PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief present dispute is as under –
Opposite Party No.1 - Life Insurance Corporation of India is undertaking of Government of India, doing business of insurance policies. Opposite Party No.2 is Agent of Opposite Party No.1. The Complainant is father of deceased Alvin Soloman Mitra. The Complainant No.2 is sister of life assured – deceased Alvin S. Mitra.
2) Deceased Alvin Soloman Mitra had taken Endowment Assurance policy bearing No.904586036 with profit + accident benefit to the tune of sum of Rs.3 Lacs, vide Proposal No.2932, dtd.28/07/2001. Date of maturity of said policy is in 09/08/2022. Quarterly premium was of Rs.3,517/- which was paid till the month of May, 2003. According to the Complainant, due to the financial hardship, Insured late Alvin S. Mitra Could not pay quarterly installment till March, 2005. Insured Alvin was given to understand that there was a intensive revival campaign from 01/11/06 to 15/12/06. Deceased Alvin was working with the husband of Opposite Party No.2 and drawing salary of Rs.5,000/- per month since the year 2001, who persuaded the Alvin S. Mitra to take L.I.C. policy through Opposite Party No.2. Opposite Party No.2, who filled up form for the L.I.C. Policy and paid initial installments.
3) According to the Complainant, on account of non payment of premium from the month of May, 2003, late Alvin’s L.I.C. Policy was going to elapse. Opposite Party No.2 informed the scheme of revival and got renewal of the said policy on 21/03/2005 on total payment of Rs.30,657/-. Initially said amount was paid by Opposite Party No.2 and thereafter she immediately arranged a loan on the said policy and took back Rs.26,250/- and rest of the amount from the salary of the Insured.
4) It is submitted by the Complainant that son of the Complainant late Alvin Mitra was not feeling well on 18/01/05 and was suffering from cuff and cold therefore, got check-up from Dr. Rohini V. Chougule, M.D.F.C.C.P. (U.S.A.) Pulmonary Physician on 18/01/2005. There was no problem after taking her treatment. Subsequently, after 1 year and 10 months, Insured late Alvin Mitra was not feeling well and therefore, he got admitted at Radhabai Vatumul Global Hospital, Mahim (W), Mumbai-16. Insured Alvin was feeling weakness due to cuff and loss of appetite and therefore, there was regular treatment from the said hospital. Ultimately, Insured late Alvin died in the said hospital on 12/12/2006.
5) Thereafter, the Complainant made death claim to the concerned officer of Opposite Party No.1 by submitting necessary documents including Death Certificate, Medical Certificates from Dr. Rohini V. Chougule, etc. The Complainant also got the Claim Form–B singed from Radhabai Hospital and completed all the formalities. Thereafter, the Complainant was shocked and surprised on receipt of letter dtd.13/12/2007 from the Sr. Divisional Manager of L.I.C., Mumbai. By the said letter his insurance claim was repudiated. Death Claim Policy was taken by deceased Alvin on 09/08/01 and he was regularly paying the quarterly installments of the policy and it was revived on 25/03/2005. At the time of revival of the policy, Insured Alvin had given age proof, medical certificate and there was no question of submitting personal statement regarding the health. Information given by the Insured was absolutely correct. At the time of taking of policy the Insured Alvin was not suffering from any illness. However, Opposite Party No.1 in order to deprive legitimate and bonafide rights under the said policy falsely alleged that the Insured had suppressed the illness. According to the Complainant, tuberculosis is not the incurable disease and it has become normal and common disease.
6) According to the Complainants, Opposite Party No.1 has wrongly declared the revival of policy is void and all the monies paid to the office of Opposite Party No.1 is forfeited. The Complainant tried to convince Opposite Party No.1, but Opposite Party No.1 & 2 have not given any response. Rejection of claim is unjust and without application of mind. Policy of the Insured was revived in the month of March, 2005. Insured was not suffering any illness at the time of taking policy and at the time of revival of policy. Even then, Opposite Party No.1 has wrongly declared that revival of policy is void. Decision of Opposite Party No.1 is totally arbitrary, illegal and unwarranted. The Complainant has preferred an application to the higher authority of L.I.C. of India, but Complainant’s grievance is not considered. Therefore, the Complainant has filed this complaint. The Complainant has prayed to direct Opposite Parties to pay Rs.3 Lacs being death claim under the policy taken by deceased son of the Complainant No.1 with interest @ 18% p.a. and compensation form mental agony and harassment suffered by the Complainant. The Complainants have also prayed Rs.50,000/- towards cost of appeal to the Zonal Manager, second appeal to the Secretary and legal expenses and cost of this complaint. In support of the complaint, the Complainant No.1 Soloman B. Mitra has filed his affidavit and produced Notarized copies of documents.
7) Opposite Party No.1 has filed written statement-cum-affidavit and thereby resisted claim of the Complainant contending that complaint is false, baseless and vexatious, therefore, deserves to be dismissed. It is submitted that contract of insurance is per se different from the ordinary forms of contract, which come within the purview of the Indian Contract Act, 1872. The contract of insurance is based on principles of utmost good faith. The contract is based on information provided by one party to the contract i.e. Proposer/Life Assured. Based on the information provided by the Proposer in the proposal form as well as the information gathered from the Medical Examiner’s Report. Opposite Party No.1 undertakes to write the risk based solely and solely on the information furnished by the Proposer. The concealment or non-disclosure of any information vitally affects the underwriting decision. It is submitted that the deceased life assured had suppressed that he had consulted Dr. Rohini V. Chougule on 18/01/2005. Personal Statement Regarding Health submitted by the deceased life assured was dtd.21/03/05. Prior to that deceased life assured had consulted Dr. Rohini V. Chougule but at the time of revival of policy the Insured deliberately suppressed material fact regarding his health from the Opposite Party.
8) It is submitted that life Assured Shri. Alvin M. Mitra was holding policy bearing No.904586036, dtd.20/08/2001. Copy of the said policy is annexed with the written statement at Exh.‘1’. Said policy was issued under Table/Term 14-21-(21) for sum assured of Rs.3 Lacs. The life assured had agreed to pay quarterly premium of Rs.3,517/-. Said policy was commenced from 09/08/2001 and its maturity date was 09/05/2022. The life Assured paid the premium upto Feb., 2003. Thereafter on account of non payment of premium of the policy, the policy was in lapse condition from February, 2003. The life Assured got policy revived on 21/03/2005 by submitting Personal Statement Regarding Health, which was duly signed by paying arrears of premium of Rs.30,657/-. Opposite Party No.1 has produced copy of personal statement regarding health, dtd.21/03/2005 submitted by the life Assured alongwith written statement at Exh.‘2’. Thereafter, life assured paid premium till May, 2005. The life assured had on 18/10/2005 availed loan of Rs.26,250/- on above policy. Opposite Party No.1 received death intimation of life assured Alvin from the Complainant. Life assured expired on 12/12/06 and as per death certificate cause of death is “Cardio Respiratory Failure with aspiration pneumonia with bilat Pulmonary Tuberculosis c Hemoptysis”. According to the Opposite Party No.1, since the death of life assured occurred within the period of 2 years from the date of revival of policy. The Opposite Party No.1 as per their claim manual initiated investigation of cause of death of life assured. While investigation Opposite Party No.1 came to know that the life assured was admitted to Radhabai Vatumul Global Hospital on 14/11/06. As per medical case papers it was found that the life assured at the time of admission in the aforesaid hospital himself disclosed that he was suffering from Koch’s since October, 2004 and was taking Anti-Koch treatment. Opposite Party has produced copy of the Claim Enquiry Report, dtd.25/09/07 alongwith written statement at Exh. ‘C-3’ collectively. From the medical case papers it was also revealed that life assured was being treated by Dr. Rohini V. Chougule for Pulmonary Tuberculosis since 06/10/2004. Further, life assured was also treated by Dr. Rohini Chougule for Tuberculosis since 18/01/05. Opposite Party No.1 has produced copy of certificate of treatment dtd.30/10/07 issued by Dr. Rohini V. Chougule. According to Opposite Party No.1, from the medical case papers it is clear that life assured was suffering from Koch’s since October, 2004 and was taking Anti-Koch’ treatment. But at the time revival of policy, in a personal statement regarding health dtd.21/03/05 life assured did not disclose his aforesaid illness. In the personal statement regarding health dtd.21/03/05, there were specific questions in the said declaration i.e. Question No.2 (a) and 4. Life assured has given false answers to the aforesaid questions and suppressed material facts regarding health i.e. he was suffering form Koch’s since October, 2004. It is submitted that if the life assured had disclosed his illness, Opposite Party No.1 would not have issued the policy or would have issued the same with altered conditions. On 21/03/05, even though life assured was very much aware that he was suffering Koch’s since October, 2004 and was taking treatment for the same from Dr. Pednekar and Dr. Rohini Chougule, he deliberately suppressed this fact form Opposite Party No.1 and therefore, Opposite Party No.1 has taken decision to repudiate claim of the Complainant under the said policy.
9) It is submitted that the Complainant had made representation against the said decision of repudiation of claim to their higher authority and also to the Insurance Ombudsman but decision of Opposite Party No.1 of repudiation of claim was upheld. It is contended that there is no deficiency in service on the part of Opposite Party and therefore, Opposite Party No.1 is not liable to pay any amount to the Complainant and complaint deserves to be dismissed with cost. Alongwith written statement Opposite Party No.1 has produced copies of documents at Page No.16 to 43.
10) Opposite Party No.2 has filed separate written statement and thereby denied claim of the Complainant. According to the Opposite Party No.2 she has not taken amount of Rs.26,250/- from deceased life assured nor any amount has been deducted from the salary of deceased life assured. She is not aware about the salary certificate if any issued by her husband. Decision of repudiation of claim was taken by the Opposite Party No.1 and she has no concern with the same. There is no deficiency in service or lapses on her part and therefore, complaint be dismissed.
11) The Complainant have filed rejoinder and thereby denied allegations made in the written statement of the Opposite Parties. Opposite Party No.1 has filed affidavit of Dr. Rohini V. Chougule. The Complainant has filed affidavit of evidence and additional affidavit of evidence. The Complainant has filed written argument. The Opposite Party No.1 has filed written argument. The Complainant No.2 has filed her affidavit. On 25/011/2011, application filed for amendment of complaint to join Ms. Rozi, sister of deceased Insured was allowed and thereafter Ms. Rozi filed her affidavit, stating that in the policy in question her mother’s name was recorded in nominee. However, unfortunately her mother Smt. Manikkamma Mitra died on 28/05/2006 and she is only child of her deceased mother.
12) Heard oral submissions of Ld.Advocate Mr. Parkhe, for the Complainant and Ld.Advocate Mr. Navin Kumar, for the Opposite Parties and the matter was closed for orders.
13) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainants have proved deficiency in service on the part of Opposite Parties ?
Findings : No
Point No.2 : Whether the Complainants are entitled for reliefs as prayed for ?
Findings : No
Reasons :-
Point No.1 :- Following facts are admitted facts that deceased Alvin Soloman Mitra, son of Complainant No.1 had taken insurance policy bearing No.904586036, dtd.24/08/2001 from Opposite Party No.1. Said policy was issued under Table/Term 14/21 (21) for sum assured of Rs.3 Lacs. Quarterly premium of Rs.3,517/- was agreed to be paid. The Complainant as well as Opposite Party No.1 has produced copy of the said policy. In the said policy name of mother of life assured Smt. Manikkamma is recorded as nominee. It is not disputes that nominee Smt. Manikkamma died on 28/05/2006. It appears that Life assured paid quarterly premium upto March, 2003. According to the Complainant, due to financial difficulty, life assured could not paid quarterly premium till March, 2005. On account of non payment of quarterly premium said policy was in laps condition. Further, it is not in dispute that life assured got the said policy revived on 21/03/2005 by paying arrears of premium of Rs.30,657/-. Life assured Alvin Mitra expired on 12/12/2006. In the death certificate cause of his death is recorded as Cardio Respiratory failure with aspiration phenomena with Bilat Pulmonary Tuberculosis c Hemoptysis”. After death of life assured the Complainant had preferred claim under policy and said claim was rejected by the Opposite Party vide their letter dtd.13/12/2007 on the ground that deceased insured had suppressed material facts regarding his health that he was suffering form Koch’s since 2004.
It is submitted on behalf of Opposite Party No.1 that claim was received within period of 2 years from the revival of policy. As per the claim manual provisions of Opposite Party No.1 Opposite Party No.1 initiated investigation regarding cause of death of life assured. While investigating the cause of death, Opposite Party came to know that life assured was admitted to Radhabai Vatumul Global Hospital on 14/11/2006 and as per medical case papers it was found that life assured at the time of admission himself disclosed that he was suffering from Koch’s since October, 2004 and was taking Anti-Koch’s treatment. Opposite Party No.1 has produced confidential report of claim enquiry alongwith written statement at Exh.‘3’collectively. It is mentioned in the report that life assured Alvin Mitra was diagnosed for Koch’s disease in October, 2004 and taken treatment for the same from Dr. Pednekar and again from Dr. Rohini Chougule. On 14/11/06 life assured was admitted in the Radhabai Vatumul Global Hospital for the treatment Koch’s disease.
It is submitted by Ld.Advocate Navin Kumar for Opposite Party No.1 that life assured had taken medical treatment for Koch’s disease from Dr. Pednekar as well as Dr. Rohini Chougule. In this case the Opposite Party has produced affidavit of Dr. Rohini Chougule and medical case papers given by Dr. R. Chougule. Dr.Rohini Chougule in her affidavit has stated that she is holding qualification as M.D. FCCP (USA) and practicing as a Pulmonary Physician at Room No.125, MRC Building, Bombay Hospital, Mumbai–20. According to the Dr. Rohini V. Chougule, on 18/01/2005, she personally examined Mr. Alvin S. Mitra and she found that Mr. Alvin S. Mitra was suffering from Multi Drugs Resistant (MDR) Pulmonary Tuberculosis and therefore, she prescribed Anti-Koch’s treatment. Accordingly Dr. Rohini Chougule, Mr. Alvin S. Mitra was under her treatment since 18/01/05 till 14/11/06.
It is submitted that Insured Alvin died on 12/12/2006 in Radhabai Vatumul Global Hospital due to Multi Drugs Resistant (MDR) Pulmonary Koch’s. According to the Ld.Advocate for the Opposite Party, Insured Alvin Mitra was diagnosed for Koch’s disease in October, 2004 and he was aware that he was suffering from Koch’s disease at least since October, 2004. However, at the time of revival of policy deceased Insured in his personal statement regarding health deliberately suppressed material facts regarding the health and so revival of policy is void. It is clear from the evidence on record that on 28/07/01, late Alvin Mitra had obtained Endowment Insurance Policy bearing No.904586036 form the Opposite Party. Maturity date of this policy was 09/08/2022. Quarterly premium was Rs.3,517/-. The Complainant as well as Opposite Parties has produced copies of the said policy. It is not in dispute that till the month March, 2003, Insured Alvin paid quarterly premium and thereafter he stopped payment of quarterly premium. On account of non payment of quarterly premium insurance policy was lapsed. Subsequently, in the March, 2005 Insured Alvin applied for revival and on payment of arrears of premium of Rs.30,657/- policy was revived from 21/03/05. It appears that for revival of policy Insured Alvin had submitted statement regarding his health. Opposite Party has produced copy of personal statement. Relevant questions in the prescribed form regarding health put to the Insured and the answers given by the Insured to the said questions are recorded in the said statement. In the personal statement questions regarding health submitted by insured Alvin Mitra on 21/03/2005 at the time of revival of policy put the Insured and answers given by the Insured are as under –
Questions Answers
2 | Since the date of your proposal for the above (a) Have you ever suffered from or suffering from - (i) Asthma, tuberculosis or any other disease of the lungs ? (vii)(a) Any other illness requiring treatment for more than a week ? (d) What deaths or illness have there been in your family (parents, husband, wife, brothers, sister or children) Give age at death and cause of death. | No No No |
4. | Are you at present in sound health ? | Yes |
It is submitted by the Ld.Advocate for the Opposite Party No.1 that prior to the renewal of the policy in the month of Oct., 04, deceased Insured had taken treatment for Tuberculosis from Dr. Pednekar and subsequently from Dr. Rohini Chougule. In support of aforesaid contention Ld.Advocate Navin Kumar has produced report of the investigation. It is submitted that the deceased Insured has also taken treatment for Koch’s disease from Dr. Rohini Chougule from 18/01/05. Opposite Party has produced affidavit of Dr. Rohini chougule who is holding qualification of M.D. FCCP (USA) and practicing has a pulmonary Physician at Room No.125, MRC Building, Bombay Hospital. Dr. Rohini Chougule has stated that on 18/01/05 she personally examined Mr. Alving S. Mitra and found that Alvin S. Mitra was suffering form Multi Drugs Resistant (MDR) Pulmonary Tuberculosis and therefore, she prescribed him Anti-Koch’s. She has further stated that Alvin S Mitra was under her treatment since 18/01/05 till 14/11/06 and was taking Anti-Koch’s treatment as per her advice. It is to be noted that in the complaint para no.7 the Complainant has stated that on 18/01/05 his son was not feeling well and was suffering from cuff and cold therefore, got check-up from Dr. Rohini Chougule, Pulmonary Tuberculosis and thereafter there was no problem. Dr. Rohini Chougule is an independent person and responsible doctor who has stated on oath that on 18/01/05 when she examined Insured Alvin she found that Insured Alvin was suffering form Multi Drugs Resistant (MDR) Pulmonary Tuberculosis and prescribed him Anti-Koch’s treatment. It appears that from the affidavit of Dr. R. Chougule that deceased Alvin was under her treatment from 18/01/05 to 14/11/06. There is no reason to disbelieve evidence of Dr. Rohini Chougule. Further, it appears documentary on record that subsequently Insured Alvin was admitted in Radhabai Vatumul Global Hospital, Mahim on 14/11/06 and expired on 12/12/06 due to Koch’s. Further, it appears from the record at the time of revival of policy in the month of March, 2005, deceased Insured Alvin had submitted his statement regarding health to the Opposite Party No.1 in which he has given false answers to question No.2 (a) thereby deliberately suppressed fact that he was suffering from Tuberculosis.
Ld.Advocate Mr. Parkhe for the Complainant has submitted that in the month of July, 2001, when deceased Alvin, son of the Complainant obtained Endowment Insurance Policy from the Opposite Party No.1 that time deceased Alvin was not suffering from any disease. It is submitted that before revival of lapsed policy, on 18/01/05 deceased Insured was suffering from cuff and cold and for that got treatment from Dr. Rohini Chougule. As discussed above from the affidavit of Dr. Rohini Chougule, it is clear that from 18/01/05 Insured Alvin was suffering from Multi Drug Resistant (MDR) Pulmonary Tuberculosis and Dr. Chougule prescribed him Anti-Koch’s treatment. It is submitted by Ld.Advocate for the Complainant at the time of revival of policy there is no necessity for submitting statement regarding health. Alternatively, it is submitted that even if deceased Insured had submitted statement regarding his health at the time of revival of policy so called suppressing of Koch’s disease will not render policy void, as revival of policy is merely renewal of old policy on the same terms and conditions. Revival of policy relates that to the date of inception of policy and as such, decision taken by the Opposite Party No.1 of repudiation of claim on the alleged ground of suppression of material facts regarding health is not just and proper and it amounts to deficiency in service on the part of Opposite Party.
On the contrary, Ld.Advocate for the Opposite Party No.1 Mr. Naveen Kumar has submitted that admittedly policy taken by deceased Insured Alvin was lapsed on account of non payment of premium from the month of March, 2003. In the month of March, 2005, deceased Alvin applied for revival of policy. As per the procedure prescribed for revival of policy, deceased Alvin submitted his statement regarding health and paid arrears of premium. Relying upon that treatment regarding health Insured Alvin policy was revived. According to the Ld.Advocate for Opposite Party No.1 Contract of insurance is of utmost good faith. If it is found Insured has suppressed material fact regarding his health at the time of inception of policy or at the time of renewal of policy, policy become void. In the instant case, it is proved that at the time of revival of mediclaim policy, Insured Alvin deliberately suppressed material fact regarding health that he was suffering from Koch’s disease. Further, it is submitted that prior to the revival of policy he was taking treatment for Koch’s disease from October, 2004, from Dr. Pednekar and Dr. Rohini Chougule, so he was very well aware about the nature of his disease. Even then, he has deliberately suppressed this fact and so Opposite Party as per the terms and conditions of the policy repudiated claim of the Complainant. In support of his contention that at the time of revival of policy if material fact is suppressed by the Insured policy become void. The Ld.Advocate has relied upon the decision in case Smt. Aruna A. Bhatne V/s. LIC of India, in which it is held that “life insurance policy lapsed. At the time of revival medical ailments concealed. The District Forum allowed claim on the basis that there is special renewal. The order’s of District Forum was set aside.” The Ld.Advocate of Opposite Party Naveen Kumar has relied upon in another case reported in 1985-1995 NSI 491, the Marketing Manager, LIC of India V/s. Smt. S. Vijaya, in which it is held that “in the personal health statement submitted by the Insured just prior to revival of policy, he had suppressed the material facts concerning his health – held for repudiation by LIC of India was fully warranted.” In the case reported in AIR 1959 AP 562 (DB) the policy had lapsed before the death of Insured due to non-payment of premium installment at the time of revival of policy. The Insured had suppressed facts regarding his health. There was a query whether the Insured had suffered from any other illness requiring treatment more than 1 week. The answer was in the negative but this fact was proved by the documents on record. Later the Insured died. A claim preferred was repudiated. Commission found that there were suppression of fact at the time of revival of policy and therefore, claim was rightly repudiated. In case of LIC V/s. Parveen Dhingra (2003) 2 CPJ 70 NC. The Hon’ble National Commission has noticed that the Insured had knowingly given incorrect information regarding his personal health in revival form for the lapsed policy. The Commission observed that insurance is contract of utmost good faith. Deceased Insured had given incorrect replies knowingly. Thus, claim was rightly repudiated.”
In this case considering the facts, it is clear that at the time of revival of policy deceased Insured Alvin in his statement regarding health deliberately suppressed material fact that he was suffering from Tuberculosis and therefore, Opposite Party No.1 was justified in repudiating the claim on the ground of suppression of material facts by the Insured regarding his health. Therefore, we hold that the Complainant has failed to prove deficiency in service on the part of Opposite Parties. In the result we answer point No.1 in the negative.
Point No.2 :- For the reasons discussed above, the Complainants has failed to prove deficiency in service on the part of Opposite Parties. Therefore, Complainant is not entitled for any relief claimed. In the result we answer point no.2 in the negative.
For the reasons discussed above, complaint is liable to be dismissed. Hence, we pass following order -
O R D E R
i.Complaint No.234/2008 is dismissed with not order as to cost.
ii.Certified copies of this order be furnished to the parties.
