificate Ex. C-9, Hardev Singh died on 1.10.2014. The Opposite parties have not made any effort to collect the record from the year 2010 to 2014 or the treatment record, if any of Hardev Singh at the time of his death or before his death. In this way, the opposite parties have failed to prove the nexus between so called disease Ca Penis (Cancer) also known as Penile Carcinoma and his death on 1.10.2014. The opposite parties have failed to convince this Forum that natural death falls in the exclusion clause of the policy. There is no evidence that any such exclusion clause was brought to the notice of the D.L.A.
28 As a sequel to our aforesaid detailed discussion, we accept this complaint and the Opposite Parties- Insurance Company are directed:-
i) To pay 5,00,000/- i.e. sum insured to the complainants alongwith interest @ 9% per annum from the date of filing this complaint till the date of this order.
ii) To pay a sum of Rs. 20,000/- being consolidated amount of compensation which includes counsel fee and litigation expenses.
(iii) Out of entire awarded amount 50% would go to complainant No. 1 Rajwant Kaur and remaining 50% would be shared by the remaining complainants equally.
29. The Opposite Parties- Insurance Company are directed to comply with this order within 60 days from the date of receipt of copy of this order, failing which the Opposite Parties- Insurance Company will pay interest @ 6% per annum on the principal amount of Rs. 5,00,000/- to the complainants from the date of this order till its realization. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Pronounced in open Forum.
Dated: 1.10.2015.
Sd/-
(J.S.Khushdil)
President
Sd/- Sd/-
(Jaswinder Kaur ) (R.D.Sharma)
Member Member
