BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.: 12 of 2017.
Date of Institution: 11.01.2017.
Date of Decision: 11.04.2019.
Birma Devi widow of late Shri Sajjan Kumar, resident of VPO Golagarh, Tehsil & District Bhiwani.
….Complainant.
Versus
1. Zonal Manager, LIC of India, Jeevan Bharti, Cannaught Circus, New Delhi.
2. The Manager, Manager, LIC of India, Jeevan Bharti, Bhiwani.
…...Opposite Parties.
COMPLAINT UNDER SECTIONS 12 AND 13 OF
THE CONSUMER PROTECTION ACT, 1986.
Before: - Hon’ble Mr. Manjit Singh Naryal, President.
Hon’ble Mr. Parmod Kumar, Member.
Hon’ble Mrs. Saroj Bala Bohra, Member.
Present: Shri Jogender Kumar Saini, Advocate for the complainant.
Shri N. S. Vijayrania, Advocate for the OPs.
ORDER:-
PER MANJIT SINGH NARYAL, PRESIDENT
Brief facts of the case are that the complainant’s husband Shri Sajjan Kumar has taken insurance policy No.179751999 from the OPs by paying premium. It is alleged that unfortunately on 14.9.2014 husband of the complainant died and being nominee complainant became entitled to get the insured amount of the policy in question. It is further alleged that the claim for insured amount has been repudiated vide letter dated 1.3.2016 by OPs for the reason that insured had withheld correct information regarding his health at the time of affecting the assurance and gave 3 months period for filing representation for reconsideration of claim. It is further alleged that the complainant being widow & illiterate lady not conversant with the rules & regulations and suffering from various diseases since long, she ignorantly could not prefer her representation within stipulated time to claim the amount of insurance against the policy in question, as such she entitled for condonation of delay occurred due to her ignorance. It is further alleged that the complainant sent her representation to OP No. 1 vide letter dated 4.10.2016, but the OP No. 1 vide letter dated 10.11.2016 has informed that her appeal against the repudiation of the claim was placed before the Zonal Office Claim Committee, which uphold the repudiation decision of the Division Office. It is further alleged that prior to receive the premium, it is the legal duty of the insurance company to get the medical examination of insurer through their panel doctors and thereafter the policy should have been issued if he fulfill the ingredient of medial fitness. It is further alleged that a legal notice dated 21.11.2016 has been got served upon the OPs, but to no effect. Hence, it amounts to deficiency in service on the part of OPs and hence, this complaint.
2. On appearance, the OP filed written statement alleging therein that on having intimation of death of the life assured Sajjan Kumar holder of insurance policy Nos. 179751999 with date of commencement 28.11.2013, sum assured Rs.2,00,000/- nominee Birma Devi, showing the death on 4.9.2014, all papers were called for settlement of claim. It is further alleged that the matter was investigated and during investigation it was found that the deceased life assured was suffering from Cirrhosis of liver since 2011. It is further alleged that as per record of employer, the deceased life assured had taken leave for 43 days from 1.3.2011 to 12.4.2011 and had taken treatment from Jindal Hospital, Hisar. It is further alleged that the life assured has not mentioned material facts regarding his health in proposal form. It is further alleged that the OPs have evidence and reasons to believe that the deceased life assured was suffering from Cirrhosis of liver disease much prior to the proposal of the insurance policy. It is further alleged that in terms of the policy contract and the declaration contained in the form of proposal for assurance, the OPs repudiated the claim and conveyed the same to the complainant vide letter No.Claims/Rep/2015-16 dated 1.3.2016. Hence, there is no deficiency in service on the part of OPs and complaint of the complainant is liable to be dismissed with costs.
3. Ld. counsel for the complainant has placed on record documents Annexure-C1 to Annexure-C16 in support of his case and closed the evidence.
4. On the other hand, the OPs has placed on record documents Annexure R1 to R13 in support of their case and closed the evidence.
5. We have heard ld. counsel for both the parties at length.
6. Ld. Counsel for the complainant reiterated the contents of the complaint. Ld. Counsel for the complainant has contended that OPs have wrongly & illegally repudiated the claim and no cogent & convincing evidence has been produced on record by OPs to prove that Sajjan Kumar, husband of complainant was suffering from the Cirrhosis of liver disease, prior to the commencement of insurance policy. Therefore, repudiation of claim of the complainant vide letter dated 1.3.2016 is illegal and liable to be set aside and the complaint is liable to be accepted with costs. Ld. Counsel for the complainant has placed his reliance upon National Insurance Company Limited Vs Ravidutt Sharma and another PLR (2011-4), 154.
7. On the other hand, ld. counsel for OPs reiterated the contents of the written statement. Ld. Counsel for the OPs has contended that the life assured was not honest in making the disclosure about his state of health when the proposal form was filled up by him. He further contended that in view of these circumstances the claim of the complainant was rightly repudiated vide letter dated 1.3.2016. Hence, there is no deficiency in service on the part of OPs and the complaint of the complainant is liable to be dismissed. He placed his reliance upon Sushila Devi Vs LIC of India, Civil Misc Writ Petition No. 39028 of 2002, decided on 15.3.2007 by the Hon’ble High Court of Judicature at Allahabad, Ritesh Chopra & Anr. Vs TATA AIA Life Insurance Co., RP No.1052 of 2015, decided on 19.1.2016 by the Hon’ble National Commission, Lata Vs LIC, RP No.1598 of 2015, decided on 3.6.2016 by the Hon’ble National Commission, Marketing Manager, LIC of India Vs Smt. S. Vijaya, RP No.162 of 1994, decided on 13.12.1994 by the Hon’ble National Commission and Mithoolal Nayak Vs LIC of India, CA No.224 of 1959, decided on 15.1.1962 by the Hon’ble Supreme Court of India. But these judgments are not applicable to the facts of the present case due to peculiar facts & circumstances.
8. Now question of law arises as to whether the insurance company was justified in repudiating the claim of the complainant. The sought answer is “No”. The claim of the complainant was repudiated on the allegations that the insured had made false statement in the proposal form knowingly as he was suffering from Cirrhosis of liver disease prior to issuing of insurance policy, because he had taken leave for 43 days and had taken treatment from Jindal Hospital, Hisar. This plea of the OPs cannot be taken into count, because no party can be allowed to take an undue advantage of its own acts and conduct and omissions. It was bounden duty of the company to get the person medically examined before insuring him. If the interpretation of insurance company is accepted, in that eventuality insurance company is not liable to pay any claim, whatsoever, because every person suffers from symptoms of any disease without the knowledge of the same. This policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bonafide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer, because the insurance company relies on their Clause that the deceased life assured had concealed the true facts as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him/her, which he/she is genuinely unaware of the same. Hindsight everyone realize much later that he or she should have known from some symptom. If this is so, every person should do medical studies and further not to take any insurance policy. Even on the facts of record there is no material to show that the deceased life assured had any disease at the time of proposal form. Since there were no symptoms, the question of linking up the symptoms with a disease does not arise in any case. The OPs alleged that the life assured was suffering from Cirrhosis of liver disease and placed on record Annexure R2 to R9. From the perusal of the above documents, it is not proved on record that the life assured died due to Cirrhosis of liver disease. Moreover, it is not disputed by the OPs that the life assured was declared fit by treating doctor and he has joined his duty w.e.f. 13.4.2011. So, it is clearly proved on record that the life assured was fit and hale at the time of issuance of insurance policy in question and it cannot be said that he had concealed anything regarding his health at the time of submitting proposal form and taking insurance policy. Moreover, it was the duty of the OPs to produce treatment record of the life assured to prove that he was suffering from the any serious disease prior to taking the insurance policy, but they have failed to do so. So, concealment of disease, if any, was not of such an important significance, because nothing prevented the OPs from getting the medical examination of the assured for prescribing certain tests. It appears that they did not do so either because of the overzealousness to assure the people by supplementing their income through premiums or due to their cavalier and careless approach in insuring a person on the basis of self declaration. So, whenever a person is assured for policy minimum precaution, the insurance company is expected to take it to get the medical examination as well as other examinations which are required for the insurance policy. It is pertinent to mention here that there is no doubt medical examination might have been got done, as without getting medical examination, no insurance policy can be issued. It is also cannot be disputed that the medical board/MO certainly had declared the life assured fit and only then the insurance policy were issued in favour of life assured. So, it is clear that at the time of issuance of insurance policies the life assured now deceased was not suffering from any disease.
9. The further arguments of the learned counsel for the OPs is that the claim of the complainant is not tenable because the said policy had run about 09 months from the date of first premium. This plea of the OPs is not tenable at all because neither any instruction has been produced by the OPs nor it has been brought into the notice of the complainant. It is also not disputed that the husband of the complainant had obtained the insurance policy bearing No. 179751999 for a sum of Rs.2,00,000/-. Meaning thereby the policy was issued after conducting medical examination. From this fact it is clear that as soon as the cover notes were issued, life assured becomes entitled to get the insurance amount. It is worthwhile to mention here that as soon as insurance policies commenced then the contract becomes complete on that date. Hence, plea of early claim cannot be accepted. From perusal of record, it is clear that no such instruction has been brought on record by the OPs. So, instructions if any it cannot be disentitled the complainant from getting her genuine claim. Annexure R6, medical certificate, the doctor has mentioned that the life insured was suffering from Cirrhosis liver disease, but he has no where mentioned that the same cannot be cured, rather that Doctor lateron declared fit the life assured to join his duties. Moreover, Annexure R1, proposal form, in which there is no signature of doctor of the OPs for examining the life insured, but still the OPs have accepted the proposal form and issued the insurance policy. From the perusal of the proposal form, it is not clear on record that by whom the proposal form was filled. The onus to prove on record the facts mentioned in proposal form beyond doubt is upon the OPs by placing on record some cogent and convincing evidence, but they failed to do so. Moreover, OPs have accepted the proposal form at the time of issuing the policy. It is the duty of the OPs to complete all formalities with open eyes before issuing the insurance policy to avoid unnecessary harassment of assured. The Insurance Companies adopt very unethical and wrong procedure just grab the money from the poor peoples and harass them and their legal heirs when they are in need of the money. It is also moral & social duty of the insurance companies to conduct proper medical checkup of the buyers of the insurance policies before they accept the hard earned money on account of premium from policy buyers, as lateron they were on giving hand and they cannot escape from their liability and also cannot harass the poor people on unnecessary excuses especially at the time of giving the claim to the insured or his legal heirs. Generally it is routine practice that as and when a common person searches on internet about insurance/mediclaim policies, then he receives many unwanted telephone calls from the different insurance companies and these companies try to induce the poor people through their agents without disclosing the entire terms & conditions and at that time the only purpose of their agents is to extort money from public and to get the commission on that amount and they complete all the formalities by themselves including filling of proposal form and they also obtained the signature of assured on some blank forms and for this they always adopt the unethical, unsocial and un-genuine procedure to issue the insurance policy. As and when the assured need for claim and apply for the same, then agents of the insurance companies some-times unethically bargains for settling the claim. So after considering all above mentioned important issues, we come to the conclusion that the insurance companies should have held liable for their errors & negligence committed on their part and to protect the interest of genuine buyers of the insurance policies. The Insurance Companies and their agents are also duty bound to disclose all hidden terms & conditions of the insurance policy to protect the interest of the consumers and these companies are also duty bound to get investigate the assured with their entire satisfaction before issuing the insurance/mediclaim policies. In our view, generally only 2-3 persons approached the insurance company for claiming the insurance claim, out of every 10 persons, but the insurance companies use to raise baseless objections to harass them for getting their insurance claims. It cannot be said that insured has suppressed material facts regarding his health, because everything was within the approachable hand of the OPs and they must investigate all the facts pertaining to the insured before repudiation of the claim to provide proper justice to the needy claimants. Thus, there is clear cut deficiency in service and unfair trade practice on the part of the OPs. Hon’ble Punjab & Haryana High Court, Chandigarh titled as National Insurance Company Limited Versus Ravidutt Sharma and another PLR (2011-4) 154 held as under:-
The insurance companies, in my view, are not acting fairly in all such matters after charging huge premium intention is always to repudiate the claim on one ground or the other. The conditions of the insurance agreements are so minutely printed that per-son gets hardly any time to go through such conditions to make it legally binding in any appropriate manner.
10. Moreover, the Insurance Companies deliberately with malafide intention does not settle the claim of its consumers in time and harassed them without any reason. So in our view the complainant is also entitled for compensation on account of mental and physical harassment & punitive damages for deficiency in service & mal trade practice on the part of the Insurance Company. Therefore, in view of the facts and circumstances mentioned above, complaint of the complainant is partly allowed and the OPs are directed:-
i) To pay the insured amount of policy i.e. Rs.2,00,000/- (Two lacs only) along with interest @ 9% p.a. from the date of filing of the complaint till its realization.
ii) To pay Rs.5000/- as compensation on account of mental agony, physical harassment & hardship, due to deficiency in service & mal trade practice on the part of OPs and punitive damages.
iii) To pay Rs.5000/- (Five thousand only) as counsel fee as well as the litigation charges.
The compliance of the order shall be made within 30 days from the date of the order. Certified copies of the order be sent to parties free of costs. File be consigned to the record room, after due compliance.
Announced in open Forum.
Dated: - 11.04.2019.
(Saroj Bala Bohra) (Parmod Kumar) (Manjit Singh Naryal)
Member. Member. President,
District Consumer Disputes
Redressal Forum, Bhiwani.
