PRONOUNCED ON: 13th DECEMBER 2016 ORDER PER DR. B.C. GUPTA, PRESIDING MEMBER This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 17.12.2013, passed by the Rajasthan State Consumer Disputes Redressal Commission, (hereinafter referred to as “the State Commission”) in First Appeal No. 1550/2012, Canara HSBC Oriental Bank of Commerce, Life Insurance Co. Ltd. vs. Sh. Lalit Kumar Kothari, vide which, while dismissing the appeal, the order passed by the District Consumer Disputes Redressal Forum, Ajmer, dated 25.10.2012, in Consumer Complaint No. 195/2012, filed by the present respondent Lalit Kumar Kothari, allowing the said complaint, was confirmed. 2. Briefly stated, the facts of the case are that the complainant/respondent Lalit Kumar Kothari obtained a home loan from the Oriental Bank of Commerce in the name of his mother Smt. Prem Devi. The Bank imposed a condition to take insurance policy in the name of the complainant and his mother as security for the home loan. Accordingly, the complainant and his mother took separate insurance policies from the petitioner. The policy no. 0025897415 taken by his mother Smt. Prem Devi was for a sum assured of Rs. 10 lakhs and the annual premium payable was
Rs. 1 lakh. After the application for obtaining the policy was given by his mother, the petitioner Insurance Company sent a letter dated 25.05.2011, asking for her medical check-up to be done at Adarsh Hospital and Diabetes Centre, Shahpura Mohalla, Byavar. The said medical examination was done at that hospital on 26.05.2011, and the complainant’s mother was found to be healthy and fit. The policy no. 0025897415 was then issued by the Insurance Company in her favour vide letter dated 09.06.2011. However, the complainant’s mother had a sudden heart attack on 22.06.2011, whereupon she was taken to the nearby hospital, but she died on the way itself. The complainant filed a claim for getting the assured sum under the policy and supplied the necessary documents as demanded by the OP. However, the respondent refused to pay the claim amount and sent them a letter dated 18.08.2011, saying that Smt. Prem Devi had been suffering from cancer, prior to taking the insurance policy and that she had concealed the factum of her ailment from the Insurance Company and hence, the claim was not payable. Alleging deficiency in service on the part of the OP Insurance Company, the complainant filed the consumer complaint in question before the District Forum, demanding an amount of Rs. 10 lakhs payable with interest as the claim and also to pay Rs. 25,000/- as compensation against mental harassment and Rs. 11,000/- as litigation cost. 3. The complaint was resisted by the petitioner Insurance Company by filing a written statement before the District Forum, in which they stated that the proposal form was filled up and signed before M. K. Sharma s/o D. K. Sharma resident of Beavar, because the mother of the complainant was not much literate. It has been stated in the proposal form itself that the facts mentioned in the said form had been explained to the mother of the complainant by the said M. K. Sharma and understood by her. Thereafter, a benefit illustration relating to the policy was also issued on 09.05.2011 to the mother of the complainant, in which she was made aware of all the benefits or profits under the policy. The mother herself signed the said benefit illustration and gave a declaration relating to understanding the facts in the proposal form. However, after receiving the claim under the policy, an investigation into the matter was conducted, which revealed that the deceased had been suffering from cancer, prior to the filing of proposal form on 09.05.2011 for getting the policy. It was clear, therefore, that the facts relating to the health condition of the insured had been wrongly stated, while filling up the proposal form. Despite the fact that she had taken treatment in the Department of Surgical Gastroenterology, Santokba Durlabhji Memorial Hospital cum Research Institute, Jaipur, where she was diagnosed for metastatic liver disease, the said facts were not disclosed to the Insurance Company. The policy holder remained admitted at that hospital from 22.04.2011 to 27.04.2011. Following the investigation done in the matter, the claim of the claimant under the Insurance policy had been rightly repudiated by them. 4. The District Forum, after considering the averments of the parties, allowed the consumer complaint and directed the Insurance company to pay the claim amount of Rs. 10 lakhs alongwith all benefits and interest @ 9% per annum on the said amount from the date of presentation of claim to the date of payment. The District Forum stated in their order that the Insurance Company could not produce any other conclusive evidence to prove the fact that the insured was suffering from Chronic Obstructive Pulmonary disease and Asthma Metastatic Liver disease. The claim was, therefore, not payable. Being aggrieved against the order of the District Forum, the OP Insurance Company challenged the same by way of an appeal before the State Commission at Jaipur, and the said appeal having been dismissed vide impugned order dated 17.12.2013, the OP Insurance Company is before this Commission by way of the present Revision Petition. 5. During arguments, it was contended by the learned counsel for the petitioner Insurance Company that it was a clear case of non-disclosure of material facts on the part of the insured before the Insurance Company at the time of filling the proposal form for obtaining the policy in question. The learned counsel stated that the insured had taken treatment for cancer disease before obtaining the policy and that she should have disclosed this fact while taking the policy. Moreover, the insured died within less than a month of taking the policy. The learned counsel has drawn attention to the medical report made by the Adarsh Hospital and Diabetes Centre in which, it has been stated that she had been diagnosed for fibroid uterus and had undergone hysterectomy at Gujarat. In October, 2010, she was diagnosed for gallstone and she was operated at Jodhpur for cholecystectomy. However, the documents from the Department of Surgical Gastroenterology, Santokba Durlabhji Memorial Hospital cum Research Institute indicate that the insured was admitted in that hospital from 22.04.2011 to 27.04.2011 and she was found to be suffering from metastatic carcinoma based on the histopathology report. The learned counsel argued that while filling up the proposal form for obtaining the policy in question, the insured had given all wrong answers regarding her health condition. The Insurance Company had issued the policy to her in good faith. In fact, it was clear from the perusal of the proposal form that one M. K. Sharma had filled the form and explained about the information filled therein. The form had also been signed by M. K. Sharma. The learned counsel stated that keeping in view all these facts, the claim had been rightly repudiated by the Insurance Company and hence, the order passed by the consumer fora below was perverse in the eyes of law and should be set aside. 6. The learned counsel for the respondent stated that Smt. Prem Devi was an illiterate lady and hence, she did not know about the information filled in the proposal form. She had signed the said form in Hindi. The person, who filled the form, did not ask her any question about the condition of her health or otherwise. The said person, who filled the form, had not been produced for recording his testimony by the Insurance Company. 7. In reply, the learned counsel for the petitioner stated that the complainant never took this plea before that the form in question had been filled by an agent and hence, the insured did not have any knowledge about the contents of the same. 8. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. 9. The main issue for consideration in the matter is whether there has been any concealment of material information about the health condition of the insured from the Insurance Company at the time of obtaining the policy in question. The documents relating to the treatment taken by the insured at Santokba Durlabhji Memorial Hospital cum Research Institute, Jaipur, Department of Surgical Gastroenterology, make it very clear that Smt. Prem Devi was diagnosed to have been suffering from metastatic carcinoma. She remained admitted at the said hospital from 22.04.2011 to 27.04.2011. The proposal form for obtaining the policy bears the date 09.05.2011 and says that M. K. Sharma had fully explained the contents of the proposal form and all other documents in Hindi language to Smt. Prem Devi and that she had understood the significance of the proposed contract. In the said proposal form, it has been stated categorically that the insured was never hospitalized for general check-up, observation, treatment or surgery etc. and that she did not suffer from any ailment etc., requiring treatment for more than a week. It was also stated that during the last six months, the insured had never consulted a doctor or visited a clinic and that she was not suffering from any disease. It is clear, therefore, that there has been concealment of material information about the health condition of the deceased at the time of obtaining the policy from the Insurance Company. 10. It is a settled legal proposition that a contract of insurance is a contract of utmost good faith, ‘uberrima fides’, entered between the parties. In case, there is breach of such faith, the Insurance Company is well within its rights to deny the claim payable to the insured. There are a number of landmark judgments on the subject, given by the Hon’ble Apex Court and this Commission, which say in explicit terms that in the case of concealment of material information, the Insurance Company is entitled to repudiate the claim under the insurance policy in question. In this regard, reference may be made to the cases decided by the Hon’ble Supreme Court in Satwant Kaur Sandhu vs. New India Assurance Company Ltd., reported in 2009 8 SCC 316, P. C. Chacko & Anr. vs. Chairman, Life Insurance Corporation of India & Ors., (2008) 1 SCC 321 etc. 11. During the course of arguments, the learned counsel for the respondent has drawn attention to an order passed by this Commission in Life Insurance Corporation of India vs. Smt. Charanjit Kaur as reported in 2011 (4) 459 CPR, in which it was held that there was no sufficient evidence to hold that the insured knowingly or fraudulently concealed material facts regarding concealment of disease at the time of taking the policy. However, considering the issue involved in the said case, relating to the patient suffering from diabetes for the last ten years and in the habit of taking alcohol for the last one year, the Commission held that only the history sheet was not sufficient to hold that the deceased was suffering from diabetes and other diseases and she was undergoing treatment prior to taking the policy. In the present case, it was clear that just a few days before filling the proposal form, the patient remained under treatment in a hospital, where he was diagnosed to be suffering from cancer. It is clear, therefore, that the concealment of material information in the present case is established beyond doubt. 12. Based on the discussion above, this Revision Petition is allowed and the orders passed by the consumer fora below are set aside. The consumer complaint in question is ordered to be dismissed with no order as to costs. |
