FINAL ORDER
Samaresh Kumar Mitra, Member:
The case of the complainant is that her husband Balaram Das was insured his life through a policy issued by OP No.1. The complainant was the nominee. The complainant during his life time already paid a premium amounting to Rs.11,300/-. That on 1st week of Dec.2010 the policy holder became seriously ill and admitted to Chinsurah Sadar Hospital at 03.12.2010 night and unfortunately he died on 04.12.2010 due to myocardial infaction. When the complainant came to know about the said policy then the complainant without delay lodged death claim against the policy on 10.03.2012 following the direction of the OP No.1. The OP No.1 received the claim Form from the complainant and sent it to OP No.2 on 10.07.2012 for settlement of claim. After a long period the Op No.2 repudiated the death claim of the husband of the complainant on the ground that insured Balaram Das withheld correct information regarding his health during the assurance of policy and as the policy is a contract so the OP repudiated the claim of the complainant. Getting the repudiation letter the complainant went to the office of OP No.1 and requested to reconsider her claim but of no result. As the complainant had no alternative so he filed the instant complaint before this Forum for deficiency of service and unfair trade practice on the part of the OP. He prayed a direction upon the opposite parties before this Forum a death claim amounting to Rs.100000/- against the policy being no.496042948, a sum of Rs.50000/- for mental pain, agony and harassment, another Rs.20000/- for litigation cost and other reliefs as this Forum deems fit and proper.
The OP appeared by filing written version denied the allegations as leveled against him and he averred that the life assured Balaram Das since deceased obtained the policy from the OP No.1 and the date of commencement was 18.01.2010 and the date of maturity was 18.01.2020 and Smt. Sumati Das was the recorded nominee. That the complainant duly filed the death claim form and they have investigated into the death claim in compliance of their compulsory procedure and it is revealed that the life assured Balaram Das had made incorrect statements by withholding correct information from the OP LICI regarding his actual state of health at the time of effecting the assurance while filing up the proposal Form. In answering the query no.11(a). During the last five years did you consult a medical practitioner for any ailment requiring treatment for more than a week? the DLA answered No, in query no.11(b). have you ever been admitted to any hospital or Nursing Home for general check up, observation, treatment and operation, answer is No.,11(c). Have you remained absent from place of work on grounds of health during the last 5 years, answer is ,No. 11(e) Are you suffering from or have you ever suffered from Diabetes Tuberculosis, High Blood Pressure, Cancer, Epilepsy, Hernia, Leprosy or any other disease? Answer is No. 11(i) what has been your usual state of health? Answer is Good.
The OP further assailed that in course of their investigation of the death claim of the deceased life assured that he was suffering from pain in his left Knee from 05.06.2008 and under treatment in the district hospital Chinsurah on and from 04.06.2008 and he consulted with and took medical treatment of Dr.Tathagata Das a consultant orthopaedic Surgeon from 16.6.1999 onwards. From the certificate of Asst. Engineer, Howrah Mechanical Sub-Divn that the DLA Balaram Das availed of Earned Leave on medical ground from 21.11.2009 to 02.12.2009 from the place of employment. The answering OP rightly repudiated the claim of the complainant due to suppression of material fact. He denied that he is not deficient in providing service to this complainant and no unfair trade practice on his part.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
The OP filed evidence on affidavit which is nothing but replica of his written version.
Both sides filed written notes of argument which are taken into consideration for passing final order.
Argument as advanced by the agent of the complainant heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant Mrs. Sumati Das ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards
the Complainant?
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1). ‘Consumer’ of the opposite party?
Whether the Complainant Mrs. Sumati Das is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainant herein being the nominee as well as beneficiary of deceased customer of the OP No.1 insurance company, OP No.2 &3 are the other offices of the said insurance company, so being a consumer she is entitled to get service from the OP insurance company being the service provider.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the OP a death claim amounting to Rs.100000/- against the policy being no.496042948, a sum of Rs.50000/- for mental pain, agony and harassment, another Rs.20000/- for litigation cost and other reliefs as this Forum deems fit and proper ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3). Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service
towards the Complainant?
The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people of throughout the whole nation since a long back with self generated assets i.e. goodwill of the business. So, the credibility of the OP Insurance Company is unquestionable and that is why the husband of the complainant insured his life before the said company without any doubt. It is well settled proposition of law that a contract of insurance is based on the principles of utmost good faith-uberrimae fidei applicable to both the parties. The rule of nondisclosure of material facts vitiating a policy still holds the field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts, the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which is within his/her personal knowledge or which he ought to have known had he made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non disclosure of material facts.
The expression “material fact” is not defined in the Insurance Act,1938 and therefore, as observed by the Supreme Court in Satwant Kaur Sandhu -vs- New India Assurance Company Ltd. 2013 (3) CPR 644 (sc),it has to be understood in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact, which goes to the root of the contract of insurance and has a bearing on the risk involved, would be “material” and if the proposer has knowledge of such fact, he is obliged to disclose it, particularly while answering questions in the proposal form. Any inaccurate answer will entitle the insurer to repudiate their liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance. That the observation of the Apex court in Satwant Kaur’s case as :-
“thus it needs little emphasis that when an information on specific aspect is asked for in the proposal form, an assured is under solemn obligation to make a true and full disclosure of the information on the subject which is within his /her knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses.”
The husband of the complainant Balaram Das insured his life through a policy issued by OP No.1 and paid first premium amounting to Rs.11300/- on 1st week of Dec.2010 the policy holder became seriously ill and admitted to Chinsurah Sadar Hospital at 03.12.2010 night and unfortunately he died on 04.12.2010 due to myocardial infarction. When the complainant came to know about the said policy then the complainant without delay lodged death claim against the policy on 10.03.2012 following the direction of the OP No.1. The OP No.1 received the claim Form from the complainant and sent it to OP No.2 on 10.07.2012 for settlement of claim. After a long period the OP No.2 repudiated the death claim of the husband of the complainant on the ground that insured Balaram Das withheld correct information regarding his health during the assurance of policy and as the policy is a contract so the OP repudiated the claim of the complainant.
The OP denied the allegations as leveled against him and he averred that the life assured Balaram Das since deceased obtained the policy from the OP No.1 and the date of commencement was 18.01.2010 and the date of maturity was 18.01.2020 and Smt. Sumati Das was the recorded nominee. That the complainant duly filed the death claim form and they have investigated into the death claim in compliance of their compulsory procedure and it is revealed that the life assured Balaram Das had made incorrect statements by withholding correct information from the OP, LICI regarding his actual state of health at the time of effecting the assurance while filing up the proposal Form. The OP further assailed that in course of their investigation of the death claim of the deceased life assured it is revealed that he was suffering from pain in his left Knee from 05.06.2008 and under treatment in the district hospital Chinsurah on and from 04.06.2008 and he consulted and took medical treatment of Dr.Tathagata Das a consultant orthopedic Surgeon from 16.6.1999 onwards. From the certificate of Asst. Engineer, Howrah Mechanical Sub-Divn that the DLA Balaram Das availed of Earned Leave on medical ground from 21.11.2009 to 02.12.2009 from the place of employment. The answering OP assailed that he rightly repudiated the claim of the complainant due to suppression of material fact. So the deficiency and unfair trade does not arise.
On the face of the case record it appears that the claim of the complainant was repudiated by the OP No.1 on the ground that he was suffering from preexisting disease and the life assured suppressed his suffering in the policy Form so it is breach of terms and condition on the part of the complainant. The prescription dated 05/6/2008 (Annexure-II) reveals that the DLA was suffering from pain in knee and another prescription (Annexure-III) dated 16/6/1999 of Dr. Tathagata Das an orthopaedic surgeon which speaks that he took treatment from him but the disease is not specified. By collecting the Xerox copies of 2 prescriptions regarding the treatment of the deceased life assured the OP investigated the claim of the complainant and repudiated claim on the pretext that he suppressed his suffering in the proposal Form. And banking upon the prescriptions the OP repudiated the claim of the complainant on flimsy ground that the deceased life assured prior to taking the insurance policy was suffering from disease and he suppressed those disease while taking the policy from the OP. It appears from the information of death that life assured died of Myocardial Infarction which is nothing but heart attack. Now it is a matter of discussion that the suffering from pain in knee in the years 1999 & 2008 leads to heart attack on 4/12/2010. After perusing the documents and going through the averments of the both sides that deceased was not suffering from any chronic disease and there was no contributory cause of death, the cause of death has been occurred suddenly. Moreover, nobody knows when she/he will suffer from any kind of sudden pain or disease requiring treatment/operation. In the instant case the OP could not file any previous prescription of any doctor prior to taking out insurance policy that the deceased life assured borne any symptoms or sickness relating to his disease.
We do not find suppression of any material fact by the insured in the proposal form and OP has committed deficiency in repudiating claim on flimsy grounds.
Had he been suffering from heart problem prior to acceptance of policy then what was his problem to receive treatment from date knowledge of suffering. No one would like to remain without treatment when he has sufficient funds to take treatment.
During the period of argument the advocate on behalf of the OP assailed that the policy holder undergo treatment in his knee and was under the treatment of a Orthopedic Surgeon before the acceptance of policy of OP it does not mean that the Pain in Knee leads to cancer. Merely because one is having heart problem may be without his knowledge, it cannot be said that ultimately he will die due to Myocardial Infarction. There is no material in the record to show that in any proposal form, it was concealed or mentioned by the LA that he was suffering from heart problem. There is no material to show that there was any earlier treatment in respect of any heart problem. In absence of any treatment paper, no court/Forum can hold that there was some earlier pre-existing disease which was concealed by the complainant while making proposal for the insurance cover. Thus the defense which has taken by the OP Company was having no legs to stand so it is rightly discarded by this Forum.
It was pleaded on behalf of the complainant that if an insured is not aware of an ailment he may be suffering, nondisclosure thereof does not tantamount to suppression of material fact.
No documents in respect of treatment of the complainant before the acceptance of Proposal Form are in the case record which corroborates that the complainant has been suffering from heart problem which leads to his death. The OP failed to produce such document to deny the claim of the complaint that during the acceptance of proposal Form LA supplied the correct information regarding his health.
So the life assured was unaware of his disease whether he was suffering from heart problem and his illness at the material point of time i.e. taking the insurance policy does not arise. He was not aware whether he will suffer from heart problem in the future and he/ his nominee have to make claim before the Insurance Company for which the Insurance Company by repudiating his/complainants claim destructed the myth of utmost on good faith.
Upon consideration of the evidence adduced by the parties, this Forum observed that the Insurance Company had failed to bring on record any proof in support of their plea that the deceased was suffering from any pre-existing disease at the time of obtaining the policy, there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease at the time of obtaining the policy, there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease and that the medical evidence relied upon by the Insurance Company was neither supported by any corroborative evidence nor did it prove that the said treatment had any nexus with the cause of heart problem. Every person may suffer from normal diseases like acidity, fever, common cold and indigestion which does not lead to heart problem or cancer. So by producing the treatment sheet or prescriptions of doctors of 1999 and 2008 have no relevancy of death in the Dec, 2010 only to evade the responsibility of paying the death claim. This should not be the intention of the organisation who has been established for the purposes of benefit of the public. This Forum thus came to the conclusion that there was no suppression of any material fact by the life assured and therefore, in repudiating the claim of the complainant, there was deficiency of service on the part of the Insurance Company, causing great hardship, financial loss and mental agony to the complainant.
We also carefully went through the judgment /citation submitted by the agent of the parties, i). Life Insurance Corpn. of India -vs-, Noorul Ali Khan (2004) 2 CPR 575.ii). Saurabh Basu V. Union of India and others HC, Allahabad, dated 14.12.2007 iii). Max New York Life Insurance –vs- Smt Sukhada Middya. (SC),WB dated 16th May,2008. iV). Life Insurance Corpn. of India –Vs.- Krishna Chander Sharma 2, (2007)CPJ 51 NC. V). P.C. Chako and another -vs.- Chairman Life Insurance Corpn. of India (SC) Civil Appeal No.5322of 2007.
So we are in a considered opinion to allow the complaint as policy holder was not suffering from any disease when he signed the policy proposal of this OP Insurance Company and OP could not prove the same. We direct the OP Insurance Company i.e. the OP No.1 to pay the death claim amounting to Rs.100000/- against the policy being no.496042948, a sum of Rs.20000/- for mental pain, agony and harassment and another Rs.10000/- for litigation cost
4. Whether the complainant proved his case against the opposite party, as alleged
and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant is able to prove his case and the Opposite Party is liable to pay the ordered amount.
ORDER
Hence, it is ordered that the complaint be and the same is allowed on contest against the Opposite party No.1 with a litigation cost of Rs.10,000/-.
The whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint and Opposite Party No.1 is directed to pay the assured sum amounting to Rs.100000/- to this complainant within 45 days from the date of order.
The OP No.1 is also directed to pay a sum of Rs.20000/- as compensation to this complainant for mental pain, agony and harassment.
The OP No.1 is directed to pay a sum of Rs.10000/- for unfair trade practice in the account of Consumer Legal Aid Account.
At the event of failure to comply with the order the Opposite Party No.1 shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer legal Aid Account.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
Dictated and corrected by me. samaresh Kr. Mitra, Member.
