DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA <br /> <br /> CC. No. 168 of 05-06-2008<br /> Decided on : 16-04-2009 <br /> <br /> Mrs. Rekha Garg, W/o Sh. Bhim Sain Garg, R/o Street No. 1, Barnala Road Bypass, Shiv Mandir Wali Gali, Bathinda. ... Complainant<br /> Versus<br /> <br /> 1.AVIVA Life Insurance Company India Limited, Regd. Office : 2nd Floor Prakashdeep Building, 7 Tolstoy Marg New Delhi 110 001 through its Chairman/Managing Director.<br /> 2.AVIVA Life Insurance Company India Limited, Aviva Tower Sector Road, Opp. Gold Course DLF Phase V, Sector 43, Gurgaon 122 003 (Haryana), through its Manager.<br /> 3.AVIVA Life Insurance Company India Limited, Branch Office, Bathinda, through its Branch Manager.<br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. Pritam Singh Dhanoa, President<br /> Dr.Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member<br /> <br /> Present : Sh. Rajan Garg, Advocate, counsel for the complainant<br /> Sh. Pankaj Soni, Advocate, counsel for the opposite parties. <br /> <br /> O R D E R<br /> <br /> SH. PRITAM SINGH DHANOA, PRESIDENT <br /> 1. Mrs. Rekha Garg W/o Sh. Bhim Sain Garg, a resident of Shiv Mandir Street, Bathinda, has filed instant complaint under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against AVIVA Life Insurance Company India Limited, through its Chairman/Managing Director, New Delhi, Managers of its Gurgaon and Bathinda Branches, on the averments which may briefly be described as under :<br /> Sh. Gurvinder, as an agent of the opposite parties approached the complainant and her husband Sh. Bhim Sain Garg and convinced them to purchase Accidental Death and Dismemberment Rider and Hospital Cash Benefit Rider, Insurance scheme launched by the opposite parties, for a sum of Rs. 1,45,000/- on payment of premium of Rs. 10,000/-. As disclosed by the agent of the opposite parties these plans were for the entire life. The complainant and her husband were allured by the agent of the opposite parties, who secured their signatures on printed proforma of application and noted down particulars of the complainant, with the assurance that he will fill the blank columns of the application by himself. He also received amount of premium from the complainant in the month of October, 2006 and made inquiries from her about any disease suffered by her earlier. After sometimes, opposite parties sent Insurance policy bearing No. WLG1383732 in the name of the complainant under their Life Long Plan for Rs. 1,45,000/-. In the month of September, 2007, the complainant developed fever accompanied by rigors, chills and cough. She got routine medical check-ups from various doctors at Bathinda, but she was not cured of her ailments with the treatment given to her by them because of which she approached Hero Dayanand Medical College & Hospital, (Here-in-after referred to as 'Hero DMC'), Ludhiana, on 16-11-2007, where clinical and other laboratory tests were performed by the doctors who diagnosed that she is suffering from Infective Endocarditis and Severe Aortic Regurgitation. The complainant remained admitted in Incentive Care Unit of the said hospital for the period 16-11-2007 to 24-12-2007. During this period, ECG and Echocardiography was performed and said hospital charged a sum of Rs. 1,79,064/- from her for treatment under C.R. No. 72785.<br /> 2. The complainant submitted her claim under the policy alongwith requisite documents to the opposite parties as per clause 3.2.2 of Article 3 of Benefits of Hospital Cash Benefit Rider Policy i.e. for treatment and admission for 39 days at the rate of 3,000/- per day. The opposite parties addressed letter dated 24-01-2008, to the complainant seeking supply of certain documents showing her admission in the hospital at Ludhiana and letter of authorisation etc., which were supplied by the complainant vide letter dated 05-03-2008. She also told the opposite parties that previous record is not available with her and letter of authorisation has also been sent vide letter dated 05-03-2008. However, vide their letter dated 18-03-2007, the opposite parties informed the complainant that there was concealment and mis-representation of information regarding her admission, in the proposal form and that claim filed by her is not payable in terms of Insurance policy, which stands cancelled. It is submitted that diseases suffered by the complainant for treatment of which she was admitted in Hero DMC, Ludhiana, on 16-11-2007 and the diseases for which she was treated in July, 2005 and January, 2006 are not identified as she was not treated during the said period for Infective Endocarditis and Severe Aortic Regurgitation . It is asserted that the opposite parties are trying to wriggle out of the liability to pay the claim of the complainant under the policy because lapse to mention about the previous admission or treatment of these diseases appears to be on the part of agent of the opposite parties, but the complainant has no intention to conceal any fact, as such, she cannot be penalised for his wrong and deprived of the claim under the policy. The complainant is subjected to mental and physical harassment because of rejection of claim under the Insurance policy by the opposite parties in unjust manner and against the provisions of the policy. As such, she is entitled to payment of compensation in the sum of Rs. 1,00,000/- and a sum of Rs. 10,000/- as costs for filing the instant complaint with further direction to the opposite parties to treat the policy issued in her name as continuing and pay the claim amount of Rs. 1,17,000/- alongwith interest at the rate of 18 percent per annum with effect from 24-12-2007 till the date of actual payment. Hence, this complaint.<br /> 3. On being put to notice, opposite parties filed written version taking preliminary objections; that complaint is false and vexatious and is liable to be dismissed with compensatory costs; it is not maintainable; that complainant has not approached this Forum with clean hands as she has mis-represented and suppressed material facts from the knowledge of this Forum; that contract of Insurance is utmost good faith i.e. 'uberrimae fidae', as such, her complaint deserves to be dismissed. On merits, the factum of issuance of the policy in the name of the complainant is admitted but it is denied that the agent of the opposite parties gave any assurance to her or got her signatures on blank papers. It is submitted that opening paragraph of the forwarding letter of the Insurance policy provides that Insured was requested to check the policy carefully to ensure that the details are correct and copy of the proposal form was enclosed with the policy document for confirmation, but the complainant never disputed the contents. It is submitted that reconsideration is possible if insured differs with the terms and conditions of the policy, within 15 days of receiving the policy document, but no such action has been taken by the complainant. It is contended that from the discharge summary of the complainant, it reveals that she had a history of PDA Closure in the month of May, 2006 and she has been suffering from Infective Endarteritis and Dyspnoea and Staph Aureus and Streptococcus Fecalis in July, 2005 and January, 2006 respectively, but she failed to disclose these facts and has given deliberately wrong answers to the questions put to her in the proposal form that 'if she ever suffered from High blood pressure, angina, heart attack, stoke or any other disorder of heart or circulation or any other illness, surgery or injury'. As such, her Insurance policy has been rightly cancelled by the opposite parties. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the same with compensatory costs.<br /> 4. On being called by this Forum, to do so, learned counsel for the complainant tendered in evidence affidavit and copies of documents Ex. C-1 to Ex. C-9 before he closed her evidence. On other hands, learned counsel for the parties tendered in evidence affidavit of Sh. Ravi Bhadani Ex. R-1, and closed their evidence.<br /> 5. We have heard, learned counsel for the parties and perused the oral and documentary evidence adduced on record by them, carefully,<br /> with their kind assistance.<br /> 6. At the outset, learned counsel for the complainant Sh. Rajan Garg, Advocate, has submitted that signatures of the complainant were secured on blank form which has been filled subsequently by the agent of the opposite parties as per their convenience, as such, it could not be said that complainant has concealed factum of pre-existing ailment in the proposal form before issuance of Insurance policy in her name. Learned counsel has further submitted that complainant was subjected to medical examination by the doctor on the penal of the opposite parties, as such, they were not justified in repudiating her claim or cancellation of Insurance policy secured by her. Learned counsel has further argued that disease for which the complainant was treated in the months of July, 2005 and January, 2006 and so operated in the month of May, 2006, are distinct from the diseases suffered by her for which she lodged the claim, as such, it cannot be said that complainant has deliberately and intentionally suppressed any fact. Learned counsel has urged that complainant has undergone mental and physical agony due to repudiation of her claim and cancellation of policy by the opposite parties in arbitrary manner, as such, she is entitled to seek compensation and costs incurred by her in filing of instant complaint.<br /> 7. On the other hand, learned counsel for the opposite parties Sh. Pankaj Soni, Advocate, has submitted that complainant has not produced any corroborating evidence to establish her plea that her signatures were secured on blank printed forms by the agent of the opposite parties or that contents thereof were filled by him subsequently. Learned counsel argued that as per terms and conditions of policy schedule, Insurer has option to cancel the policy and to return the same alongwith premium receipt, if he disagree with its terms and conditions, within a period of 15 days, but no action has been taken by the complainant, who is a literate person, as such, she is estopped from claiming that she was not aware of contents thereof. Learned counsel has further argued that complainant has admitted in the complaint itself that she had history of PDA Closure and Infective Endocarditis and Dysponea in the month of May, 2006 and suffered from Staph Aureus and Streptococcus Fecalis in July, 2005 and January, 2006 respectively, but in the proposal form, she has suppressed these facts deliberately and intentionally. Learned counsel argued that contract of Insurance is a contract of good faith i.e. 'uberrimae fidae', as such, if the Insured commits any act of bad faith, then, he losses the right to claim compensation under the Insured policy. Learned counsel has argued that diseases suffered by the complainant in the year, 2007 are consequences of previous ailments suffered by her, as such, there is no deficiency in service on the part of the opposite parties for which compensation may be claimed from them by the complainant which may warrant the indulgence of this Forum. In support of his contentions, he placed reliance on 2008(III) CLT 381( SC) P.C. Chacko & Another Vs. Chairman, Life Insurance Corporation of India & Ors., wherein the insured had undergone an operation for Adenoma Thyroid. It was a major operation, although the said operation was undergone by him four years prior to the obtaining the Insurance policy, the Hon'ble Supreme Court held that :<br /> “The insured furthermore was aware of the consequence of making a misstatement of fact. If a person makes a wrong statement with knowledge of consequence thereof, he would ordinarily be estopped from pleading that even if such a fact had been disclosed. It would not have made any material change. The purpose for taking a policy of Insurance is not, in our opinion very material. It may serve the purpose of social security but then the same should not be obtained with a fraudulent act by the Insured. Proposal can be repudiated if a fraudulent act is discovered. The proposer must show that his intention was bonafide. It must appear from the fact of the record. In a case of this nature, it was not necessary for the Insurer to establish that the suppression was fraudulently made by the Life Assured or that he must have been aware at the time of making the statement that the same was false or that the fact was suppressed which was material to disclose. A deliberate wrong answer which has a great bearing on the contract of Insurance, if discovered may lead to the policy being vitiated in Law.”<br /> Learned counsel has also relied upon AIR 1937 Nag 270 at 272 Haji Ahmed Year Khan Vs. Abdul Gani Khan wherein it was held that :<br /> “there is no general duty to speak or to disclose facts, which are or might be equally within the means of knowledge of both parties. There are special duties of disclosure in particular classes of contracts, viz in contracts between an Insurer and the Insured and where one party stands in a fiduciary relationship with the other. In such contracts of uberimma fides there is a legal and equitable duty on the parties, not only to state truly whatever is stated, but also to divulge with candor and completeness, facts regarding which there is no objection to disclose.”<br /> 8. We find merit in the argument advanced by the learned counsel for the opposite parties. As per the undisputed facts, complainant secured Life Long Insurance Policy alongwith Hospital Cash Benefit Rider Scheme on 10-08-2006 from the opposite parties. In the complaint itself, she has admitted that she was treated in the month of July, 2005, January, 2006 and operated upon in the month of May, 2006 for Staphylococcus Aureus, Streptococcus Fecalis and PDA Closure surgery, It is well settled that admitted facts need no formal proof. Even otherwise as per copy of discharge summary issued on 24-12-2007 Ex. C-9, by Hero DMC, Ludhiana, the complainant suffered from fever associated with rigors and chills and cough prior to her admission and has history of Staph Aureus in July, 2005 and Streptococcus Fecalis in January, 2006 and also history of PDA Closure, May, 2006.<br /> 9. In the proposal form Ex. C-3, she has stated that she does suffer from any illness, surgery or injury in answers to Question No. (xiv). In answer to Question No. (i) as to if she ever suffered from blood pressure, angina, heart attack, stoke or any other disorder of heart or circulation, she has stated 'No'. The proposal form has been furnished by her on 18-12-2006. Since this document has been tendered in evidence by the complainant,, therefore its contents cannot be ignored. The plea of the complainant that her signatures were secured by the agent of the opposite parties on blank printed form, is not corroborated by any oral or documentary evidence. In the absence of any positive evidence, reliance cannot be placed on her affidavits alone, which are self serving documents. The complainant is not a rural realistic person, but a retired teacher by profession and has affixed her signatures on proposal form in English. The profession of the complainant is mentioned in the proposal form itself. Therefore, her plea cannot be accepted that she reposed faith on agent of the opposite parties and affixed her signatures on blank printed forms, but their agent filled the columns thereof subsequently to prove their own interest. The agent of the opposite parties were not going to gain anything by introducing wrong facts in the proposal form of the complainant. She has also given declaration above her signatures at the time of giving proposal form that she fully understands the nature of questions and the importance of disclosing all material information while giving their answers in the proposal form and they are true and complete in all respects and in case of suppression of material information, company shall have right to repudiate the claim against the policy. Since, complainant was not suffering from any patent ailment, therefore, even if doctor of penal of the Insurance company has not detected any factum of previous disease, they cannot be debarred from repudiating the claim if some fact prejudice to their interest comes to their notice subsequently.<br /> 10. In the policy schedule Ex. C-4, brought on record by the complainant herself, it has been mentioned that she has option to cancel the policy and to return the same alongwith premium receipt if she disagrees with the contents of terms and conditions thereof, within a period of 15 days from the date of policy, as such, she had option before her to cancell the policy incase terms and conditions are not considered favoaurable to her, but she has failed to do so, within the stipulated period. <br /> 11. The complainant has lodged the claim for payment of money under the Insurance policy for treatment and admission in Hero DMC, Ludhiana, for the period 16-11-2007 to 24-12-2007 for treatment of Infective Endocarditis and Severe Aortic Regurgitation. As per our opinion, Staphylococcus Aureus and Streptococcus Fecalis pre-existing diseases suffered by the complainant has bacteria which are causative factor for which she subsequently remained admitted in Hero DMC, Ludhiana, related to liver. In the given circumstances, we are of view that complainant has suppressed material facts in the proposal form regarding his health, deliberately and intentionally for wrongful gain to herself and to cause wrongful loss to the opposite parties under apprehension of aggravation of her disease. There is no dispute as to settled proposition of law that Insurance is a contract of good faith between the Insured and the Insurer and if the Insured conceals any fact touching his/her health, then the Insurance company is well within its rights to repudiate the claim and cancel the Insurance policy.<br /> 12. In the light of our above discussion and keeping in view the ratio of judgments, relied upon by the learned counsel for the opposite parties, we have come to the conclusion that there is no deficiency in service on the part of the opposite parties on account of which relief claimed by the complainant may be granted.<br /> 13. For the aforesaid reasons, we dismiss the complaint and leave the parties to bear their own costs. The copies of this order be sent to the parties, free of costs as permissible under the rules, on the subject. <br /> File be indexed and consigned. <br /> Pronounced :<br /> 16-04-2009 (Pritam Singh Dhanoa)<br /> President<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> (Amarjeet Paul)<br /> Member <br /> <br /> <br />