PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The deceased Late Smt. Zaibunnisa Sheikh died on 06/11/03 leaving behind her two sons Shabbir Haddi Sheikh & Nasir Haddi Sheikh (present Complainant). Deceased Smt. Zaibunnisa Sheikh was residing with Rameshwar Gupta alongwith her two sons. Shri. Rameshwar Gupta and Complainant’s two sons were engaged in the business of garments weaving on contract basis. Shri. Rameshwar Gupta had taken L.I.C. Policy bearing Policy No.891413478 dtd.28/09/2002 for Rs.1 Lac and also L.I.C. Policy No.891416548 dtd.18/11/02 for Rs.2,50,000/- for deceased elder son Shabbir H. Sheikh and the Complainant Nasir Husain Sheikh bearing Policy No.891414593 dtd.08/11/02 for Rs.2,50,000/-. All these policies were taken through the agent Shri. Yashwant Patil who was well known to the family. Agent Shri. Yashwant Patil insisted to take insurance policy for deceased Smt. Zaibunnisa Sheikh and told various benefits including to avail loan facility by pledging the same. As per advice of agent Shri. Yashwant Paitl, said family took two policies one bearing Policy No.891420383 under Plan 151-15(10) for assured sum of Rs.8 Lacs and another Policy bearing No.891420585 under Plan 151-10(6) for assured sum of Rs.5 Lacs both effective from 28/03/2003. Alongwith complainant, the Complainant had produced xerox copies of the aforesaid two policies at Exh.‘A’ & ‘B’.
2) It is the case of the Complainant that his mother Smt. Zaibunnisa Sheikh died due to Jaundice and further complications. After her death claim preferred under aforesaid two policies taken by the deceased to L.I.C., but both the claims were repudiated on trivial and erroneous grounds defeating ultimate motive and purpose of taking policies. Shri. Shabbir H. Sheikh, elder son of the deceased Smt Zaibunnisa Sheikh is at Hyderabad for business purpose and therefore, the Complainant alone was authorized to pursue the claim from the Opposite Party and therefore, he has filed this complaint.
3) It is submitted that deceased Smt. Zaibunnisa Sheikh was an illiterate woman and somehow she can sign. The proposal form was filled-up by the insurance agent Shri. Yashwant Patil, in English and Insured Smt. Zaibunnisa Sheikh has only singed it. The Complainant produced copy of proposal form at Exh.‘C’. All the necessary formalities including medical examination, was done by the said agent and after satisfying, the Opposite Parties have issued both the policies after accepting necessary premium.
4) It is submitted that prior to issue these policies, the deceased Smt. Zaibunnisa Sheikh was enjoying good health. She never suffered or treated for any serious ailment, prior to the proposal form of the said policies. Smt. Zaibunnisa Sheikh has got affected by Jaundice and during investigation and clinical examination she was detected with Duodenitis about which she and her family members were not at all aware and first time they came to know about the ailment. But thereafter Smt. Zaibunnisa Sheikh did not recover from Jaundice, which became more complicated and had to be admitted in Nanavati Hospital on 06/10/03. After few days of treatment in the said hospital for Jaundice, Smt. Zaibunnisa Sheikh died on 06/11/03 due to Cardio respiratory arrest due to aroma and asuptiumia. The Complainant has produced photo copies of indoor case paper of Dr. Balabhai Nanavati Hospital at Ehx.‘D’.
5) After death of mother the Complainant persuaded for the claim by filing claim form under aforesaid two mediclaim policies with the Opposite Party. The Complainant had completed all the formalities of documentation etc. Inspite of submissions of all the necessary documents, the Opposite Parties have repudiated Complainant’s claim on flimsy and erroneous grounds by letter dtd.31/03/04. The Complainant produced copy of repudiation letter dtd.31/03/04 at Exh.‘G’. The Complainant had made representation against repudiation of claim to the Divisional Manager of Opposite Party. However, Senior Divisional Manager of the Opposite Party refused to review the decision of repudiation of claim.
6) It is submitted that Opposite Party has repudiated valid and bonafide claim of Complainant on the trivial and malafide grounds referring questionary column no.11 of proposal form. The Complainant and his family members repeatedly made it clear to the Opposite Parties that the Insured was enjoying good health and she was not treated, admitted in any hospital for any ailment prior to the submitting of proposal form for these policies. It was further pointed out that Insured was illiterate woman and after medical examination Opposite Parties had issued aforesaid two policies and therefore, Opposite Party is estopped from raising such plea as per Doctrine of estoppel.
7) It is submitted that the Complainant and his family members made it clear to the Opposite Parties that after issuing of policies to the deceased insured, deceased insured got fever & pain which after diagnosis was confirmed as Jaundice and later detected with Duodenitis about which neither insured nor her family members were aware. According to the Complainant, deceased life insured Smt. Zaibunnisa Sheikh was affected by Jaundice and the said ailment was detected only after submitting of proposal form and issuance of policies by the Opposite Parties and therefore, it is absolutely erroneous and malafide on the part of Opposite Party to repudiate the claim on the ground of suppression of material information about the health by the insured. As the Opposite Parties have repudiated claim on erroneous grounds, the Complainant has filed this complaint and claimed Rs.8 Lacs under Policy No.891420583 towards sum assured and all benefits thereon with interest @ 18% p.a. The Complainant has also claimed Rs.5 Lacs under policy No.891420585 for sum assured and all benefits thereon with interest @ 18% p.a. The Complainant has claimed Rs.25,000/- as compensation for physical, mental and economical suffering and Rs.10,000/- towards cost of this complaint. Total claim of Complainant is Rs.13,35,000/-.
8) It is submitted that cause of action for filing of this complaint arose on 06/11/03 when death of Insured Smt. Zaibunnisa Sheikh took place. Thereafter on 31/03/04 and 11/01/05 when Complainant’s claim was repudiated and on 30/12/05 when Insurance Ombudsman passed order of repudiation of claim.
9) In support of complaint, the Complainant Nasir Husain Sheikh has filed of his affidavit and copies of evidence at Exh.‘A’ to ‘M’.
10) Opposite Party No.1 & 2 have filed their common written statement and thereby resisted claim of the Complainant contending interalia that complaint is false, baseless and vexatious and therefore, deserves to be dismissed. It is submitted by the Opposite Parties that contract of insurance is per se different from ordinary forms of contract, which comes within the purview of the Indian Contract Act, 1872. The contract of insurance is based on the principles of ‘Uberima fide’ i.e. utmost good faith. Insurance contract is based on the information provided by one party to the contract i.e. the Proposer/Life Assured. Based on the information provided by the proposer in the proposal form as well as information gathered from the medical examiner’s report to whom Proposer divulges information about the state of his health, the Opposite Parties undertakes to write the risk based solely and solely on the information furnished by the Complainant. It is submitted that concealment or non-disclosure of any information vitally affects the underwriting decision. It is submitted that contract of insurance is null and void, as per the terms of the policy condition, singed by the proposer, as it is found that life assured had concealed the material information.
11) It is submitted that after carefully considering all record in respect of the health status of the deceased life assured in good faith, Opposite Parties have repudiated the claim of the Complainant by speaking and reasoned order. Therefore, there is no deficiency in service on the part of Opposite Parties and the complaint deserves to be dismissed.
12) It is submitted that cause of action has arisen on 13/03/04 i.e. the date on which the claim of the Complainant was repudiated and further that the matter was not pending before any judicial authority for reconsidering the repudiation order and therefore, the Complainant could have filed present complaint within period of two years from 13/03/04. The complaint is not filed within prescribed period of limitation. Therefore, complaint is barred by law of limitation and deserves to be dismissed.
13) It is submitted by the Opposite Party that the life assured Smt. Zaibunnisa Sheikh had submitted proposal form dtd.04/03/03 for insurance on her own life and personal statement regarding health dtd.31/03/03 alongwith Agents Confidential Report dtd.04/03/03 and Medical Examiners Confidential Report dtd.04/03/03 to the Branch No.891 of the Opposite Parties. Opposite Parties have produced aforesaid documents at Exh.‘A’ to ‘D’ alongwith written statement. Considering the proposal papers the Branch No.891 had issued two policies bearing No.891420583 and 891420585 both dtd.27/05/03 under New Jeevan Shree with Guaranteed Addition and Loyalty Addition respectively for Rs.8 Lacs and Rs.5 Lacs. Copies of the said policies are produced at Exh.‘E’ & ‘F’.
14) It is submitted that thereafter on 15/01/04, Opposite Party received claim statement dtd.12/01/04, Certificate of Identity and Burial or Cremation dtd.12/01/04, Medical Attendance Certificate dtd.12/01/04, Statement of Death Registry dtd.06/11/03 and Death Certificate of Insured Smt. Zaibunnisa Sheikh. Opposite Parties have produced copies of the aforesaid documents at Exh.‘G’ to ‘K’ respectively. Opposite Party vide letter dtd.22/01/04, called upon the Complainant to submit the affidavit since the name of the deceased life assured was mentioned differently in different document. Opposite Party once again vide their letter dtd.20/02/04 called upon the Complainant to comply with some requirements.
15) It is submitted that since the claim under these polices had arisen within period of 2 years from the date of first premium receipt and or date of policy and therefore, investigation of the cause of death of life assured was initiated. Opposite Parties has appointed Shri. V.C. Sthalekar, Branch Manager, to investigate the cause of death and accordingly, he submitted his report dtd.21/02/04. Opposite Parties have produced copy of the Claim Enquiry Report alongwith written statement at Exh.‘O’. In the Claim Enquiry Report it was concluded that the claim under these policies should be repudiated as the deceased concealed the material facts. The Opposite Parties has also obtained case papers of hospital treatment dtd.24/02/04 issued by Dr. Nanavati Hospital on 08/08/03 in which it is mentioned that case of itching all over body, anorexia, nausca, yellow discolouration of eye/urine/nails and got discharged on 12/08/03. As per indoor case papers deceased life assured had history of tobacco chewing & obesity, which was narrated by her son Shabbir Sheikh. Deceased life assured was also got admitted in Nanavati Hospital on 06/10/03 with history of Jaundice since 3 to 4 months, took treatment for few days but no improvement. As per the case papers dtd.06/10/03 and as per the own signed statement of deceased life assured she had attained the menopause since last 4-5 years. As per own statement of deceased life assured the period of menopause if reckoned be dated back to the year 1998-1999. The facts of chewing tobacco, obesity & menopause since last 4-5 years were not disclosed by the deceased life assured in her proposal form dtd.04/03/03. There were specific question such as, question no.11 (a), (e), (h) and (i) and in her Proposal Form regarding health dtd.31/03/03 and in statement regarding health question no.4, 5 (a) (i). Aforesaid material information was not correctly disclosed. According to the Opposite Parties deceased life assured was suffering from Periampullary (i.e. vaginal cancer) which was directly related to the facts she withheld about her menstrual cycle. If the aforesaid fact was brought to the knowledge of Opposite Party either they would have called for further medical papers or would not have issued the policies or would have issued the same with altered conditions. At the time of submitting proposal form and personal statement of deceased, the deceased life assured was very much aware that she was having habit of chewing tobacco and obesity menopause last 4-5 years back though there were specific question to disclose the same in the proposal form and personal statement she chose not to disclose the same. Considering aforesaid facts Opposite Parties decided to repudiate the claim of the Complainant under the two policies and accordingly, said decision was informed to the Complainant vide their two letter both dtd.31/03/04 respectively. Opposite Parties have produced copies of repudiation letters dtd.31/03/04 at Exh.‘Q’ & ‘R’ respectively. The Complainant’s claim was repudiated on account of life assured withholding the correct information which were the material facts regarding her health at the time of affecting the assurance. Therefore, the Opposite Parties are not liable to pay anything under the said policies to the Complainant.
16) It is submitted that the Complainant had made representation to the Zonal Manager, Western Zonal Office with a request to reconsider the decision of the Opposite Parties. The aforesaid authority examined the said matter a fresh and uphold the decision of the Opposite Party and it was informed to the Complainant vide two letters both dtd.11/01/05. Thereafter, the Complainant had approached Insurance Ombudsman and the Insurance Ombudsman vide order dtd.30/12/05 upheld decision of the Opposite Parties. The Opposite Party has produced copy of Insurance Ombudsman order dtd.30/12/05 at Exh.‘S’. It is submitted that there is no deficiency or unfair trade practice on the part of Opposite Party.
17) Opposite Party have specially denied allegations made in the complaint and submitted that complaint deserves to be dismissed with cost. Alongwith written statement the Opposite Party has produce copies of documents at Exh.‘A’ to ‘S’.
18) The Complainant has filed affidavit of evidence and written argument. Opposite Party has also filed written argument on 12/01/2010. The Complainant filed an application for condonation of delay. Opposite Party has filed reply to the delay condonation application and thereby opposed Complainant’s prayer for condonation of delay. After hearing Ld.Advocate of both the parties, application for condonation of delay was allowed by this Forum by order dtd.08/10/2010. The Complainant submitted application for amendment in the names of Opposite Party stated in the title of the Complaint. Ld.Advocate for Opposite Party gave no objection to amend the title clause of the complaint. Accordingly, amendment application was allowed and Complainant carried out necessary amendment. We heard Ld.Advocate Mrs. Anita Marathe for the Complainant and Ld.Advocate Mr. Navinkumar for the Opposite Party.
19) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Parties ?
Findings : No
Point No.2 : Whether the Complainant is entitled for reliefs as prayed for ?
Findings : No
Reasons :-
Point No.1 :- Following facts are undisputed facts that Smt. Zaibunnisa Sheikh (since deceased) had submitted proposal form dtd.04/03/03 for insurance on her own life to the Opposite Party. She had submitted personal statement regarding health dtd.31/03/03. Insurance Agent Confidential Report dtd.04/03/03 and Medical Examiners Confidential Report dtd.04/03/03 received by the Opposite Parties Branch No.891 are produced on record by Opposite Parties at Exh.‘A’ to ‘D’ alongwith written statement. Considering the proposal submitted by the life assured Smt. Zaibunnisa Sheikh, Opposite Parties issued two policies bearing No.891420583 & 891420585 both dtd.27/05/03 under New Jeevan Shree with guaranteed addition and loyalty addition. Policy No.891420583 was issued under Table & Term of 151/15/10 for Rs.8 Lacs and second policy bearing No.891420585 under Table & Term of 151/10/6 for Rs.5 Lacs. The Complainant has produced copies of the policy alongwith complaint at Exh.‘A’ & ‘B’ and Opposite Parties have also produced copies of the policy alongwith terms & conditions at Exh.‘E’ & ‘F’ respectively. It appears from the documents produced on record that when deceased life assured Smt. Zaibunnisa Sheikh submitted her proposal form that time she was about 35 years old. It is mentioned in the document produced by the Complainant that life assured Smt. Zaibunnisa Sheikh was educated upto 8th standard and her annual income was Rs.71,483/-. Proposal form bears signatures of Smt. Zaibunnisa Sheikh.
It is alleged by the Complainant that insurance agent Shri. Yashwant Patil insisted life assured Smt. Zaibunnisa Sheikh to take two insurance polices. The proposal form was filled-up by Shri. Yashwant Patil in English and insured Smt. Zaibunnisa Sheikh has only put her signature. All necessary formalities including medical examination was done by agent and after satisfaction Opposite Parties have issued polices after accepting necessary premium.
It is the case of the Complainant that after to issuance of aforesaid policies Smt. Zaibunnisa Sheikh unfortunately got affected by Jaundice and during investigation and clinical examination she was detected with Duodenitis about which neither Smt. Zaibunnisa Sheikh nor her family members were aware about it, Smt. Zaibunnisa Sheikh did not recover from Jaundice, which became more complicated and she was admitted in Nanavati Hospital on 06/10/2010. While Smt. Zaibunnisa Sheikh was taking treatment for Jaundice at Nanavati Hospital on 06/11/03 her death took place due to Cardio respiratory arrest due to aroma and asuptiumia. After her death the Complainant submitted claim forms under both policies but Complainant’s claim were rejected by the Opposite Parties erroneously on alleged ground of suppression of material facts.
It is submitted on behalf of Opposite Party that in the year 2003, Smt. Zaibunnisa Sheikh submitted proposal form when she was about 35 years old. Smt. Zaibunnisa in the proposal form and in her statement regarding health has deliberately concealed material facts. In support of the aforesaid contention Ld.Advocate Shri. Navinkumar has referred to the proposal form submitted by the life assured Zaibunnisa and pointed out answers given to question no.11(a),(e), (h) & (i) in the proposal form. It is further submitted that answers given to the specific question no.4 & 5(q) (i) were false. It is submitted that in the proposal form Smt. Zaibunnisa Sheikh has stated that she was never suffered any disease. Further she has stated that she is not in habit of consuming tobacco in any form. She has given her last date of menstruation on 12/03/03. In personal statement, regarding health to specific question in para no.5 are meant for females only. Deceased life assured stated that she was having menstruation period regularly and her last date of menstruation as 12/03/2003. According to Ld.Advocate for Opposite Party in the medical examination deceased life assured did not disclose material information regarding health to the panel doctor. It is submitted that after short period from taking of medical policy, life assured Smt. Zaibunnisa Sheikh was admitted in Nanavati Hospital on 08/08/03 and 06/10/03. Ld.Advocate for the Opposite Party has referred indoor case paper dtd.08/08/03 submitting on that day at the time of admission in the Nanavati Hospital of the Complainant, her son Shabbir gave history of tobacco chewing. Further, he has referred to another indoor registration paper dtd.06/10/03 of Nanavati Hospital submitting that on 06/10/03 when Complainant was admitted in the Nanavati Hospital she herself gave history to the concerned doctor that menopause since 4-5 years. Deceased life assured Zaibunnisa has put her signature below aforesaid history given by her to the concerned doctor. According to the Ld.Advocate for the Opposite Party, as per history given by life assured Zaibunnisa Sheikh, she had menopause 4-5 years prior to 06/10/03. That time Smt. Zaibunnisa about 35-36 years old. Attaining of menopause was within personal knowledge of life assured Zaibunnisa. Attaining of menopause at the age of about 30 years is rare and abnormal. However, in her proposal form submitted to the Opposite Party on 04/03/03, she deliberately suppressed material fact that she had attained menopause about 3 years prior to the submission of proposal form. On the contrary she has given misleading information that last menstruation was on 12/02/03. Further, she has not disclosed her habit of chewing tobacco in her statement regarding health. Deceased Smt. Zaibunnisa Sheikh did not disclosed aforesaid material facts regarding health to the Opposite Party in her proposal form or in a statement regarding her health. Insurance of contract is based on utmost good faith and as deceased Zaibunnisa obtained two policies of huge amount by deliberately suppressing material facts regarding her health, claim submitted by the Complainant on the basis of said policies were rejected by Opposite Party.
It is submitted by Advocate Navinkumar that before rejection of the claim, the Opposite Party had carefully gone through the medical case papers produced by the Complainant. Further as death of life assured Zaibunnisa occurred within period of 2 years from the date of issuance of policies or payment of first premium, necessary enquiry was initiated, by appointing V.C. Sthalekar as an Enquiry Officer. Opposite Party has produced report of Enquiry Officer at Exh.‘N’. Enquiry Officer after conducting enquiry has given his opinion that claim under two policies may be repudiated and thereafter Opposite Party vide their letters both dtd.31/03/04 repudiated claim of the Complainant by giving detailed reasons for repudiation of the claim. Copies of the repudiation letters are produced on record. In the repudiation letter it is specifically stated to relevant questions in clause 11(a) (e)(h) & (i) life assured Smt. Zaibunnisa has given wrong answers. Further she has deliberately given false answers to the questions 4 & 5 (a) (i) in personal statement regarding health. It is specifically submitted that deceased Smt. Zaibunnisa Sheikh in her proposal form and statement regarding her health has not correctly disclosed material facts regarding her health.
Ld.Advocate Mrs. Marathe for the Complainant has submitted that there is no evidence on record to support the allegation that deceased Zaibunnisa had habit of chewing tobacco. In the admission case papers so called history tobacco chewing was given by Shabbir and not deceased Zaibunnisa. Further it is submitted that Opposite Party has placed much reliance on so called history of menopause allegedly given by the Zaibunnisa to the Doctor at the time of her admission in the Nanavati Hospital on 06/10/03. However, in fact there is no evidence on record to prove that deceased Zaibunnisa attained menopause since 4-5 years prior to 06/10/03. It is submitted that only with intention to avoid liability of payment of compensation Opposite Party has rejected claims of the Complainant on false ground. It is submitted that in this case concerned doctor who recorded history have not filed their affidavit. Further, the proposal form was filled by the insurance agent himself. Deceased Zaibunnisa was not knowing English. Some how she has put her signature. There is nothing on record that contents of the proposal form and or statement regarding health were read over and explained to the deceased Zaibunnisa. Panel doctor of Opposite Party had examined Smt. Zaibunnisa and submitted his confidential report to Opposite Party and the Opposite Party issued two policies. According to Ld.Advocate, considering facts decision of rejection claim taken by the Opposite Party is erroneous and illegal. In support of her contention, Ld.Advocate for the Complainant has relied upon number of reported judgement. Ld.Advocate Mr. Navinkumar for the Opposite Party has submitted that decisions relied upon by the Complainant are not applicable to the present case as facts of this present case are totally different than the facts stated in the reported judgement relied upon by the Complainant. Ld.Advocate for the Opposite Party has also relied upon number of reported decision copies of which are produced by him alongwith list to support and justify legality and correctness of the decision of repudiation of claim taken by the Opposite Party.
In this case after repudiation of claim by the Opposite Party, the Complainant had approached Insurance Ombudsman. The Insurance Ombudsman vide his order dtd.30/12/05 rejected claim of the Complainant. The Opposite Party has produced copy of the order dtd.30/12/05 passed by the Insurance Ombudsman. It appears that Insurance Ombudsman after carefully consideration of the record produced before him rejected case of the Complainant.
It appears from the medical case papers that on 06/10/003, death of Smt. Zaibunnisa Sheikh took place in Nanavati Hospital due to the Periampullary, Carcinoma, Cardio respiratory arrest, Acute Respiratory Distress Syndrome (ARDS) & Septicemia. Deceased Smt. Zaibunnisa submitted proposal for insurance on her own life on 04/03/03. After receipt of premium, Opposite Party issued two policies commencing from 28/03/03. Death of Smt. Zaibunnisa took place within period of 8 months form the commencement of the aforesaid two policies. In the proposal form she had given answers to question no.11 (a), (e), (h) and (i) in the negative and stated that her health is good. It appears that in her Personal Statement regarding health dtd.31/03/03 to question no.4, 5 (a) (i) she has deliberately given false answers. She has stated that she was having menstruation regularly and had given last date of menstruation on 12/03/03. However, on 06/10/03 when she was admitted in Nanavati Hospital she herself gave history of menopause since last 4-5 years. She had also given history of illness to the concerned doctor. History given by Mrs. Zaibunnisa to the concerned doctor in Nanavati Hospital at the time of admission on 06/10/03 assumes much importance and can be accepted as reliable. Attaining of menopause was within the personal knowledge of Smt. Zaibunnisa. As per history given by Zaibunnisa, it appears that she had attained menopause about at the age of 32 years which is rather abnormal. Regular menstruation period is treated as a one of the sign of good health. Therefore, in case of insurance proposal of a female specific question regarding menstruation are put in the proposal form. Considering the cause of death, history of menopause since 4-5 years given by the deceased at the time of admission in the Nanavati Hospital on 06/10/03, the fact that deceased applied for two insurance policies of huge amounts and the death occurred during short period from the commencement of the insurance policy, it appears that deceased Zaibunnisa deliberately suppressed material facts regarding her health at the time of obtaining of aforesaid policies from the Opposite Party and therefore, rejection of claim by the Opposite Party cannot be said as unjust or improper. Therefore, we hold that Complainant has failed to prove deficiency in service on the part of Opposite Party. Hence, we answer point no.1 in the negative.
Point No.2 :- For the reasons discussed above, decision of repudiation of insurance claim taken by the Opposite Parties in respect of two policies of deceased Zaibunnisa Sheikh appears to be just, legal and proper. Therefore, the Complainant is not entitled to any relief as prayed for against Opposite Party. Hence, we answer point no.2 in the negative.
For the reasons discussed above the complaint deserves to be dismissed. Hence, we pass following order -
O R D E R
i.Complaint No.106/2007 is dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
