STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (Appeal No. 28 of 2009) Date of Institution | : | 15.01.2009 | Date of Decision | : | 02.05.2011 |
Gamdoor Singh, father of Late Sarabjit Singh Dhindsa, Resident of H.No. 3227/2, Sector 44-D, Chandigarh. ……Appellant. V e r s u s ING Vysya Life Insurance Company, SCO No.72-73, Sector 8, Madhya Marg, Chandigarh. ....Respondent. Appeal U/s 15 of Consumer Protection Act, 1986 Argued by: Sh. Sunil Dixit, Advocate for the appellant. Sh. Jatin Kumar, Advocate for the respondent. (Appeal No. 30 of 2009) (Date of Institution: 15.01.2009) Amarjit Kaur wife of Sh.Gamdoor Singh, mother of Late Sarabjit Singh Dhindsa, Resident of House No.3227/2, Sector 44-D, Chandigarh. ……Appellant. V e r s u s ING Vysya Life Insurance Company, SCO No.72-73, Sector 8, Madhya Marg, Chandigarh. ....Respondent. Appeal U/s 15 of Consumer Protection Act, 1986 Argued by: Sh. Sunil Dixit, Advocate for the appellant. Sh. Jatin Kumar, Advocate for the respondent. BEFORE: HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT. MRS. NEENA SANDHU, MEMBER. JUDGMENT PER HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT 1. This judgment shall dispose of the aforesaid two appeals, involving the common question of law, and almost identical facts, directed against the order dated 11.12.2008, rendered by the District Consumer Disputes Redressal Forum-1, U.T., Chandigarh (hereinafter to be called as District Forum only), vide which it dismissed Complaint Case No.543 of 2008– Gamdoor Singh Vs. ING Vysya Life Insurance Company and Complaint Case No.542 of 2008– Amarjit Kaur Vs. ING Vysya Life Insurance Company. 2. The facts, in brief of Complaint Case No.543 of 2008– Gamdoor Singh Vs. ING Vysya Life Insurance Company, run in the manner, that son of the complainant Late Sarabjit Singh Dhindsa purchased one policy dated 19.07.2005 from the OP (respondent), during his life time, for a sum of Rs.4.00 lacs and paid the premium, on regular basis. He died in Omni Hospital, on 02.03.2006 due to jaundice and difficulty in breathing. After his death, the Complainant lodged a claim, with the OP, which was repudiated, on the ground that, the deceased had concealed the material facts of his being alcoholic and having high blood pressure, since long at the time of filling the proposal form, and issuance of insurance policy. 3. Complaint Case No.542 of 2008– Amarjit Kaur Vs. ING Vysya Life Insurance Company- In this complaint, Sarabjit Singh Dhindsa, son of the complainant (now appellant), purchased insurance policy no. 00286858, from the OP, for a sum of Rs.58,316/- on 19.07.2005 and paid the premium, on regular basis. On 02.03.2006, he died in Omni Hospital, due to jaundice and difficulty in breathing. The claim, when lodged by the complainant, was repudiated, on the ground that, the deceased suppressed/ concealed the material facts, of his being alcoholic and having high blood pressure, since long, at the time of filling the proposal form, and obtaining of insurance policy. 4. It was stated by the complainants that the act of the Insurance Company, in repudiating the claim of the complainants, on the ground of concealment of material facts, amounts to deficiency in service, and indulgence into unfair trade practice. 5. When the grievances of the complainants were not redressed, left with no other alternative, they had to file the complaints, referred to above, under section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act only). 6. The OP, in its reply admitted that, the son of the complainant took the life insurance policy and paid regular premium. It was stated that, however, he concealed the material facts, of being alcoholic and suffering from high blood pressure, at the time of taking the insurance policy. It was further stated that, in the proposal form, it was stated, in clear-cut terms, by the insured (now deceased), that he was neither alcoholic nor was suffering from high blood pressure. It was further stated that, since the deceased had been suffering from hypertension, for the last 7 years, and had been a chronic alcoholic, for the last 20 years, before submitting the proposal forms and, as such, by not disclosing these material facts, he committed fraud, upon the Insurance Company, especially when his being chronic alcoholic had direct nexus with the disease, resulting into his death. It was further stated that, in these circumstances, as per the terms and conditions of the insurance policy, the claim filed by the complainants, was rightly repudiated. All other averments were denied, being wrong. 7. The parties led evidence, in support of their cases. 8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the District Forum, dismissed the complaints, referred to above, vide common order dated 11.12.2008, on the ground that, the repudiation of the insurance claim, made by the complainants, was legal and valid, as the deceased suppressed the material facts of his being chronic alcoholic and also suffering from hypertension, since long. 9. Feeling aggrieved, the aforesaid two appeals, were filed by the appellants. 10. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, very carefully. 11. The Counsel for the appellants, submitted that, no affidavit of the Doctor, who examined the deceased, when he was admitted in the hospital, was placed on record, stating that, the deceased had been taking alcohol ,for the last 20 years and that, he had been suffering from hypertension, for the last 7 years. He further submitted that, no previous medical history of the deceased was produced, on record, to show that, he was taking the treatment, for hypertension or alcoholic liver disease. He further submitted that the affidavit of the Doctor, who recorded the history of Sarabjit Singh Dhindsa (now deceased), was not produced. He further submitted that, the OP only relied upon the last Medical Attendant`s Certificate (Annexure R-4), which was prepared by Dr. Sandeep S. Chhatwal, (M.D. Medicine), Gold Medalist, who did not examine the deceased, before or at the time of his death. He further submitted that, on the basis of such medical history, it could not be said that the deceased had been suffering from hypertension, for the last 7 years and had been taking alcohol, for the last 20 years. He further submitted that, as such, there was no suppression of material facts, at the time of filling up the proposal forms, in respect of the insurance policies in question, which were issued in favour of Sarabjit Singh Dhindsa. He further submitted that the District Forum was wrong in coming to the conclusion that the repudiation of the claim by the OP, was legal and valid. He further submitted that, the order passed by the District Forum, being illegal, is liable to be set aside. 12. On the other hand, the Counsel for the respondent, in both the appeals submitted that, it was not necessary for the OP to place, on record, the affidavit of the Doctor, who admitted the deceased, in the hospital, and who recorded his history, in the bed head ticket. He further submitted that the contract of insurance, is based on utmost good faith and, as such, the deceased was duty bound, at the time of taking the insurance policy, to disclose as to whether, he had been suffering from hypertension, for the last 7 years and whether, he had been taking alcohol, for the last 20 years, when such questions were put to him, at the time of filling up the proposal forms. He further submitted that, Annexure R-4 (Last Medical Attendant`s Certificate), prepared by Dr. Sandeep S. Chhatwal, was rightly taken into consideration, by the District Forum, for coming to the conclusion that there was suppression of material facts, by the deceased, at the time of obtaining the insurance policy. He further submitted that, it is also evident, from Annexure R-4 that, the history was given by the life insured himself, at the time, when he was admitted in the hospital, for the first time on 12.02.2006 and thereafter, on 01.03.2006. He further submitted that, the District Forum, was thus, right, in coming to the conclusion that, repudiation of the claim was legal and valid. It was further submitted that, the order passed by the District Forum, being legal and valid is liable to be upheld. 13. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in our considered opinion, the appeals are liable to be dismissed, for the reasons to be recorded hereinafter. It has been repeatedly held that the contract of insurance falls, in the category of contract of UBERRIMAE FIDEI meaning thereby a contract of utmost good faith between the parties. When information on a specific aspect, is asked for, in the proposal form, the insured is under a solemn obligation, to make a true and full disclosure of the information, on the subject, which is within his knowledge. Of course, obligation to disclose, extends only to the facts, which are known to the applicant, and not to what he ought to have known. The Hon`ble Supreme Court of India in United Insurance Co. Ltd. Vs. M.K.J. Corporation, III (1996) CPJ 8 (SC)= (1996) 6 SCC 428, laid down the principle of law, that it is a fundamental principle of Insurance Law that utmost faith must be observed by the contracting parties. Good faith forbids either party from non-disclosure of the facts, which the party privately knows, to draw the other into a bargain, from his ignorance of that fact, and his believing to the contrary. To the similar effect, the principle of law, was laid down in Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd., II (2000) SLT 323 = I (2000) CPJ 1 (SC)=(2000) 2 SCC 734. In C.A.No.5322 of 2007, P.C. Chakko & Anr. Vs. Chairman, L.I.C. & Others, IX (2007) S.L.T. 533 = IV (2007) ACC 773 (SC) = VII(2007) CLT 229 (SC), the Apex Court observed in Para 16 as under:- “the purpose of taking 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 face 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 policy holder 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 bearing, on the contract of Insurance, if discovered may lead to the policy being vitiated in law.” In Rampreeti Yadav Vs. U.P.Board of High School & Intermediate Education & Ors, V(2003) SCT 394= JT 2003 (Supplt.I) SC 25, the principle of law, laid down, was to the effect that it was a well settled law that mis-representation itself amounts to fraud in some cases. 14. Keeping in view the principle of law, laid down, in the aforesaid cases, now let us see, as to whether. in the instant case, the deceased, at the time of taking the insurance policy, suppressed the material facts, or had made a wrong declaration or not. Annexure R-1, is a copy of the proposal form, in respect of policy no. 20097263, for a sum of Rs.4.00 lacs, placed in Complaint Case No.543 of 2008– Gamdoor Singh Vs. ING Vysya Life Insurance Company. Similar R-1, is a copy of the proposal form in the other complaint. It is evident from R-1 that the deceased was asked the questions, as to whether, he was drinking alcohol, in any form. Similarly, he was also asked the question, as to whether, he had raised blood pressure. He gave answers to both these questions, in the negative, which were false to his knowledge, as is evident, from Annexure R-4 (Last Medical Attendant`s Certificate), submitted by Dr. Sandeep S. Chhatwal. In this document, the Doctor recorded, the primary cause of death as cardio respiratory arrest ,and secondary cause of death as alcoholic liver disease, cirrhosis hepatorenal syndrome, hepatic encephalopathy, h/o jaundice, difficulty in breathing, restlessness. Against the column, as to who gave history, the Doctor tick marked `Life Assured`. In Annexure R-4, the Doctor in clear-cut terms stated that the deceased had been taking alcohol, for the last 20 years and suffering from hypertension, for the last 7 years and was also suffering from pohomyelitis illness, since the age of 8 months. It is further evident from Annexure R-3, the death claim form that, initially the deceased was admitted on 12.02.2006, in Omni Hospital and thereafter, he was discharged. Lateron, he was admitted, in the aforesaid hospital on 01.03.2006 and expired on 02.03.2006, in the said hospital. It therefore, could not be imagined that, the deceased did not know that, he had been suffering from hypertension, for the last 7 years and had been alcoholic, for the last 20 years. The disease(s) from which he was suffering and which resulted into his death had direct nexus with his being chronic alcoholic. The proposal form was submitted by him. The deceased, thus suppressed the material facts, which had direct nexus with the disease(s) resulting into his death, at the time of taking the insurance policy, by giving wrong answers, referred to above, in the proposal form. The District Forum was thus, right in coming to such a conclusion. 15. The next question, that arises for consideration is, as to whether, in the absence of any affidavit of Dr. Sandeep S. Chhatwal, Annexure R-4 (Last Medical Attendant`s Certificate) could be taken into consideration or not. In Satwant Kaur Sandhu Vs. New India Assurance Company Ltd., IV (2009) CPJ 8 (SC), in para 22, the Apex Court held as under:- “Answers given by the proposer to the two questions were “Sound Health” and “Nil” respectively. It would be beyond anybody’s comprehension that the insured was not aware of the state of his health and the fact that he was suffering from diabetes as also chronic renal failure, more so, when he was stated to be on regular haemodialysis. There can hardly be any scope for doubt that the information required in the afore-extracted questions was on material facts and answers given to those questions, were definitely factors, which would have influenced and guided the respondent - Insurance Company to enter into the Contract of Mediclaim Insurance with the insured. It is also pertinent to note that, in the claim form, the appellant had stated that the deceased was suffering from Chronic Renal Failure and Diabetic Nephropathy from 1st June, 1990, i.e. within three weeks of taking the policy. Judged from any angle, we have no hesitation in coming to the conclusion that the statement made by the insured in the proposal form as to the state of his health was palpably untrue to his knowledge. There was clear suppression of material facts in regard to the health of the insured and, therefore, the respondent - insurer was fully justified in repudiating the insurance contract. We do not find any substance in the contention of learned Counsel for the appellant that reliance could not be placed on the certificate obtained by the respondent from the hospital, where the insured was treated. Apart from the fact that at no stage the appellant had pleaded that the insured was not treated at Vijaya Health Centre at Chennai, where he ultimately died. It is more than clear from the said certificate that information about the medical history of the deceased must have been supplied by his family members, at the time of admission, in the hospital, a normal practice in any hospital. Significantly, even the declaration in the proposal form by the proposer authorises the insurer to seek information from any hospital he had attended or may attend concerning any disease or illness which may affect his health”. 16. In the said case, the Apex Court, without insisting on the affidavit, in support of the certificate, issued by the Doctor, and by relying upon the same held that the insured was guilty of suppression of material facts, in disclosing the disease, she was suffering from. Similar principle of law, was laid down, in Puspha Chauhan Vs. Life Insurance Corporation of India, II (2011) CPJ 44 (NC). In view of the principle of law, laid down, in the aforesaid cases, it can certainly be held that, Annexure R-4, was rightly, taken into consideration, by the District Forum, even without the affidavit of the Doctor, who prepared the same. As stated above, these documents were prepared, on the basis of the patient record, in the bed head ticket, when he was admitted in Omni Hospital. The history was given by the insured, as is evident, from Annexure R-4. It was not that, the Doctor, of his own, recorded that the deceased had been suffering from hypertension, for the last 7 years and had been alcoholic, for the last 20 years. The blank Performa of Annexure R-4, was supplied by the insurance company. Since, it was proved that the material facts were suppressed by the deceased, at the time of, taking the insurance policy and the same had direct nexus with the disease he was suffering from, resulting into his death, the Insurance Company was right, in repudiating the claim, in terms of the policy. The District Forum was right in holding that even without the affidavit of the doctor, R-4 certificate could be relied upon. 17. The Counsel for the appellant placed reliance on LIC of India Vs. Joginder Kaur & Ors. II (2005) CPJ 78 (NC) and Surinder Kaur & Ors. Vs. LIC of India & Ors., II (2005) CPJ 32 (NC), in support of his contention that, in the absence of affidavit of the Doctor, Annexure R-4 could not be relied upon. In LIC of India Vs. Joginder Kaur & Ors. (supra), the claim was repudiated, by the Insurance Company, on the ground, that the deceased was suffering from Diabetes Mellitus, he was chronic alcoholic, and had an attack of jaundice. No evidence, in support thereof, was produced and, as such, the Hon`ble National Commission, came to the conclusion that, the claim of the complainant was rightly allowed by the State Commission. In Surinder Kaur & Ors. Vs. LIC of India & Ors. (supra), it was held that Doctor`s opinion based on hospital history was not sufficient to repudiate the claim. The principle of law, laid down, in these cases, by the Hon`ble National Commission, is not in consonance with the principle of law laid down in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd`s case (supra), decided by the Apex Court. In these circumstances, the principle of law laid down in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd`s (supra), by the Apex Court that, even in the absence of affidavit of the Doctor, who gave the certificate, regarding the cause of death of the deceased, and the disease, from which he was suffering and since when, he had been suffering therefrom, could be relied upon, any principle of law, laid down to the contrary by the Hon`ble National Commission in LIC of India`s and Surinder Kaur and Ors` cases (supra), cannot hold the filed. So, no help therefrom, can be drawn, from these authorities, by the appellants. 18. The order passed by the District Forum does not suffer from any illegality or perversity, warranting the interference of this Commission. 19. For the reasons recorded above, both the appeals, being devoid of merit, must fail, and the same are dismissed with costs, quantified at Rs.3,000/- , each (i.e. in each appeal). The order of the District Forum is upheld. 20. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room. Pronounced. 2nd May, 2011. Sd/- [JUSTICE SHAM SUNDER] PRESIDENT Sd/- [NEENA SANDHU] MEMBER
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
