Punjab

StateCommission

A/11/1106

ICICI Prudential Life Insurance Company Ltd. - Complainant(s)

Versus

Kuldeep Kaur - Opp.Party(s)

Karandeep Singh Cheema

12 Aug 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1106 of 2011

 

 

                                                Date of Institution: 19.07.2011

                                                Date of Decision : 12.08.2015

 

1.      ICICI Prudential Life Insurance Company Ltd., Shimla    Complex, Water Works Road, Mansa, through its Manager.

 

2.      Chairman/Vice President, ICICI Prudential Life Insurance   Company Limited, ICICI Prulife Towers, 1089, Appasaheb          Maratha Marg, Prabhadevi, Mumbai 400 035.                                                                                                                                                                                                                                                                                             ….. Appellants/Opposite parties  

                                      Versus

 

Smt. Kuldeep Kaur wd/o Sh. Rajinder Singh S/o Sh. Jagdev Singh, Preet Nagar, Ward No.1, Backside Raman Cinema, Mansa.

 

                                                          … Respondent/Complainant.

 

 

First Appeal against order dated 21.04.2011 passed by the District Consumer Disputes Redressal Forum,  Mansa

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                   :         Sh.K.S Cheema, Advocate  

          For the respondent                :         Sh. J.K.Singla, Advocate

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging order dated 21.04.2011 of District Consumer Disputes Redressal Forum Mansa, accepting the complaint of the complainant by directing the OPs to pay the amount of Rs.2,50,000/- in respect of insurance policy, besides Rs.50,000/- as compensation for mental harassment and Rs.10,000/- as costs of litigation. The instant appeal has been preferred against the same by OPs now appellants.

2.      The complainant Smt. Kuldeep Kaur has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs, on the averments that her husband Rajinder Singh obtained insurance policy bearing no.04508688 in the year 2007 from the OPs. Her husband Rajinder Singh obtained another policy bearing no.13398843 in February 2010 from OP No.1 and paid Rs.50,000/- by withdrawing it in partial. He paid premium of Rs.50,000/- to OP and the assured amount was of Rs.2,50,000/-. The complainant was appointed, as nominee by her husband Rajinder Singh. Her husband Rajinder Singh remained ill and died on 23.06.2010 and his postmortem was conducted. The complainant lodged the insurance claim with the OPs after death of her husband. OPs passed the insurance claim of the policy no. 04508688, whereas OPs repudiated the insurance claim of the complainant pertaining to policy no.13398843. The complainant has alleged that OP wrongly repudiated the insurance claim of the complainant pertaining to policy no.13398843. Legal notice was served upon by complainant on OP on 25.11.2010, but it evoked no response thereto. The complainant has, thus, filed the present complaint directing the OPs to pay the insurance claim of Rs.2,50,000/- to her, besides compensation of Rs.20,000/- and Rs.10,000/- as costs of litigation.

3.      Upon notice, OPs filed written reply and contested the complaint of the complainant vehemently. It was pleaded in the written reply by the OPs that life assured Rajinder Singh made wrong statement in declaration given by him, while taking the policy no.13398843 with regard to his state of health. It was further pleaded by OPs that life assured did not disclose the fact that he was suffering from the pre-existing disease of Hepatitis C and alcohol related Cirrhosis of liver since two years before taking the policy in question. The life assured Rajinder Singh had not disclosed that he was an alcoholic and had a habit of consumption of even opium for the last two years before taking the policy. OPs further averred that life assured died just within five months after taking the policy in question. On account of suppression of material facts fraudulently by the life assured regarding his state of health, while taking insurance policy from OPs, the OPs repudiated the insurance claim. It was further averred that policy was duly received by Rajinder Singh and he had not opted for opting out of the policy within the Free Look Period. OPs further averred that 'Contract of Insurance' is based on utmost good faith and anybody making wrong declaration deliberately regarding health of the assured would lead to vitiate the Contract of Insurance. OPs contested the complaint even on merits on the above-referred grounds and prayed for its dismissal.

4.      The complainant tendered in evidence, the affidavit of complainant Ex.C-1 along with copies of documents Ex.C-2 to C-11.

As against it, OPs tendered in evidence the affidavit of Ms.Sudha Sharma, Senior Legal Manager along with copies of documents Ex.R-1 to Ex.R-3 and Ex.R-5. On conclusion of evidence and arguments, the District Forum, Masna, accepted the complaint of the complainant directing the OPs to pay the insured amount of Rs.2,50,000/- to complainant along with interest @ 9% per annum, besides Rs.50,000/- for mental harassment and Rs.10,000/- as costs of litigation. Dissatisfied with the order of the District Forum Mansa dated 21.04.2011, the OPs now appellants have preferred this appeal against the same.

5.      We have heard learned counsel for the parties at considerable length and have also examined the record of the case. We have examined evidence on the record of the case, as well in this case. The affidavit of complainant Kuldeep Kaur is Ex.C-1 on the record in support of her averments. Ex.C-2 is policy no.04508688. Ex.C-3 is policy no.13398843 and this policy in dispute was a for a period of 10 years. Ex.C-4 is first premium receipt and statement of account. Ex.C-5 is legal notice. Ex.C-6 is death certificate of Rajinder Singh proving his date of death i.e. 23.06.2010. Ex.C-7 is postmortem report of the Rajinder Singh husband of the complainant. Ex.C-8 to Ex.C-11 are the postal receipts

6.      To refute this evidence of complainant, OPs tendered in evidence proposal form of Rajinder Singh, while taking the policy Ex.R-1 dated 12.02.2007. Ex.R-2 is proposal form of second policy. Ex.R-3 is copy of the discharge summary issued by DMC & Hospital Ludhiana with regard to life assured Rajinder Singh. Ex.R-4 is letter addressed to complainant regarding repudiation of the insurance claim. Ex.R-5 is affidavit of Ms.Sudha Sharma Senior Legal Manager on the record.

7.      From hearing respective submissions of counsel for the parties at considerable length and from evaluation of the evidence on the record, we have come to this conclusion that point for adjudication in this case is whether the life assured Rajinder Singh deliberately made misstatement in the declaration form regarding his state of heath, when he took the insurance policy. The submission of counsel for the appellants in this appeal is that life assured Rajinder Singh was suffering from the disorder of liver cirrhosis and was opium addict as well before taking the insurance policy and he has not disclosed this fact fraudulently, when he took the insurance policy, while filling up the proposal form thereof. On the other hand, the submission of counsel for the complainant now respondent in this appeal is that the appellants heavily rely upon the photocopy of the discharge summary of Rajinder Singh issued by DMC Hospital & College Ludhiana. In this regard, it is vehemently argued that photocopy cannot be read in evidence under Indian Evidence Act, as it is not admissible in evidence. We find that the Consumer Protection Act is complete Code itself and Indian Evidence Act is not applicable to the procedure before the Consumer Forums. Summary procedure is applicable in such type of cases before Consumer Forum. The District Forum elaborately dealt on this point while invoking the provisions of Indian Evidence Act and relied upon the observations of the Apex Court in some judgment "Malay Kumar Ganguly versus Dr. Sukumar Mukherjee and others, reported in 2009(V) RCR Criminal Page 1. We find that cited judgment has arisen out of Order 13 Rule 4 and 7 of Code of Civil Procedure. That judgment related to Civil Suit, where the provision of Code of Civil Procedure and Indian Evidence Act are strictly applicable. Here, only selected procedure of Code of Civil Procedure has been made applicable under the Consumer Protection Act. Strict procedure under the Evidence Act is not applicable before us. We have to evaluate, as to whether photocopy of the discharge summary issued by DMC Hospital & College Ludhiana can be relied upon in this case or not in the facts and circumstances of the case. We find that OPs tendered in evidence the discharge summary Ex.R-3 on the record. No objection was raised thereto by the complainant before District Forum that this document cannot be exhibited on the record. Once the OPs have tendered in evidence, without any objection on the part of the complainant, therefore, we are unable to exclude it from consideration. No such objection was taken at that stage, vide order dated 13.04.2011 of District Forum regarding tendering in evidence the discharge summary of the DMC Hospital and College Ludhiana.

8.      We find that the discharge summary Ex.R-3 is the record of this fact that Rajinder Singh life assured was admitted on 27.5.2010 in the above hospital and was discharged on 06.06.2010. His diagnosis recorded as HCB, alcoholic related cirrhosis. From the discharge summary, it is proved that life assured was opium addict for the last two years, as recorded in discharge summary.  We further find that the postmortem report Ex.C-7 was tendered in evidence by the complainant himself. Postmortem report Ex.C-7 is document of the complainant and complainant cannot back out of it. As per the information furnished to doctor by the police,  the life assured died due to severe jaundice, Hepatitis C and liver cirrhosis. As per Medical Literature, liver cirrhosis does not develop overnight and it takes many years to develop the alcohol related liver cirrhosis. Even it is recorded in discharge summary Ex.R-3 that life assured was opium addict for the last two years, as well. The policy in question was taken in February 2010 and life assured was admitted in the hospital for his treatment on 27.05.2010. We can safely infer from the above documents that the life assured was already suffering from liver cirrhosis before taking the policy and this fact is substantiated on the record by the above-referred record of postmortem report and discharge summary. The life assured made wrong declaration intentionally and fraudulently in the proposal form regarding his state of health of this policy, vide Ex.R-1 and Ex.R-2 on the record.

9.      The counsel for the complainant referred to law laid down in Roshan Begum vs. Life Insurance Corporation of India, reported in 2009(2) CLT Page 143 by National Commission New Delhi. We find that the cited authority is distinguishable from the fact situation of the case. Even in the postmortem report, which is document of the complainant on the record, the cause of death is recorded, as liver cirrhosis, which is alcohol related disease of life assured.   Similarly, the law laid down in LIC of India and Anr. Versus.  Kamla Devi, reported in 2009(4) CLT Page 711 and Life Insurance Corporation of India and Anr. Versus  Gowramma , reported in 2009(4) CLT Page 548-549 and law laid down by our State Commission in Ved Parkash Kapoor ..versus. National Insurance Company, Amritsar, in First Appeal No.537 of 1997, decided on 28th April 1998, has been found distinguishable from the fact situation of the case.

10.    On the other hand, Apex Court has held in Satwant Kaur Sandhu versus  New India Assurance Company, reported in 2009 CTJ 956 (Supreme Court) (CP) that in case of deliberate concealment of a material fact by the insured, the repudiation of insurance contract is justified. The contract of insurance is uberrima fides (based on utmost good faith) and any breach thereof makes it invalid. The Apex Court has also held in Life Insurance Corporation of India ..versus.. Smt. G.M Channabasemma, reported in 1991 AIR (SC) 392 that life assured is under obligation to make full disclosure of the material fact at the time of taking the policy. The allegations of assured being guilty of making false representation and suppressing material facts deliberately stand established by the Corporation.  This is a case of suppressio veri on the part of complainant in this case. We are of this view that OPs now appellants have discharged the burden of proof in this case about the above proposition of facta probanda. The insured was also suffering from liver cirrhosis, which is alcohol-induced disease and he was also opium addict for the last two years before taking the insurance policy. This is the clear case of suppressio veri and suggestio falsi on the part of the life assured nullifying the Contract of Insurance. The order of the District Forum to the contrary is not sustainable in this appeal and merits reversal.

11.    In the light of our above discussion, we accept the appeal of the appellants and by setting aside the order of the District Forum Mansa dated 21.04.2011 under challenge in this case., the complaint of the complainant stand dismissed.

12.    The appellant has deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal and appellant has also deposited another amount of Rs.1,40,000/-, vide receipt dated 26.08.2011. Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the appellant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order.

13.    Arguments in this appeal were heard on 06.08.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                          (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

August 12,  2015.                                                               

(ravi)