IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No.  CC/68/2014.
Date of Filing: 05.06.2014                                                                             Date of Final Order: 26.04.2016

1).Rafikul Islam S/O- Lt. Rubu
 2). LaxmiBewa w/o- Lt. Rubu
      Both of Vill.& P.O.- Raghunathpur, P.S.-Suti.
      District.- Murshidabad.                                                 …………………………………………… Complainant.
-Vs-
1). Head of Claims,
Tata AIG Life Insurance Company Limited,
 Delphi-B-Wing, 2nd Floor, Orchard Avenue,
Hiranandini Business Park, Powli,
Mumbai-400076.
2).Branch Manager( Policy Servicing Branch)
 Tata AIG Life Insurance Company Limited,
Berhampore Branch Office, 1st Floor,
 Angan  Building, 1/3, K.K.Banerjee Road,
 P.O.- Berhampore, Dist- Murshidabad.
PIN-742101 ( W.B.)    …..........................................………….…..……............ Opposite Parties.

Subhrangshu Sinha, Ld. Advocate         ………………………… for the complainants
Siddhartha SankarDhar, Ld. Advocate          …………………………………….. for the Opposite Party No1&2

                             Present:        Hon'ble President,AnupamBhattacharjyya.
                                                    Hon'ble Member,  Samaresh Kumar Mitra.
                                                    Hon'ble Member,  Pranati Ali.

FINAL ORDER
Samaresh Kumar Mitra, Member.
    This complaint has been filed by the complainant u/s 12 of C.P.Act, 1986 praying for direction upon the Ops to make good the loss for Rs.6,68,500/- sustained by them and compensation of Rs.60,000/- for mental agony and pain including the incidental charges such as medical expenses, convenience.
    The case of the complainants, in short, is that the complainants are the nominees of the deceased Rubu, who had a Life Policy bearing No.U 176496166 for Rs.6,68,500/- with the OPs. The policy was commenced on 03.03.2011. The policy holder died on 11.2.2012 at the age of 56 years at Raghunathpur under Suti P.S. in the district of Murshidabad. After the death of the policy holder, the complainants, being the legal heirs and nominees, registered a claim petition on 10.05. 2012 before the OP No.1 stating all the facts but the their claim petition has been repudiated on the false plea that the health details have been answered in the negative in the  questions set forth in the application for Insurance and those statements as stated by them are false. But the application form has been scrutinized by the Agent of the Company and the same has been accepted by the OP Company.   After the acceptance of the proposal form, the OP Company cannot raise such questions regarding the health of the Insured. Their claim is just and legal. The repudiation of their claim is illegal and motivated.  There is gross negligence and deficiency in service on the part of the OP Company in repudiating their claim. Hence, the instant complaint case.
    The case of the OPs, in brief, is that it is evident from the complaint petition itself that the Opposite Parties paid a sum of Rs.78,914/- to the complainants towards their claim as full and final settlement in June, 2012.This complaint petition has been filed after receiving the full and final settlement of the amount. This complaint has been filed after 2 years from the date of receipt of the claim amount. So the complaint is barred and is liable to be rejected. The deceased Rubu executed the Sales Benefit Illustration document which clearly mentions the benefits and term of the said policy. As per IRDA Guide lines there is an option to return of the policy, if the policyholder is not satisfied within its Free Look Period. The deceased policy holder was proved with the similar option with original documents but he did not opt for the option to return the policy within its Free Look Period. The second premium was due in March, 2012 but the same was not paid. The OP received a claim petition in May, 2012 after the death of the policy holder on 11.02.2012 i.e. within one year of issuance of policy. The Opposite Party made investigation for the same. During the investigation it appeared, from the prescription submitted by the complainants, that period to insurance of the subject policy, he was suffering from Hyper Tension, Vertigo, Anaemia, Diabetes and Asthma. From the another medical certificate issued by Dr. D.C. Adhikary, it appears that the policy holder was under treatment from 05.04.2008 to 20.04.2008 and was on medical leave. It appears from another medical certificate issued by the same doctor that the policy holder was under his treatment.
    At the time of filling up the proposal form the following questions have been asked to answer:-
Q No.9    Have your ever suffered or suffering from any of the following?
(a)    Diabetes, High Blood Sugar or Sugar Urine                Ans: No.
(b)    High/Low BP or raised cholesterol                    Ans: No.
(e)    Symptoms/ailments relating to brain disorder/disease, mental /psychiatric ailment, parkinson's disease, multiple sclerosis, nervous system, stroke, paralysis or paraplegia or epilepsy ?
                                        Ans: No.
(g)    Anaemia or any other blood related disorder?                Ans: No.
              Hence, it is established that there was non-disclosure by the deceased Rubu pertaining to his health condition at the time of taking policy. So, the policy is liable to be repudiated. Moreover, the deceased Rubu at the time of making proposal for the policy disclosed his occupation as self employed and his annual income was Rs.7 lacs but on investigation it  was revealed that he was a  retired railway track man getting a pension of Rs.8,000/- per month i.e. Rs.96,000/- in a year. The deceased Rubu suppressed the material facts related to his health and obtained the policy from the OP Company. The instant case is based on suppression of fact and filed by the complainants with intention to make benefit out of their own wrong. The case is liable to be dismissed with exemplary costs.             
The complainants filed evidence on affidavit on 09.03.2015 and assailed that they are the nominees of the deceased Rubu who had a policy being No.0176496166 on the life of the deceased for a sum assured to the extent of Rs.6,68,500/- to the OP Company and the deceased  Rubu died on 11.02.2012 at Raghunathpur, Suti P.S., Murshidabad at the age of 56 years. And after the death they registered a claim petition before the OP No.1 stating all the facts on 10.5.2012. The said claim petition has been repudiated by the OPs on the plea that the health details have been replied in the negative in the questions set forth in the application for insurance and those statements as stated by them are false. The premium amounting to Rs.95,500/- has been duly paid by the deceased. So it is not proper on the part of the OPs to repudiate the claim of the complainants after taking first premium. They also assailed that the company is wrong in repudiating the policy after having the 1st premium of Rs.95,500/- without verifying the health status of the deceased and this act  tantamount to deficiency of service on the part of the OPs and they are bound to compensate the claim of the nominees as demanded by them.
Argument as advanced by the agents of the parties heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS   FOR   CONSIDERATION
1.    Whether the Complainants Rafikul Islam & Laxmi Bewa  are  'Consumers' of the opposite party?
2.    Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3.    Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4.    Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
DECISION WITH REASONS
   In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainants Rafikul Islam & Laxmi Bewa are'Consumers' of the opposite party?
    From the materials on record it is transparent that the Complainants are "Consumers" as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainants herein are the consumers of the OP, as policy holder was the father of the Complainant No.1 and husband of complainant No.2. They are the nominees of deceased policy holder. So they are entitled to get the premium proceeds of the policy in the name of deceased.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainants and opposite parties are residents/carrying on business within the district of Murshidabad. The complaint valued Rs.6,68,500/- for loss sustained by the complainant and Rs.60,000/-as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.     
 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
           It is well settled proposition of law that a contract of insurance is based on the principles of utmost good faith-uberrimae fidei, applicable to both the parties. The rule of nondisclosure of material facts vitiating a policy still holds the field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts; the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which is within his/her personal knowledge or which he ought to have known had he made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non disclosure of material facts.
          The expression "material fact" is not defined in the Insurance Act,1938 and therefore, as observed by the Supreme Court in Satwant Kaur Sandhu -vs- New India Assurance Company Ltd. 2013 (3) CPR 644 (SC),it has to be understood in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact, which goes to the root of the contract of insurance and has a bearing on the risk involved, would be "material" and if the proposer has knowledge of such fact, he is obliged to disclose it, particularly while answering questions in the proposal form. Any inaccurate answer will entitle the insurer to repudiate their liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance.    
         The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people throughout the nation since a long back with self generated assets i.e. goodwill of the business. The credibility of the OP Insurance Company is unquestionable and that is why the husband of the complainant No.2 insured his life before the said company without any doubt. Dispute cropped up in between the parties when the complainants did not get the claim amount after the expiry of policy holder as the OP repudiated the claim of the complainants on the ground of suppression of material facts during the filing of proposal Form.
            In order to bring the present case within the purview of fraud, misrepresentation or concealment of material fact, it was necessary on the part of the OP to establish that the insured at the time of obtaining insurance was aware of his medical condition and he had intentionally concealed the same.
          The Insurance Company in the Written Version refuted allegations of deficiency in service and averred that in the prescriptions of different physicians of the complainant it has been mentioned that he was suffering from hypertension for four years and heart disease was result of that disease of Hypertension. This fact was not mentioned by the complainant in the proposal form, therefore the claim was not paid.       
          Ld. Counsel for the Insurance Company has placed very much reliance upon entries in prescription of
 Dr. Amal Haque dated 14.5.2009, it is a case of Influenza, Chest Pain & Anaemia, the Prescription dated 19.09.2009 stated Hypertension, Vertigo, Congestion in Chest, Jaundice& fever. The Prescription dated 10.01.2010 stated the disease as Asthma, Chest Congestion & Anaemia, other prescription dated 26.10.2010 also stated the diseases as Flatulence, Dyspepsia, Hypertensive, Indigestion & Vomiting and he also certified that he was treating the policyholder from 2009 and the patient was suffering from Diabetis Mallitus, Hypertensive, COPD, Vertigo etc. Another Doctor namely Dr.D.C.Adhikary treated the policyholder on 05.04.2008 and certified that he was suffering from Dysentery & Spasmotic Pain for leave of job/duty.
The complainant being an illiterate person was making a job with Indian Railway and used to draw salary by putting Left Thumb Impression.  After retirement, the policyholder with the intension to invest his retirement benefits in any scheme or time deposit before any financial institution took/seek the advice ofthe manager United Bank of India, Lakshmipur Branch who advised him to invest before the OP No.1&2 for getting better return in comparison to his bank. Not only the Manager United Bank of India, Lakshmipur Branch put his signature and seal in the column of Agent in the policy proposal form of OP No.1 &2 in which the complainant put his LTI for accepting all the terms and conditions of policy knowing that he is investing in the Basic Plan-Flexi Supreme, Policy Term-15 yrs, Premium Term-15 yrs, Premium Amount Rs.95,500/-, Sum Assured- Rs.6,68,500/-. It was the duty of the agent to inform the policyholder regarding the terms and condition of the policy before putting signature/LTI in the policy proposal form. But the OPs denied their responsibility and they submitted in their written version in the usual course of business, the application Form was filled up upon the details and information provided by the deceased LA, considering the same to be true and correct. The deceased LA was advised to give true and correct information while making information.As the complainant is an illiterate person he could not read the terms and condition of the policy so it is the role of the agent to inform the proposer of the policy regarding everything of the policy before purchasing the same. As the proposer could not assess the free look period due to his illiteracy so it was not possible for him to accept or reject the policy within the time framed.
It appears from the application form of OP No.1&2 Insurance Company that the occupation class of policy holder is stated as 'Self Employed', Occupation Type- Proprietary, Industry- Retail, Annual Income-Rs.7,00,000/- per annum, Identity proof- Voters Id. Card, Address Proof- Branch Manager Certificate, Income Proof- N/A., Exact Nature of daily duties -100% Administration, Step-7 i.e. Payment Details ; Premium Payment Method : Through UBI deposit Slip, Step-10, Declaration& Authorization; in the column of Signature/ Thumb impression of life Assured-LTI of complainant dated 04.03.2011; Code of Agent/ Specified Person/ Broker /Employee; Signature & Seal of United Bank of India, Lakshmipur Branch. In the column of, in case the life Assured/Proposer is illiterate or signing in vernacular; the declaration was made by one-SaionKarmakar,  having identity No.- 3954229 hereby declare that he has explained the contents of the Application Form to the life Assured/ Proposer in Bengali Language and he has read out to the Life Assured/ Proposer  the answers to the questions dictated by the Life Assured/ proposer and that the Life Assured/ Proposer has affixed his thumb Impression on the Application Form after fully understanding the contents thereof. The thumb Impression of Life Assured/ Proposer was witnessed by said Saion Karmakar, having identity No. 3954229 who put his identity details and put his signature as Advisor/ Employee. From the above statement that transpires from the proposal form clearly depicts that the Advisor/ Employee i.e. Saion Karmakar, having identity No.- 3954229 who being the agent attested the Life Assured/Proposer did not read out the contents of the Application Form to the Life Assured/ Proposer in Bengali. The Complainant utmost on good faith invested the sum of Rs.95,500/- as annual premium before the Insurance company of OP No.1&2 with the advice of Saion Karmakar,  having identity No. 3954229 on behalf of United Bank of India, Lakshmipur Branch.
After perusing the prescription of Doctors before whom the policy holders was receiving treatment as produced by the OP that he was not suffering from serious ailments/ pre-existing diseases and the DLA was duly performing his duties. It is just like a minor ailment and thereafter he is declared fit and the complainant was actually not aware that he had to declare as to how many times he had to furnish the medical fitness certificate, which was duly furnished by the complainant. In Modern Insulators -Vs-. Oriental Insurance Co. Ltd. (2000) 2 SCC 734 it was held that duty of the parties is to disclose the fact in their knowledge. Exclusion clause was neither disclosed by the insurer nor made part of the insurance contract. It was further held that in absence of communication of the exclusion clause to the insured, the insurer could not claim the benefit of that clause. It was further held that it is the fundamental principle of insurance law that, utmost good faith must be observed by the contracting parties and good faith forbids either party from nondisclosure of the facts which the parties know. The insurer has a duty to disclose and similarly, it is the duty of the insurance company and its agents to disclose the material facts in their knowledge since the obligation of 'good faith' applies to both, equally.
As the complainant is an illiterate person he could not read the terms and condition of the policy so it is the role of the agent to inform the proposer of the policy regarding everything of health and financial condition before purchasing the same.  But in the face of case record it appears that the Proposal Form was filled up by any person except the policyholder and the DLA put his LTI after or before filing up the said Form. Being an illiterate person he could not asses the enhancement of annual income to Rs.7,00,000/- although he knew very well that he is a retired Rly. Track man and quantum of pension that he received. But the agent in question made the paper work for getting the policy by the policyholder. So the DLA being an illiterate person is no way responsible for suppression of facts regarding health status and fabricating the income as he could not read and write.
      It appears from the case record that the OP paid a sum of Rs.78,914.50 to the complainants towards their claim as full & final settlement in June, 2012, which has been accepted by them. But it is the question that why the OP did not pay the sum assured to the Nominees/Legal heirs of DLA. If the LA violated the terms &conditions of agreement which leads to breach of contract then why they paid a sum of Rs.78,914.50 as full & final settlement towards the claim of these complainants except rejecting the claim.
Upon consideration of the evidence adduced by the parties, this Forum observed that the Insurance Company had failed to bring on record any proof in support of their plea that the deceased was suffering from any pre-existing disease at the time of obtaining the policy; there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease at the time of obtaining the policy; there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease and that the medical evidence relied upon by the Insurance Company was neither supported by any corroborative evidence nor did it prove that the said treatment had any nexus with the cause of death.This Forum thus came to the conclusion that there was no suppression of any material fact by the DLA and therefore, in not settling the claim of the complainant in full, there was deficiency of service on the part of the Insurance Company, causing great hardship, financial loss and mental agony to the complainants.
           We also carefully went through the judgment citation submitted before us by OP No.1&2, i.e. i). Life Insurance Corporation Of India -V/S- Neelam Sharma IV (2014) CPJ 658(NC) ii).ICICI Prudential Life Insurance Co. Ltd- Vs- Lalitha Jain II (2015) CPJ 246 ( NC) iii). MJRJ Medichem Surgicals - Vs.- National Insurance Co. Ltd &Othrs. I (2015) CPJ 681( NC) .
     So we are in a considered opinion to allow the complaint as DLA was not suffering from any fatal disease that leads to the death of the policyholder when he signed the policy proposal of this OP Insurance Company and OP could not prove the same. We direct the OP Insurance Company to pay the sum assured Rs.6,65,500/- deducting the settled amount received by the complainants amounting to Rs.78,914.50 along with interest since the filing the complaint @ 9% p.a. till the realization.
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants are able to prove their case and the Opposite Party is liable to pay the ordered amount.
ORDER
    Hence, it is ordered that the complaint case being No.68/2014 be and the same is allowed in part on contest against the Opposite party with a litigation cost of Rs.5,000/-.
                  The whole gamut of the facts and circumstances leans in favour of the complainants. We, therefore, allow the complaint and Opposite Party No.1 &2 are directed to pay jointly and or severally the sum assured Rs.6,65,500/- deducting a sum of Rs.78,914.50 in favour of the complainants along with the interest  from the date of filing the complaint i.e.24.02.2014 @ 9% p.a. till its realization.
                  No other reliefs are awarded to the complainant for harassment and mental agony.
                   At the event of failure to comply with the order  the Opposite Party  shall pay cost @ Rs.100/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.
                    Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
Dictated and  corrected by me.

                  Member,                                    Member,                         President.