DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA <br /> <br /> CC. No. 169 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.ICICI Prudential Life Insurance, ICICI Prulife Towers, 1089, Appasaheb Marathe Marg, Prabhadevi, Mumbai 400 025 through its Chairman /Managing Director.<br /> 2.ICICI Prudential Life Insurance , Branch Office, The Mall, 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. Ashok Bharti, Advocate, counsel for the opposite parties. <br /> <br /> O R D E R<br /> <br /> SH. PRITAM SINGH DHANOA, PRESIDENT <br /> 1. This complaint has been filed by Smt. Rekha Garg wife of Sh. Bhim Sain Garg, a resident of Shiv Mandir Street, Bathinda, under section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against ICICI Prudential Life Insurance through its Chairman and Managing Director and Branch Manager, Bathinda, for giving directions to the opposite parties to revive the policy till the date of normal expiry and to pay her claim in the sum of Rs. 1,79,064/- alongwith interest at the rate of 18 percent per annum from 24-12-2007 till the date of payment, a sum of Rs. 2,00,000/- on account of mental and physical harassment and a sum of Rs. 10,000/ on account of costs for filing the instant complaint. Briefly stated the case of the complainant may be described as under :<br /> 2. That Sh. Santokh Singh, agent of the opposite parties approached the complainant and her husband for purchase of Life Time Super Plan – Accident & Disability & Critical illness policies in the sum of Rs. 2,50,000/- each, launched by the opposite parties, for a period of 10 years and paid premium in the sum of Rs. 20,000/-.<br /> 3. The complainant and her husband were allured by offer made by said agent of the opposite parties who secured her signatures on blank printed forms and application form. He also noted down particulars of the complainant and gave her assurance to fill the blank columns subsequently himself as per information conveyed by her. The complainant also paid the amount of premium to him in the month of July, 2006. The husband of the complainant also purchased Insurance policy No. 03092651 dated 18-07-2006 for assured amount of Rs. 15,00,000/- The complainant received letter dated 19-08-2006 from opposite party No. 2 for medical examination and to appear before Dr. G S Nagpal at Nova Heart Institute & Research Centre, The Mall, Bathinda, or Apollo Clinic Deep Complex, near ICICI Bank, Bathinda, and to subject herself for MER, FBS and Lipid Profile tests. The opposite parties again sent a letter to the complainant asking her to appear for medical check up before Dr. Sohan Lal Grover posted in Grover Nursing Home, The Mall Bathinda, who conducted her various tests and made queries from her about previous ailments, if any suffered by her and complainant disclosed every fact touching her health. Thereafter the opposite parties sent Insurance Policy No. 03304990 to the complainant under their Life Time Super Scheme valid for a period of 10 years with Initial Death Benefit, Accident and Disability and Critical Illness Rider to the tune of Rs. 2,50,000/- each. 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 prescribed by them because of which she approached Hero Dayanand Medical College & Hospital, 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 also 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 /> 4. The complainant submitted her claim under the policy alongwith requisite documents to the opposite parties but they vide their letter dated 12-02-2008, intimated her that the “Critical Illness Rider Benefit” is payable provided the Life assured suffers from one of the nine critical illnesses as defined in the policy. Vide their letter dated 07-03-2007, addressed to the husband of the complainant, the opposite parties also claimed that there was concealment and mis-representation of information regarding her admission and treatment, 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 identcal 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 their liability to pay the claim of the complainant under the policy because lapse to mention about the previous admission or treatment of these diseases, if any, appears to be on the part of agent of the opposite parties, but she had no intention to conceal any fact, as such, she cannot be penalised for his wrong and deprived of right to seek 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. 2,00,000/- 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 in question issued in her name as continuous till the date of its expiry and pay the claim amount of Rs. 1,79,064/- alongwith interest at the rate of 18 percent per annum with effect from 24-12-2007 till date of actual payment. Hence, this complaint.<br /> 5. On being put to notice, the opposite parties filed written version resisting the complaint by taking preliminary objections; that complaint is not maintainable; complainant has no locus standi to file the complaint as she is not consumer within the ambit of its definition given in the 'Act' because Insurance policy in her name, was purchased by her husband; that complaint being false and vexatious and abuse of process of court is liable to be dismissed with compensatory costs; that complainant has concealed material facts from the knowledge of this Forum regarding pre-existing diseases suffered by her to harass the opposite parties, as such, complaint is liable to be dismissed. On merits, it is submitted that the opposite parties received proposal form duly filled in by the proposer Mr. Bhim Sain Garg himself to purchase the Insurance policy in the name of the complainant on 19-08-2006, under ICICI Pru Life Time Super Plan in the sum of Rs. 2,50,000/-. The husband of the complainant who is a government contractor and is diploma holder also purchased policies viz Accidental and Disability Benefit Rider and Critical Illness Benefit Rider. The initial premium of Rs. 20,000/- was paid in cash by the husband of the complainant on her behalf. It is submitted that complainant gave declaration to the effect that all the questions in the proposal form are true and correct in every respect to her knowledge and she has not suppressed any material fact and understands the effect of mis-statement and suppression of any such fact, which may lead to repudiation of any claim under the policy. It is contended that considering the age of the complainant and the sum assured, she was subjected to medical examination vide letter dated 14-07-2006. She completed the medical formalities on 26-08-2006. It is contended that based on the replies given by the complainant in the proposal form and her medical examination, policy No. 03304990 was issued in her name for a period of 10 years with Accident and Disability Benefit Rider and Critical Illness Benefit Rider to the tune of Rs. 2,50,000/- each on 31-08-2006. It is submitted that that per Clause 6(2) of the Insurance Regulatory and Development Authority (Protection of policy holder's interest), if policy holder is not satisfied with the terms and conditions, he/ she can withdraw within a period of 15 days, but the complainant retained the documents and did not press for cancellation of policy inspite of knowledge of contents thereof. It is submitted that subsequently, it was revealed that complainant has given wrong information regarding previous ailments suffered by her in the proposal form as she had history of Patent Ductus Arteriosus and Closure Infective Endocarditis Severe Aortic Regurgitation . It was denied that there was any deficiency in service on the part of the opposite parties. Rather it is averred that claim of the complainant has been rightly repudiated and policy has been declared void as per terms and conditions thereof for making mis-statement and suppression of material facts. Rest of the averments made in the complaint have been denied and prayer has been made for dismissal of the same with costs.<br /> 6. 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-11, before he closed her evidence. On other hands, learned counsel for the parties tendered in evidence affidavit of Sh. Reshmi Bhattacharya, Legal Manager, Ex. R-1, and photocopy of complaint Ex. R-2 and closed their evidence.<br /> 7. We have heard, learned counsel for the parties and perused the oral and documentary evidence adduced on record by them, carefully, with their kind assistance.<br /> 8. At the outset, learned counsel for the opposite parties Sh. Ashok Bharti, Advocate, has submitted that policy has been purchased by the husband of the complainant in her name, as such, she has no locus standi to file the complaint because there is no privity of contract between her and the opposite parties. Learned counsel argued that only husband of the complainant, if she has suffered any ailment, is entitled to maintain the complaint and it is liable to be dismissed on that score. <br /> 9. At this stage, learned counsel for the complainant Sh. Rajan Garg, Advocate, has submitted that policy has been issued in the name of the complainant as such, she has locus standi to file the complaint against the opposite parties and complaint is maintainable.<br /> 10. We find merit in the argument advanced by the learned counsel for the opposite parties because the policy has been issued in the name of the complainant and not in the name of her husband, although he might have secured the same for her benefit. The cause of action to the complainant being beneficiary under the policy has accrued because of suffering of ailment and spending of huge amount by her during the validity period and not to her husband who is independent entity. Since the complainant is beneficiary of the policy, therefore, she has locus standi and complaint is maintainable on her behalf in terms of Section 2(d)(ii) of the Act.<br /> 11. Learned counsel for the opposite parties has further argued that complainant has secured more than one policy from different Insurance companies and filed claims, as such, her complaint is liable to be dismissed.<br /> 12. Learned counsel for the complainant argued that no objection in this regard has been taken by the opposite parties in the written version, as such, their counsel cannot raise objection at this stage.<br /> 13. The argument advanced by the learned counsel for the opposite parties is devoid of merit because no such objection has been taken by the opposite parties in the written version. Moreover, learned counsel for the opposite parties failed to draw our attention to any provision of policy that if a person secured more than one policy, he cannot claim benefit thereunder, as per the terms and conditions thereof. Therefore, the argument advanced by the learned counsel for the opposite parties, stands repelled. <br /> 14. Learned counsel for the complainant has submitted that signatures of the complainant were secured on blank forms 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 any 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 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, were distinct from the diseases suffered by her for which she lodged the claim, as such, it cannot be said that she 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 /> 15. On the other hand, learned counsel for the opposite parties 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 further more 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 /> 16. We find merit in the argument advanced by the learned counsel for the opposite parties. As per the undisputed facts, complainant secured ICICI Pru Life Time Super Plan on 19-08-2006 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.<br /> 17. In the proposal form Ex. C-5, she has stated that she does suffer from Chest pain, Palpitation Rheumatic Fever, Heart, Murmur, Heart Attack, shortness of breath or any other Heart related disorder in answer to Question No. 29(e). In answer to Question No. 29 (b) as to if she ever consulted any doctor or been hospitalised for general check up observation, treatment or surgery, she has stated 'No'. The proposal form has been furnished by her on 19-08-2006. Since this document has been tendered in evidence by the complainant,, therefore its contents cannot be ignored especially when her plea 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 affidavit alone, which is self serving document. The complainant is not a rural realistic person, but a retired teacher by profession as has affixed her signatures on proposal form in English. Therefore her plea cannot be accepted that she reposed faith in agent of the opposite parties and affixed her signatures on blank printed forms at his asking or that he filled the columns thereof subsequently to prove their own interest. The agent of the opposite parties was not going to gain anything by introducing wrong facts in the proposal form of the complainant. She has also given declaration above her signatures in the proposal form that she fully understands the nature of questions and the importance of disclosing all material information while giving their answers to the questions 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 have not detected any pre-existing disease, they cannot be debarred from repudiating the claim if some fact prejudice to their interest comes to their notice subsequently.<br /> 18. In the policy schedule Ex. C-10, 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 favourable to her, but she has failed to do so, within the stipulated period.<br /> 19. 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 are bacteria which are causative factor ailments for treatment of which, she subsequently remained admitted in Hero DMC & Hospital at Ludhiana. 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 diseases at subsequent stage. 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 /> 20. In the light of our above discussion and keeping in view the ratio of judgments referred in the authorities, 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 /> 21. 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 /> <br /> <br />