DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA
Consumer Complaint No. 416 of 15/10/2018
Decided on: 12/07/2019
Gurwant Kaur, aged 42 years, Wife late Nardev Singh S/o Sh. Dhanna Singh, R/o village Bhattiwal Khurd, Post office Bhattiwal Kalan, Tehsil Bhawanigarh, District Sangrur.
..Complainant
Versus
1. Life Insurance Corporation of India, Branch office Circular Road, Adjacent Sarvpriya Hotel, Nabha, Tehsil Nabha, District Patiala.
2. Life Insurance Corporation of India, Divisional Office Jeewan Prakash Building, Sector 17-B,Chandigarh …Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Sh. M. P. Singh Pahwa, President
Smt. Inderjeet Kaur, Member
Sh. B. S. Dhaliwal, Member
ARGUED BY
Smt. Gurwant Kaur complainant in person.
Sh. T. M. Sayal Adv. counsel for the OPs.
ORDER
M. P. SINGH PAHWA, PRESIDENT
1. Brief case of the complainant is that her husband Nardev Singh had obtained insurance policy Anmol Jeewan-2 having policy No.165605089. He used to pay the premium half yearly. The sum insured was Rs.10,00,000/-. The complainant was made nominee by her husband. It is further mentioned that Nardev Singh used to pay installments regularly. He died on 10/10/2015 due to heart attack. After his death, the complainant approached OP for insurance claim. She submitted all the documents but the OP failed to pay the claim, that thereafter she filed the complaint before this Forum. Thereafter, she received the letter dt.31/12/2016 vide which OP has repudiated the claim on the ground that her husband has concealed the facts about his health. It is further stated that her husband obtained the insurance policy through agent Chamkaur Singh and he was got medically examined through Dr. Sulesh Gupta on 22/2/2014. Her husband was declared medically fit. It is alleged that OP has repudiated the claim illegally. Complainant also claimed the insurance amount of Rs.10 Lac and Rs.50,000/- as compensation and Rs. 30,000/- as cost of litigation. Hence this Complaint.
2. Upon notice OP appeared through counsel and filed written reply and raised preliminary objections that policy bearing No.165605089 issued in favour of Nardev Singh deceased was void ab-initio on account of mis-statement and suppression of truth in respect of health of deceased life assured, as such the claim under the policy has rightly been repudiated.
3. On merits the issuance of the policy is not denied but the same is stated to be obtained by concealing material facts. The policy was obtained on 22/2/2014 and the life assured (DLA) expired on 10/10/2015. The receipt of premium is not denied. The death of the insurance was also denied. It is further asserted that as per form 3816 got filed by the complainant from PGI Chandigarh, it is mentioned that deceased was suffering from Alcohol related Liver disease with ascites ( Abdominal Swelling caused by circumulation of fluid, most often related to liver disease)/ jaundice/ coagulopathy (Bleeding disorder). (These diseases relates to liver diseases). He was taking treatment from DMC Ludhiana and PGIMER, Chandigarh and was admitted from 13/10/2012 to 20/12/2012. It is reiterated that after the death of the DLA, intimation was given and claim forms were submitted along with form No.3816. Investigation was got done to verify the bonafidies of the claim. DLA gave the answers to the questions in the negative. The questions and answers are also reproduced in tabular form, the mentioning of which is not considered necessary at this stage. It is further stated that it came to light that deceased was known case of Alcohol related Liver Disease ascites/ Jaundice/ Coagulopathy much before taking the policy. He was alcoholic also. The disease was well within the knowledge of the deceased life assured at the time of filing the proposal form. He gave wrong answers to the material questions while submitting the proposal form. The DLA was not keeping good health and was under treatment well before the proposing the proposal form. He remained admitted in PGI from 13/10/2012 to 20/10/2012 vide CR No.201204154102. Earlier he was treated in DMC Ludhiana and these facts were not disclosed in the proposal form. Insurance was granted on the basis of the details given in the proposal form. The competent authority has rightly repudiated the claim of the policy. Said material information was very much necessary to be disclosed by the DLA to assess the risk. Had the DLA disclosed the material facts regarding disease, he had to undergo various special medical tests for assessment of risk. Decision of acceptance or refusal of the proposal would have been taken by Higher office. The Insurance was taken fraudulently by concealing the material information. Therefore, the claim of the complainant was repudiated vide letter dt.31/12/2016. After controverting all the averments, the OP prayed for dismissal of the complaint.
4. Parties were afforded opportunity to produce their evidence.
5. Complainant tendered into evidence her affidavit Ex.CA, copy of Adhaar Card Ex.C1, Copy of Proposal Form Ex.C2, Copy of policy Ex.C3, copy of receipt Ex.C4, copy of status report Ex.C5, Copy of death certificate Ex.C-6, copy of terms and conditions Ex.C-7, copy of Medical Examiner’s confidential report Ex.C-8, Copy of claimant statement Ex.C9, copy of certificate of identity and burial cremation Ex.C-10, copy of order dt.7/9/2018 Ex.C-11, copy of statement dt.7/9/2018 Ex.C-12, copy of repudiation letter dt.31/12/2016 Ex.C-13, copy of certificate of Hospital treatment Ex.C-14 and closed the evidence.
6. OPs No.1 & 2 tendered in evidence affidavit of Rajeev Malhotra, Manager (Legal) Ex.OPA, affidavit of Rajeev Malhotra, Manager (Legal) Ex.OPB, copy of proposal form Ex.OP-1, copy of medical examination report which is part of the proposal form Ex.OP-2, copy of policy Ex.OP-3, copy of application for claim Ex.OP-4, Copy of claimant statement Ex.OP-5, certificate of identity and burial Ex.OP-6, Copy of Form No.3816 Ex.OP-7, Copy of repudiation letter Ex.OP-8 and closed the evidence.
7. We have heard the complainant and counsel for the opposite parties and have also gone through the record of the case, carefully.
8. The complainant has reiterated her stand as taken in the complaint. It is further submitted by the complainant that OP has repudiated the claim vide letter dt.31/12/2016 merely on the basis of certificate of hospital treatment ( Form No.3816) received from the PGI Chandigarh. In letter Opposite party has not referred specific reason for the same. On the basis of Form no.3816 the OP has pleaded that at the time of taking the policy her husband was suffering from Alcohol related disease and he has concealed this fact. As per this certificate also her husband was discharged on condition of symptomatically better condition. At PGI also he was not operated upon for any disease. Her husband was admitted with the complaint of Abdominal distension and decreased urine output which was two months and two days prior to the admission. The admission was on 13/10/2012. Of course in cliagnosis, it is mentioned that her husband was diagnosed with Alcohol related Liver diseases but there is nothing on record that her husband was made aware about the disease. In these circumstances it is not to be accepted that husband of the complainant namely Nardev Singh has concealed any material fact. The treatment was in the year 2012. There is nothing to show that her husband took any treatment thereafter. Therefore, it is not to be accepted that Nardev Singh was suffering from any pre-existing disease at the time of taking the insurance policy or that he has concealed any material facts. To support this submission complainant has relied upon “II (2019) CPJ 59 (Del.) Hon’ble Delhi State Consumer Disputes Redressal Commission, New Delhi titled as Virpal Nagar versus HDFC Standard Life Insurance Co. Ltd.” Wherein in para No.9 the Hon’ble Commission has drawn following ten conclusions in a highly extensive, dissecting manner as under:-
(a) Disease means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim policy.
(b) Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease.
(c) Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in or out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
(d) If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a diseased person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
(e) Disease that can be easily detected by subjecting the, insured to basic tests like blood tests, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
(f) Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance companies don’t discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business.
Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is exclusion clause invokable.
(g) Claim of any insured should not be cannot be repudiated by taking a clue or remote reference to any so called disease from the discharge summary of the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above.
(h) Day-to-day history of several years of some or the other physical problem one may face occasionally without having landed for hospitalization or operation for the disease cannot be used for repudiating the claim. For instance an insured had suffered from a particular disease for which he was hospitalized or operated upon 5,10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of pre-existing disease while taking mediclaim policy as after being cured of the disease, he does not suffer from any disease much less the pre-existing disease while taking mediclaim policy as after being cured of the disease, he does not suffer from any disease much less the pre-existing disease.
(i) For instance to say that insured has concealed the fact that he was having pain in the chest off and on for years but has never diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the insurer to defeat the rightly claim of the insured on flimsy ground. Instances are not rare where people suffer a massive attack without having even been hospitalized or operated upon at any age say for 20 years or so.
(j) Non-instance of hospitalization/ or operation for disease that too in the reasonable proximity of the date of mediclaim policy is the only ground on which insured claim can be repudiated and on no other ground.”
9. On the other hand ld. Counsel for the OP submitted that contract of insurance is based on good faith which is to be reposed by both the parties. Both the parties are under obligation to disclose the material facts which are in their knowledge. Both the parties have produced proposal form in which health related questions are required to be answered in para No.5 and answers to all these questions are in negative. In this way the DLA has claimed that he was not suffering from any disease. He was never admitted in any hospital and he never took treatment for any disease. As the death of the DLA was within two years from the date of insurance as such matter was got investigated. The medical Form No.3816 Ex.OP-7 (copy of which was supplied to the complainant) reveals that Nardev Singh remained admitted in PGI Chandigarh from 13/10/2012 to 20/10/2012 i.e. within period of two years before taking the insurance policy. He was diagnosed having alcohol related liver disease with ascites/ Jaundice/ Coagulopathy. This fact is supported by documentary evidence that complainant was suffering from Alcohol related diseased even prior to availing the policy. He remained admitted in PGI for one week and he has concealed these material facts. In these circumstances the policy became void and OP is justified to repudiate the claim. In support of these submissions OP has cited “2018 (2) CPJ 204 Charanjit Singh vs. Life Insurance Corporation of India, (NCDRC) (New Delhi)”, “2017(3) CLT 511: 2017 (3) CPR 520 Siddhant Khare vs. Branch Manager, SBI Life Insurance Co. Ltd. (NCDRC) (New Delhi)”, “2018 (3) All MR 19 Prashant Dattarya Patre vs SBI Life Insurance Company Ltd., (NCDRC) (New Delhi)” and “2018 (1) CPR 167: 2018 (2) CPJ 445 Allaudin Alias Ajauddin Vs. Kotak Mahindra Old Life Insurance Ltd..(NCDRC) (New Delhi)”.
10. We have given careful consideration to the rival submissions and gone through the case law.
11. The brief facts are that Nardev Singh husband of the complainant Gurwant Kaur availed insurance cover from the OP. Copy of the policy is Ex.C-3. The sum insured is Rs.10 Lakh. The policy commenced from 22/2/2014. Nardev Singh expired on 10/10/2015. Till that date the installments were paid regularly. The OP has repudiated the claim vide letter dt.31/12/2016 Ex.C-13 from the perusal of this letter it emerges that the answers regarding the state of health of Nardev Singh were false and the OP has repudiated the claim on the ground of suppression of material facts which had bearing on the granting of risk.
12. In this repudiation letter the OP has not repeated the material facts allegedly suppressed by DLA Nardev Singh. However OP has enclosed copy of Form No.3816 ( Ex.C-14) to support the repudiation. On the basis of Form No.3816, the OP has tried to prove that DLA remained admitted from 13/10/2012 to 20/10/2012 at PGIMER, Chandigarh. As per this Form No.3816 the diagnosis arrived at in the hospital was Alcohol related liver disease with ascites/ Jaundice/ Coagulopathy. Therefore, the main point for determination is whether the OP was justified to repudiate the claim on the basis of his admission in the PGIMER, Chandigarh from 13/10/2012. In order to answer this point, other relevant facts are also to be looked into. The condition at the time of discharge on 20/10/2012 is mentioned as Symptomatically better. History of illness as per record case summary is mentioned as below:-
“40 years old male admitted with h/o abd distension. Decreased urinal output, fever & Jaundice. Pt. was a reformed alcoholic earlier VGIE done 4 years back and was on F/v in DMC. On admission, UGA8/0”. After referring to the other facts, it was mentioned that patient improved symptomatically.”
Therefore vide this report, it is mentioned that he was symptomatically better. History of illness also shows that patient was reformed alcoholic. It is clear that after treatment, he was in a better position.
13. In the case of “Veerpal Naggar Supra” the Hon’ble State commission has concluded that unless and until a person is hospitalized or undergone operation for a particular disease in near proximity of obtaining insurance policy or any disease in which he has never been hospitalized or undergone operation is not a pre-existing disease.
14. The policy was obtained by DLA on 22/02/2014. The treatment from PGIMER, Chandigarh was taken from 13/10/2012 to 20/10/2012. The Hon’ble State Commission summed up that such a disease should not be existing at the time of taking the policy but also showed have existed in the near proximity. The near proximity is further elaborated as near past says six months or a year, to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease. From the contents of Form No.3816, it emerges that treatment was more than one year prior to availing the policy and at the time of discharge the condition was symptomatically better. Therefore, keeping in view all these facts, it can be concluded that the repudiation of the claim on the basis of alleged pre-existing diseases is not sustainable. Therefore, the repudiation amounts to deficiency in service.
15. For the reasons recorded above, the complaint is partly accepted with costs of Rs.10,000/- to be paid to the complainant by OPs No.1 & 2 and OPs No.1 & 2 are directed to pay the claim amount of Rs.10 lac within a period of 45 days from the date of the receipt of the certified copies of this order. As repudiation is not sustainable, therefore complainant is also entitled to compensation by way of interest @ 9% per annum from the date of repudiation i.e.31/12/2016 till payment. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.
ANNOUNCED
DATED: 12/07/2019
B. S. Dhaliwal Inderjeet Kaur M. P. S. Pahwa
Member Member President
