Haryana

Yamunanagar

CC/609/11/2015

Amrit Kaur wd/o late shri Puran Chand, - Complainant(s)

Versus

ICICI Prudential Life Insurance Co. Ltd. - Opp.Party(s)

S.S.Saini

22 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No. 609 of 2011

                                                                                    RBR No. 04 of 13.03.2015.

                                                                                    Date of institution: 09.06.0211     

                                                                                    Date of decision: 22.03.2017.

 

Amrit Kaur aged about 40 years widow of late Puran Chand, resident of village Rajput, (Srawan) Sub- Tehsil Sadhaura, Tehsil Bilaspur, District Yamuna Nagar.

    …Complainant.

                                                     Versus

1. ICICI Prudential Life Insurance Company Limited, S.C.O. 126, Sector-17, HUDA, Near District Court Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.
2. ICICI Prudential Life Insurance Company Ltd. Office of Insurance Ombudsman, SCO No.101-102 and 103, 2^nd Floor Batra Building, Sector-17-D, Chandigarh-160017, through its Managing Director.

                                                                                                …Respondents.                                       

 

 

BEFORE: SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                 SH. S.C.SHARMA………………………….MEMBER.

 

Present:    Sh. Surjeet Singh Saini, Advocate, counsel for complainant.  

                 Sh. Peeyush Rohilla, Advocate, counsel for respondents.

 

ORDER  (Ashok Kumar Garg President  )

 

1.                     The present complaint has been filed by complainant Amrit Kaur under section 12 of the Consumer Protection Act, 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the husband of the complainant was got insured for a sum of Rs. 5,00,000/- with the respondents (hereinafter respondents will be referred as OPs Insurance Company) vide insurance policy No. 11547611 dated 16.03.2009 and had paid a sum of Rs. 9740/- as premium amount to the OPs Insurance Company, which was valid up to 2019. In the meantime, on 18.11.2009 Sh. Puran Chand husband of the complainant died and accordingly being legal heir of deceased complainant applied to the claim amount of Rs. 5,00,000/- which had to be paid to the legal heir of deceased but the OPs Insurance Company refused on the basis of false and frivolous grounds by saying that the deceased was in habits of consuming liquor and smoking, without any evidence or proof. Despite repeated requests and demand, the official of OPs Insurance Company did not pay any heed to the genuine request of the complainant and flatly neglected the genuine request of the complainant. Having no other alternative, the complainant had served a legal notice dated 31.01.2011 through her counsel upon the OPs Insurance Company but they intentionally refused to receive the same and the same has been received back by the counsel of the complainant on 03.02.2011. Lastly, prayed for directing the OPs Insurance Company to pay a sum of Rs. 5,00,000/- to the complainant alongwith interest as well as compensation. Hence, this complaint.

3.                     Upon notice, Ops Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint is false, frivolous, vexatious and gross abuse of process of this Forum; this Forum has no jurisdiction to entertain and try the present complaint; complaint is not maintainable. The subject policy has been obtained fraudulently, dishonestly and by misrepresentation. Thus, the present complaint is liable to be dismissed on this ground alone. The proposer/life assured has to maintain and observe a complete good faith in entering into an insurance contract with the insurer. The life assured/proposer is under solemn obligation to make full, complete, true and correct discloser of the material facts which may be relevant for the insurer to take into account while deciding whether the proposal should be accepted or not. In the present case, life assured has suppressed his past medical history of Carcinoma Tongue which was diagnosed prior to the issuance of policy and untrue statement made in the proposal form by the life assured. The true facts are that the OPs Insurance Company received the death claim under the abovesaid policy on 11.01.2010 and after receiving the abovesaid claim intimation the same was registered and during evaluation of the claim it was revealed that the life assured had consulted Mohan Dai Oswal Cancer Treatment & Research Foundation, Ludhiana on 14.03.2009 i.e. prior to the issuance of the policy and was diagnosed with Carcinoma Tongue. It was further revealed that the life assured had a habit of smoking and consuming Alcohol. A copy of OPD card of Mohan Dai Oswal Cancer Treatment and Research Foundation Hospital is attached herewith. A copy of Medical Attendant/Hospital Certificate issued by Dr. Raman Arora, M.D. Consultant & Research Foundation, Ludhiana is enclosed herein as Annexure R-5 wherein it has been mentioned that the life assured was admitted twice with them on 31.03.2009 and 01.05.2009 and the life assured had the history of taking alcohol from past 12 years and history of smoking since past 25-30 years. In fact, the life assured was diagnosed of Carcinoma tongue and had undergone Chemotherapy since two months and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as Photo copy of premium receipt as Annexure C-1, Photo copy of policy certificate as Annexure C-2, Photo copy of death certificate as Annexure C-3, Photo copy of ration card as Annexure C-4, Photo copy of letter dated 26.04.2010 as Annexure C-5, Postal envelop as Annexure C-6, Photo copy of UPS receipt alongwith acknowledgement as Annexure C-7, Photo copy of legal notice as alongwith Proposal form as Annexure C-8 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OPs tendered into evidence affidavit of Hetal Mehta Manager Legal as Annexure RW/A and documents such as Photo copy of Proposal Form as Annexure R-1, Photo copy of policy document as Annexure R-2, Photo copy of claim statement form: Health Claims as Annexure R-3, Photo copy of receipt of Mohan Dai Oswal Cancer Treatment and Research Foundation as Annexure R-4, Photo copy of medical attendants/ Hospital Certificate dated 03.03.2010 as Annexure R-5, Photo copy of letter dated 17.04.2010 as Annexure R-6 and closed the evidence on behalf of OPs. In additional Evidence he examined Dr. Sandeep Verma, EMO in Mohan Dai Oswal Memorial Hospital, Ludhiana as RW.1 and closed the additional evidence on behalf of OPs Insurance Company.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7.                     It is admitted case of the OPs Insurance Company that the husband of complainant Sh. Puran Chand purchased the insurance policy bearing No. 11547611 and had paid a sum of Rs. 9740/- as premium amount to the OPs Insurance Company which is evident from Annexure C-1.

8.                       Learned counsel for the complainant argued at length that genuine claim of the complainant has been repudiated by the OPs insurance company illegally whereas the claim of the complainant was covered under the insurance policy in question and referred the case law titled as Arun Kumar Versus New India Assurance Co. Ltd. & Others, 2016(4) CPR page 33 ( NC) wherein it has been held that Repudiation of death claim on ground of suppression of pre-existing disease- Opinion given by panel doctors is based on presumption only that complainant would have been suffering from degenerative joint disease for last 4 to 5 years- Said presumption has not been supported by any medical evidence or record which may indicate that complainant withheld any material fact about his health condition from knowledge of insurance company while making application for getting policy. Further draw our attention towards the case law titled as Sushil Kumar Jain Verus United India Insurance Co. Ltd. 2012(1) CPC page 463 NC, Bajaj Allianz Life Insurance Co. Ltd. and others Versus Raj Kumar (Mrs), 2014 (3) CPC page 24 NC wherein it has been held that death of insured during subsistence of policy- Claim was wrongly repudiated with the plea that insured/deceased had concealed the pre-existing disease of blood cancer- State Commission rightly granted relief as repudiation of claim was not justified-

            Learned counsel for the complainant further draw our attention towards the case law titled as LIC of India Versus Jivraj Bhai P. Domadia, 2015 (3) CPR page 157 (NC) wherein it has been held that Suppression of Material facts pre supposes knowledge- Petitioner has not placed any evidence on record by which it can be inferred that insured was having knowledge of Lt. Ear discharge before filing proposal form- He rightly expressed his state of health as good- There is no suppression of any material fact by insured in proposal form and petitioner has committed deficiency in repudiating claim on flimsy grounds- Revision petition dismissed.  

9.                     On the other hand, counsel for the OPs insurance company hotly argued at length that the deceased Puran Chand concealed the true and material facts at the time of taking the insurance policy as he was suffering from Carcinoma Squamous Cell Non- keratinizing type which was diagnosed previously at PGI Chandigarh on dated 17.02.2009 (i.e. prior to obtaining the insurance policy in question) which is evident from Annexure R-7. Learned counsel for the OPs further argued that the patient remained admitted in Mohan Dai Oswal Memorial Hospital Ludhiana from 31.03.2009 to 02.04.2009 and again admitted on 01.05.2009 to 05.05.2009 for treatment Chemotherapy and other supported treatment which is evident from Annexure R-9 to R-11. Learned counsel for the OPs further argued that as the husband of complainant had suppressed the fact that he was suffering from Carcinoma squamous cell at the time of taking the insurance policy, so, the claim of the complainant has rightly been repudiated and referred the case law titled as Mrs. Shnyni Valsan Pombally Versus State Bank of India & others, 2014(1) CLT page 356 wherein it has been held that Insurance claim- Repudiation- Pre-existing disease-Held- The deceased was suffering from “diabetes mellitus” for which ailment he was on regular medication for over three years- It was not possible to even comprehend that the insured would not know that he was suffering from diabetes- Undoubtedly, these were “material facts” and being within the knowledge of the insured only, he was obliged to disclose the same correctly- Having suppressed the said facts while answering the questionnaire, we are of the opinion that the Insurance Company was within its rights to repudiate the claim of the complainant- In that view of the matter, there was no question of any deficiency in service on their part and referred the another case law titled Kokilaben Narenderabhai Patel Versus Life Insurance Corporation of India, 2011(1) CLT page 181. Further referred the case law titled as Life Insurance Corporation of India Versus Kusum Patro, 2012(2) CPJ Page 272 NC and Life Insurance Corporation of India and others Versus  Asha Goel (Smt. ) and another, 2001(2) SCC page 160.

10.                   After hearing both the parties, we are of the considered view that the claim of the complainant has been rightly repudiated by the OPs Insurance Company as it is evident from the entire record of PGI, Chandigarh as well as Mohan Dai Oswal Memorial Hospital, Ludhiana (Annexure R-7 & R-11) that the husband of the complainant namely Puran Chand was suffering from Carcinoma Squamous Cell and treatment of which was obtained from the PGI Chandigarh as well as Mohan Dai Oswal Memorial Hospital, Ludhiana . From the perusal of Annexure R-7 to R-11, it is duly evident that deceased Puran Chand remained admitted in PGI as well as Mohan Dai Oswal Memorial Hospital Ludhiana w.e.f. 01.05.2009 to 05.05.2009 due to disease of C.A. Tongue left side (Carcinoma Squamous Cell- Keratinizing type which was diagnosed previously at PGI Chandigarh on dated 17.02.2009 prior to taking the insurance policy in question which is evident from Annexure R-7.  We have also perused the Hospital certificate Annexure R-5 issued by Dr. Raman Arora M.D. Consultant Medicine & Oncology 1.D. Oswal Cancer Treatment & Research Foundation, Ludhiana in which it has been mentioned that the patient was habitual of taking alcohol for the last 12 years and bidi smoking for the last 25-30 years as history was given by the patient and he was diagnosed Carcinoma Tongue from PGI Chandigarh.  Although, no affidavit of any doctor from the PGI has been placed on file by the OPs Insurance Company even then the complainant has totally failed to controvert the version of the OPs Insurance Company and the record of the PGI as well as Mohan Dai Hospital, Ludhiana cannot be disbelieved. We have also perused the proposal form dated 15.03.2007 submitted by deceased Puran Chand  Annexure R-1 in which the deceased Puran Chand  specifically gave the answer to the questions No. 20 & 23 in negative. The question No. 20 E and 23 C, D & E and the answer there to is reproduced as under:

Question No. 20(E) Do you consume or have ever consumed tobacco, alcohol or any other narcotic?

Question No. 23( C) Have you consulted any doctor or are currently undergoing/havie investigation or have been advised to undergo any test, investigation surgery or have been hospitalized for general check up?

Question 23 (d) Have you been treated or hospitalized for cancer, tumor, cysts or any other growth?

Question No. 23 (e) Have you ever been referred to an oncologist or cancer hospital for any investigation or treatment?

The insured gave answering in negative to the above questions.

11.                   From the above evidence, it is duly established that insured did not disclose the true and material facts regarding his health in the proposal form Annexure R-1.

12.                   It is well settled principle of law that any in correct information and false statement made by the insured regarding health, age and income makes the insurance contract null and void. To support to this view can be held from the judgment rendered by Hon’ble National Commission in Life Insurance Corporation of India Versus Smt. Minu Kalita 2002(3) CPJ page No.10 National Commission.                    

13.                   Even in further judgment titled as Modern Insulator Limited Vs. Oriental Insurance Company Ltd. 2000(2) SCC page 734 it has been held as under:

“ It is fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and the good faith forbids either party from non-disclosure of the facts which the parties know-“

14.                   Further, in case titled as P.C. Chacko Vs. Chairman LIC of India 2008(1) Supreme Court Cases 321 Hon’ble Apex Court has held as under:

“20. we are not unmindful of the fact that life insurance corporation being a estate within the meaning of article 12 of the constitution of India, its action must be fair just and equitable but the same would not mean that it shall be asked to make a charity of public money, although the contract of insurance is found to be vitiated by reason of an act of the insured. This is not a case where the contract of insurance or a clause thereof is unreasonable, unfair or irrational which could make the court quarry the bargaining powers of the contracting parties. It is also not the case of the appellant that in framing the aforesaid questionnaire in the application/proposal form, the respondents had acted unjustifiably or the conditions imposed are unconstitutional.”

15.                   Even in the latest law titled as Life Insurance Corporation of India Versus Bimla Devi 2016 (1) CPJ page 57, it has been held by the Hon’ble National Commission that any contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a “material fact” If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering question in the proposal form. Needless to emphasize that 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 into a contract of insurance.

16.                   The law cited by the complainant is not applicable to the facts of the present case as in the present case the deceased Puran Chand was suffering from Carcinoma Squamous Cell- Non- keratinizing type  disease and remained admitted in PGI Chandigarh as well as Mohan Dai Oswal Memorial Hospital, Ludhiana before taking the insurance policy which is duly proved from the entire record placed on file by the OPs Insurance Company.  

17.                   In view of the above noted facts and circumstances of the case and law referred above, we are of the considered view that insured had concealed the true facts regarding his health which was material at the time of obtaining the insurance policy in question. Since, the policy was obtained by the insured on misstatement and by concealing the true facts, so, the insurer is not liable to pay sum insured to the complainants.

18.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 22.03.2017.

                                                                        (ASHOK KUMAR GARG)

                                                                        PRESIDENT

                                                                        DCDRF, YAMUNANAGAR

 

 

                                                                        (S.C.SHARMA    )

                                                                        MEMBER