| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.572 of 10-12-2015 Decided on 04-07-2017 1.Gurjit Kaur aged about 48 year widow of Balkaran Singh S/o Sukhdev Singh; 2.Kulwant Singh aged about 17 years minor son of Balkaran Singh; 3.Jashanpreet Kaur aged about 13 years minor daughter of Balkaran Singh. R/o Near Water Works, Village Kot Bhara, Tehsil Talwandi Sabo, District Bathinda, through their next friend mother Gurjit Kaur widow of Balkaran Singh S/o Sukhdev Singh. ........Complainants Versus 1.HDFC Standard Life Insurance Company Limited, 11th Floor, Lodha Excelus, Apollo Mill, Compound, N.M. Joshi Road, Maha Laxmi, Mumbai-400011, through its M.D. 2.HDFC Standard Life Insurance Company Limited, Branch office Gr.Floor 3038-A, Dalip Singh Walia Complex, Guru Kanshi Marg, NH-15 Bathinda. .......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh.M.P Singh Pahwa, President. Sh.Jarnail Singh, Member. Present:- For the complainants: Sh.H.S Dhanoa, Advocate. For opposite parties: Sh.Vinod Garg, Advocate. ORDER M.P Singh Pahwa, President The complainants Gurjit Kaur and others (here-in-after referred to as complainants) have filed this complaint through their next friend mother Gurjit Kaur U/s 12 of Consumer Protection Act, 1986 against opposite parties HDFC Standard Life Insurance Company Limited and Others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainants is that the husband of the complainant No.1 and father of the complainant No.2 namely Balkaran Singh purchased one life insurance policy from opposite parties on 1.8.2013 for sum assured of Rs.5,00,000/- as first premium. He disclosed all the material particulars to opposite parties. The officials of opposite parties obtained his signatures on various blank printed forms. Later on, he received the insurance policy bearing No.16219525 from opposite parties, which was issued on 13.9.2013. He deposited the requisite amount of Rs.50,000/- as first premium amount with opposite parties for the year 2013. It is alleged that unluckily, Balkaran Singh fell ill. He got admitted in Sidhu Hospital @ Dialysis Centre, Bathinda. Ultimately, he died on 30.3.2014. After his death, the complainant No.1 applied for the insurance claim with opposite parties on the basis of the insurance policy. She furnished the requisite formalities to opposite parties to honour the lawful claim of the complainants, but their claim was repudiated by opposite parties vide letter dated 2.2.2015 on the ground that from the investigation, it was established that the life assured was suffering from kidney disease prior to the policy insurance, which was not disclosed in the application dated 1.8.2013. It is further alleged that opposite parties have refunded an amount of Rs.50,000/- only to the complainant No.1, which was deposited by Balkaran Singh at the time of purchase of the policy as first premium. It is further alleged that the repudiation letter is totally illegal, null, void and not binding upon the rights of the complainants. The claim has been illegally repudiated on the basis of flimsy grounds. Balkaran Singh was not suffering from any disease of kidney prior to the date of obtaining the mentioned policy. He had never taken treatment for the same. He had suddenly fallen ill and ultimately, died. It is also alleged that opposite parties issued the policy in the name of Balkaran Singh after conducting his medical tests. As such, the complainants are not bound by alleging investigation conducted after submitting the insurance claim. Opposite parties can not escape from their liabilities to pay the amount of the insurance claim on account of death of Balkaran Singh. The complainants are entitled to the insurance claim amount on account of death of Balkaran Singh i.e. Rs.5,00,000/-. It is further case of the complainants that after receiving the impugned repudiation letter, they repeatedly requested apposite parties to admit their lawful claim and to make payment of insurance claim amount, but to no effect. On this backdrop of facts, the complainants have alleged deficiency in service on the part of opposite parties. They have claimed compensation to the tune of Rs.1 lakh on account of mental tension and botheration etc.; Rs.11,000/- as cost of litigation and insurance claim of Rs.5 lakhs. Hence, this complaint. Upon notice, opposite parties appeared through their counsel and contested the complaint by filing their joint written version. In the written version, opposite parties have raised the legal objections that the intricate questions of law and facts are involved in this complaint, which require voluminous documents and evidence for determination. It is not possible in the summary procedure under 'Act'. The appropriate remedy, if any, lies only in the civil court. The complainants have concealed the material facts and documents from this Forum and opposite parties. They have concealed the fact that the life assured deceased Balkaran Singh was suffering from the kidney disease prior to the policy issuance. It was not disclosed in the application dated 1.8.2013 i.e. proposal form and later at any stage. In part C-II in this proposal/complaint form, which deals with 'Personal details of the life to be assured', the relevant questions had been answered as 'No'. Opposite parties have also reproduced these questions with answers. The reproduction of these questions is not considered necessary at this stage. It is also pleaded that had the life assured disclosed the information at the time of applying for insurance policy or later at any stage, opposite parties would have declined the application/proposal for insurance policy. Therefore, the claim was repudiated vide letter dated 2.2.2015. The complainants have not impleaded all the legal heirs of deceased Balkaran Singh. As such, the complaint is liable to be dismissed. It is not maintainable against opposite parties. The complainants have no locus-standi or cause-of-action to file this complaint. On merits, purchase of insurance policy is not specifically denied, but it is stated to be matter of record. It is further denied that Balkaran Singh disclosed all the material particulars to opposite parties. It is also denied that opposite parties obtained the signatures of Balkaran Singh on blank printed forms. It is reiterated that Balkaran Singh concealed the material facts regarding his health i.e. his suffering from kidney disease. He has given declaration in the proposal form to the effect that he has understood its contents. It is admitted that the complete policy documents including terms and conditions were supplied to Balkaran Singh. The receipt of Rs.50,000/- as first premium is admitted. It is denied that Balkaran Singh had fallen ill suddenly. It is further mentioned that Balkaran Singh was already suffering from kidney disease prior to purchase of the insurance policy and he had taken consultation and treatment from D.M.C Ludhiana and Sidhu Hospital and Dialysis Centre, Bathinda. It is admitted that after death of Balkaran Singh, complainant No.1 applied for the claim and claim was repudiated vide letter dated 2.2.2015. It is further pleaded that opposite parties got the matter thoroughly investigated from Wild Investigation, New Delhi. It thoroughly investigated the claim and found that the deceased Balkaran Singh suffered from kidney disease and he had taken consultation and treatment from D.M.C. Ludhiana and registered there on 22.8.2013 as IPD No.38032. He also took treatment from Sidhu Hospital & Dialysis Centre, Bathinda from 26.3.2014 to 30.3.2014. The deceased and treatment related back to the period prior to the purchase of insurance policy as the policy was issued on 14.9.2013. The contract of insurance is of ubberima-fides i.e. utmost good faith. Both the parties have to disclose all the material facts. The duty of insured to disclose the material facts is even more important in this case as the death has taken-place within 2 years from the date of purchase of the insurance policy. It is denied that the repudiation letter is totally illegal, null and void. It is also denied that the claim of the complainants has been illegally repudiated. After controverting all other averments, opposite parties have prayed for dismissal of complaint. Parties were asked to produce the evidence. In support of his claim, the complainants have tendered into evidence photocopy of policy, (Ex.C1); photocopy of first premium receipt, (Ex.C2); photocopy of contact details, (Ex.C3); photocopy of letter, (Ex.C4); photocopy of death certificate, (Ex.C5); photocopy of intimation of death claim, (Ex.C6); photocopy of certificate, (Ex.C7); affidavit of Gurjit Kaur, (Ex.C7); affidavit of Takdeer Singh, (Ex.C8) and submitted written arguments. To rebut the claim of the complainants, opposite parties have tendered into evidence affidavit of Amit Khanna dated 16.9.2016, (Ex.OP1/1); photocopy of intimation of death, (Ex.OP1/2); photocopies of letters, (Ex.OP1/3 and Ex.OP1/6 to Ex.OP1/9); photocopy of affidavit of Balkaran Singh, (Ex.OP1/4); photocopy of consultant confidential form, (Ex.OP1/5); photocopy of authorization letter, (Ex.OP1/10); photocopy of report of D.M.C, (Ex.OP1/11); photocopy of illustration of benefits, (Ex.OP1/12); photocopy of most important documents, (Ex.OP1/13); photocopy of discharge summary, (Ex.OP1/14); photocopy of proposal form, (Ex.OP1/15); photocopy of affidavit of Thakur Rahul Partap, (Ex.OP1/16); photocopy of mandate form, (Ex.OP1/17); photocopy of policy, (Ex.OP1/18) and submitted written arguments. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for parties. Learned counsel for complainants has submitted that the facts are not in dispute. It is not disputed that Balkaran Singh purchased the policy from opposite parties for sum assured of Rs.5 lakhs and paid first premium of Rs.50,000/-. The proposal form was filled-up on 1.8.2013 and at that time Balkaran Singh was not suffering from any disease. Balkaran Singh has died on 30.3.2014, but opposite parties have repudiated the claim vide letter dated 2.2.2015, (Ex.C4). They have alleged that Balkaran Singh was suffering from kidney problem prior to the insurance policy and he has not disclosed this fact in the application dated 1.8.2013. Therefore, only ground to repudiate the claim is that Balkaran Singh has not disclosed about the kidney problem in the application dated 1.8.2013. It is not the case of opposite parties that Balkaran Singh has not intimated about the disease after 1.8.2013 and before issuance of the policy. Onus was upon opposite parties to prove that Balkaran Singh was suffering from any kidney disease, but they have produced no evidence except copy of affidavit of Thakur Rahul Partap, (Ex.OP1/16). In the affidavit, it is simply mentioned that according to medical paper of Dayanand and Medical College and Hospital Ludhiana, LA was registered on 22.8.2013 as IPD No.38032 with the complaint of kidney disease. Therefore, as per this affidavit also, Balkaran Singh received the treatment from 22.8.2013, which is after filing of the proposal form i.e. 10.8.2013. From this report, it cannot be concluded that Balkaran Singh was suffering from kidney problem prior to 1.8.2013 i.e. date of proposal form and he was having knowledge of this disease. Even otherwise, the medical record also does not prove any concealment. As per proposal form, Balkaran Singh was required to disclose about the kidney problem (excluding kidney stones) or disease of kidney reproductive organs. The collected evidence is ultrasound report dated 22.8.2013. As per this report also, 'Rt' kidney is Normal' in size, outline & echogenecity, CMD is maintained. Similarly, 'Left' kidney is reported 'Normal' in size, outline & shows increased cortical echogenecity multiple calculi of 6-10 mm size are seen in various calyces of 'Lt' kidney. Therefore, as per this report also, only some stones were found in the left kidney, but there was no requirement for disclosure of such type of disease. It is further submitted by learned counsel for complainants that the second treatment was taken by Balkaran Singh from Sidhu Hospital @ Dialysis Centre, Bathinda w.e.f 26.3.2014 to 30.3.2014. It is also after issuance of the policy. Therefore, there was no misrepresentation or concealment of facts by Balkaran Singh. As such, opposite parties were not justified to repudiate the claim of the complainants. The complainants have suffered mental tension, botheration and harassment etc. They also remained deprived from the money, which was to be paid by opposite parties as insurance claim. Therefore, they are also entitled to compensation as claimed for and cost of litigation. On the other hand, learned counsel for opposite parties has reiterated his stand as taken in the written version and detailed above. It is further submitted by learned counsel for opposite parties that the contract of the insurance is also sort of contract. It is based on ubberima fides i.e. utmost good faith. Balkaran Singh (DLA) was under obligation to disclose all the information sought for. He was asked to answer to some questions regarding his health, which included the information regarding having suffered from or received treatment for any problem relating to kidney and gasto-intestinal disorder. The answers of both these questions were negative. Of-course, the proposal form was filled-up by Balkaran Singh on 1.8.2013, but the policy was issued on 14.9.2013. Therefore, opposite parties have accepted the proposal form of Balkaran Singh on 14.9.2013. In the proposal form, Balkaran Singh has also undertaken to notify any changes in his health condition between the date of application and prior to acceptance of risk i.e. between 1.8.2013 to 14.9.2013. After lodging the claim by the complainants, the matter was got investigated. Thakur Rahul Partap, Investigator on behalf of Wild Investigation, has investigated the matter and collected the record from Dayanand Medical College and Hospital, Ludiana, (Ex.OP1/11). It proves that on 22.8.2013, DLA was admitted in the hospital due to kidney problem. Various tests were also got conducted in the hospital, which proves that DLA was suffering from kidney problem. Keeping in view the disease, it cannot be concluded that he was not suffering from this disease prior to 1.8.2013 i.e. date of submitting the application(Proposal) form. Moreover as per undertaking in the proposal form, DLA was required to notify opposite parties regarding change in his health condition, but he has not given any information. In this way, he has withheld the material information, which was regarding his health condition and within his knowledge. Therefore, opposite parties have repudiated the claim of the complainants. To support these submissions, learned counsel for opposite parties has cited following cases law:- i) 2008(1) RCR (Civil) 127 P.C Chacko and another Vs. Chairman, Life Insurance Corporation of India and others; ii) 2009 (4) RCR (Civil) 692 Satwant Kaur Sandhu Vs. New India Assurance Company Ltd.; iii) 1984(2) SCC 719 Life Insurance Corporation of India Vs. Raja Vasireddy Komalavalli Kamba and others; iv) 2017(1) CPJ 256 Branch Manager, LIC of India Vs. Jyothi Sudhir. We have given careful consideration to these rival submissions and gone through the cases law cited by learned counsel for opposite parties. It is not disputed that the complainants are LRs. of Balkaran Singh (Deceased Life Assured) i.e. DLA and he obtained the insurance policy from opposite parties to the extent of Rs.5 lakhs. It is also not disputed that after death of Balkaran Singh, the complainants submitted the claim for insurance amount and claim has been repudiated vide letter dated 2.2.2015, (Ex.C4). From the contents of letter dated 2.2.2015, (Ex.C4), it emerges that the claim has been repudiated on the following grounds:- “However, from investigations, it was established that the Life Assured was suffering from kidney disease prior to the policy issuance, which was not disclosed in the application dated August 1, 2013. Had this information been provided to the company at the time of applying for the insurance policy, we would have declined the application.” It is well settled that opposite parties cannot take the ground other than the ground on which the claim has been repudiated. Therefore, the entire controversy is around the fact whether on the date of application i.e. 1.8.2013, DLA was suffering from kidney disease and he was having knowledge of this disease. The onus to prove this fact was upon opposite parties. Reliance of opposite parties is on the affidavit of Thakur Rahul Partap, which is filed with letter, (Ex.OP1/16). In the affidavit, it is revealed that according to medical paper of Dayanand Medical College and Hospital Ludhiana, LA was registered on 22.8.2013 as IPD No.38032 with the complaint of kidney disease and according to the medical paper of Sidhu Hospital and Dialysis Centre, he was treated in this hospital for kidney problem and registered on 26.3.2014 to 30.3.2014. It is also mentioned in this affidavit that as per verbally stated by the neighbours LA was suffering from kidney failure since last two years back. Even if this report is accepted, it is not proved that LA was suffering from kidney problem before submitting the application i.e. 1.8.2013 and he was having knowledge of this disease. Moreover, from the record of Dayanand Medical College and Hospital, kidney problem is not proved. As per proposal form, applicant was required to disclose any kidney problem excluding kidney stones. Copy of ultrasound report collected by the investigator and brought on record by opposite parties as Ex.OP1/11, reveals the following information:- 'R' kidney is 'N' in size, outline & echogenecity, CMD is maintained. Similarly, 'L' kidney is reported 'N' in size, outline & shows increased cortical echogenecity multiple calculi of 6-10 mm size are seen in various calyces of 'L' kidney.” Therefore, this report also, does not prove that DLA was suffering from kidney problem, other then excluding kidney stones. Moreover this report is dated 22.8.2013. Of-course, DLA has also taken the treatment from Sidhu Hospital & Dialysis Centre, Bathinda for the period from 26.3.2014 to 30.3.2014, but investigator has not collected any information to ascertain the type of kidney problem. Pre-disease cannot be held proved simply on the basis of verbal statement of neighbours. Moreover name of neighbours and source of their information regarding disease of DLA are not revealed. The net conclusion is that from the report of investigator, it is not proved that DLA was suffering from kidney problem and he concealed this information. Keeping in view the factual position, case law cited by learned counsel for opposite parties, is not applicable because the facts of the cited cases are not in para-materia with the facts of this case. As a result of above discussion, it is held that the repudiation of the claim by opposite parties, is not justified. Therefore, it stands set-aside. Now, question is regarding compensation. The complainants have claimed Rs.1 lakh on account of compensation for mental tension, botheration and harassment etc., but there is no evidence to prove any botheration and harassment etc. Of-course, opposite parties have declined the rightful claim, the complainants have suffered the monetary loss as they remained deprived from timely use of the claim amount. They can be compensated in terms of interest for this deficiency. For the reasons recorded above, the complaint is partly accepted with Rs.10,000/- as cost and compensation against opposite parties. Opposite parties are directed to pay the insurance amount i.e. Rs.4,50,000/- (Rs.5,00,000/- - Rs.50,000/-=Rs.4,50,000/-) to the complainants in equal shares with interest @ 12% per annum from the date of repudiation of claim i.e. 2.2.2015 till realization. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced:- 04-07-2017 (M.P Singh Pahwa) President (Jarnail Singh) Member
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