Haryana

Karnal

425/2012

Deepak Gupta S/o Suresh Pal Gupta - Complainant(s)

Versus

Life Insurance Corporation Of India - Opp.Party(s)

Gurmit Singh Juneja

14 Dec 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.  

                                                          ComplaintNo.425 of 2012

                                                          Date of instt.: 5.09.2012

                                                          Date of decision: 29 .12.2015

 

Deepak Gupta son of Sh.Suresh Pal Gupta, resident of House no.1076, Sector 2, Panchkula.

                                                 .                                ……..Complainant.        

                                      Vs.

1.Life Insurance Corporation of India, Divisional Office, Post office box No.106, Jeevan Parkash, 489, Model Town, Karnal through its Senior Divisional Manager.

 

2.Manager Claims, Life Insurance Corporation of India, Divisional Office, Jeewan Parkash Building, Sector 17-B, Chandigarh.

.                                                                           ………  Opposite Parties.

 

                     Complaint u/s 12 of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……….President.                

                   Sh.Anil Sharma…….Member.

 

Present:-       Sh.Dheeraj Sachdeva Advocate for the complainant.

                   Sh.Satpal Singh Advocate for the Opposite Parties.

ORDER:

         

                    This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that his father Suresh Pal Gupta,(the deceased life assured) submitted the proposal No.4259 dated 27.6.2009 and another proposal dated 28.6.2009 for insurance of his life, on the request of agent of the Opposite parties ( in short Ops).Authorized doctor of the Ops examined the life assured before acceptance of the proposal and issuance of the policy of insurance. Thereafter, the Ops issued the policy No.176572154 and another policy  No.176571773. The sum insured in each policy was Rs.five lac. Earlier also Suresh Pal Gupta was insured with the Ops, vide other insurance policies and the details of the same were given in the proposal form. Suresh Pal Gupta, who was working as J.T.O in the Bharat Sanchar Nigam Limited, expired on 14.8.2010, whereas his wife Smt.Naresh Kumari had already expired on 12.01.2005. The complainant was nominee of the life assured, therefore, he gave intimation regarding death of the life assured to the Ops and requested for release of the sum insured alongwith other benefits in respect of the policies of the insurance. The required documents were submitted by the complainant to the Ops. Thereafter, the OPs got investigated the matter  through their own resources. After lot of efforts made by the complainant for releasing the amount due, the Ops vide letter dated 26.4.2012  informed him about the decision to repudiate all the liabilities under both the polices for allegedly withholding correct information regarding health of the life assured at the time of effecting insurance. The repudiation was neither realistic nor justified,  but  was   with malafide intent to deny the complainant, the justified claim with regard to death of his father.  Ops arbitrarily observed that father of the complainant did not mention about suffering of the slipped disc and viral fever for which he had taken treatment from the hospital. As per settled practice of the  Ops, their agents in order to complete their target approach their running clients for insurance and obtain their signatures on proposal forms and details are filled by the agents only. Even otherwise, father of the complainant was already insured with the Ops under various other  policies, which were given in the proposal form. Therefore, it did not lie in the mouth of the Ops that life assured had violated the terms and conditions of the  policy of insurance. Moreover, the death of the life assured had not taken place on account of slipped disc or viral fever. The repudiation of the claim by the OPs was simply  an afterthought and without any basis, which amounted to deficiency in services and unfair trade practice on the part of the Ops.

 

2.                 Notice of the complaint was given to the Ops, who put into appearance and filed written statement controverting the claim of the complainant. Objections have been raised that complaint is not maintainable in the  present form; that the complainant has no loucs standi and cause of action to file the present complaint; that the complainant has not approached this Forum with clean hands; that the present complaint is an abuse of the process of law and that this Forum has no jurisdiction to entertain  and decide the present complaint.

 

                   On merits, it has been admitted that   policy no.176571773 dated 15.6.2009  and another policy No.176572154 dated 27.6.2009 each  for Rs.five lac were issued by the OPs to the life assured Sh.Suresh Pal Gupta. It has also been admitted that deceased life assured was medically examined.. However, it has been submitted that medical examiner’s report does not absolve the life assured of his obligation to disclose the facts. Insurance is a subject  matter of uberrima fides i.e. utmost good faith and it is the duty of the life assured to disclose all the facts which the insurer cannot know by his general prudence. The deceased life assured was having slipped disc and fever problem since the year 2007 as is evident from leave availed by him from his department, but he concealed this fact at the time of purchasing the policy. It has further been pleaded  that claim of the complainant was rightly repudiated vide speaking order dated 26.4.2012, as per Section 45 of the Insurance Act, 1938 and he was duly informed about the same.  The other allegations made in the complaint have been denied.

 

3.                 In evidence of the complainant, his affidavit Ex.C17,affidavit of Dr.Rajiv Kumar Ex.C18 and documents Ex.C1 to Ex.C16 have been tendered.

 

4.                 On the other hand, in evidence of the OPs, affidavit of Sh.Ajay Gupta, Manager Legal Ex.R1 and document Ex.R2 have been tendered.

 

5.                 We have appraised the evidence on record,  the material circumstances of the case and the arguments advanced by the learned Counsel for the parties.

 

6.                 Suresh Pal Gupta (the deceased life assured) had  obtained two policies from Ops one bearing  No.176572154 dated 27.6.2009 and another  bearing No.  No.176571773 on 5.6.2009  each for Rs.five lac. He died on 14.8.2010. The complainant being nominee of the life assured submitted the claim to the Ops,  but his claim was repudiated on the ground that life assured was having slipped  disc and   viral fever, he consulted doctor and took  treatment for the same before submission of the proposal forms, but he did not disclose about the same in the proposal forms, rather gave false answers to the questions 11-A to 11-E and 11-I in the proposal forms. 

 

7.                 The learned counsel for the Ops put a great thrust upon the contention that life assured got medical treatment for viral fever and remained on  earned leave on medical ground from 24.5.2007 to 28.5.2007 and further availed earned leave on medical ground from 5.6.09 to 12.6.2009 for slipped disc  problem as is evident from the documents Ex.C9 to Ex.C13, but  in the proposal forms he did not disclose about these facts knowingly, therefore, the contract of insurance became void, because the contract of insurance is based on principle of uberrima fide  i.e. utmost good faith and concealment of any material  fact renders the policy void. It has further been argued that the deceased concealed the material facts in the proposal forms for obtaining policies from the Op, therefore,  the claim of the complainant was rightly repudiated in view of second part of the Section 45 of the Insurance Act. In support of his contention he relied upon Life Insurance Corporation of India, Bhagwan Singh Road, Jaipur, Rajasthan Versus Smt.Santosh Devi revision petition No.3042 of 2008 decided by the Hon’ble National Commission on  3.09.2014,  Life Insurance Corporation of India Versus  Shahidha Khatoon 2014(1) CPC 88, Life Insurance Corporation of India Vs. Lakhbir Kaur 2014(2) CPC 101, Life  Insurance Corporation of  India Versus   KrishanChander Sharma , revision petition No.1935 of 1999 decided by the Hon’ble National Commission on 23.1.2006, Usha Rani and another Versus Life Insurance Corporation of India , revision petition No.4875 of 2012 decided by the Hon’ble National Commission on 5.2.2013 and Jai Kishan Versus Life Insurance Corporation of India, revision petition no.1883 of 2015 decided by the Hon’ble National Commission on 12.8.2015.

 

8.                    There is no dispute regarding the proposition of law laid down in the aforecited authorities, but the same do not cut much ice in favour of the Ops under the facts and circumstances of the present case.  In Smt.Santosh Devi’s case(Supra), the life assured remained admitted in the De-addiction centre from 18.8.2003 to 19.3.2003 and he obtained policy of one lakh on 17.11.2003 and died on the  intervening night of 13-14/1/2004 due to heart attack. Under those circumstances, it was held  by the Hon’ble National Commission that misrepresentation and concealment of fact  made by the life assured in the proposal form was  certainly of material fact. It was further held that it cannot be said that  had the  life assured disclosed in the proposal form that he was admitted to De-addiction centre  for 16 days after taking leave from his office, the insurer would still have accepted the proposal and that too on the same premium which  was charged from him, on representation that he  was a hale and hearty person,   who was not hospitalized at any time during the last five years, was not suffering from any ailment and was neither smoking nor taking liquor. In  Shahida Khatoon’s case (Supra), the  deceased life assured was suffering from Diabetes Mellitus, but he did not disclose about the said disease in the proposal form.  Under those circumstances, it was held by the Hon’ble National Commission that material fact was not disclosed, which amounted to violation of the terms of insurance contract on the part of the insured, therefore, claim was rightly repudiated by the insurer. It was also held that  term material fact is not defined in the  Act, therefore, it has been understood and explained in the general terms to mean as any fact which influences the judgment of a prudent insurer  in fixing the premium or determine whether he would like to accept the risk.  In Lakhbir Kaur’s case (Supra) the insured told his age as 32 years at the time of obtaining the policy, but from pass port record, it was revealed that his age was 46 years. Under those circumstances, it was held by the Hon’ble State Consumer Disputes Redressal Commission, Punjab that repudiation of the claim was justified on account of concealment of material fact.  In  Krishan Chander’s case(Supra), the deceased life assured got treatment for Asthma  and allergic  bronchitis from 23.5.92 to  9.6.1993 and again from 28.7.1993 to 12.8.1993, but that fact was not disclosed  in the proposal form.  Though the life assured died due to heart failure on 22.9.1994, yet claim  put forth by her husband was repudiated on the ground that she withheld information regarding  her health at the time of purchasing the policy. It was held by the Hon’ble National Commission that answers given by the life assured in the  proposal form were false  to her knowledge, therefore, insurance company was justified in repudiating the claim.  In Jai Kishan’s case(Supra), the insured was in the habit of taking drugs and he had taken treatment at de-addition centre, but obtained insurance policy of  Rs.ten lac without disclosing such facts in the proposal form. Under those circumstances, it was held by the Hon’ble National Commission that claim was rightly repudiated by the insurance company. In Usha Rani’s case(Supra), the life assured was suffering from IHDCVA Angina, for which he had taken treatment from hospital from 29.1.2001 to 8.2.2001 and also remained on earned leave from 14.4.2000 to 10.2.2011 and on medical leave from 11.2.2000 to 29.4.2011, but those facts were not disclosed at the time of revival of lapsed policy. He died due to heart attack. Under those circumstances, it was held by the Hon’ble National Commission that assured was under obligation to give correct answers pertaining to his health at the time of revival of lapsed policy. The insurer rightly repudiated the claim.

 

9.                 In the instant case, it is admitted fact that deceased remained on earned leave on medical ground from 24.5.2007 to 28.5.2007 on account of viral fever. He further remained  on  earned leave from  5.6.2009 to 12.6.2009 on account of slipped disc. He had not disclosed about the availing of earned leave for the viral fever and slipped  disc in the proposal form. Therefore, the material question which arises for consideration is whether non disclosure of the availing of earned leave for viral fever and slipped  disc amounted to concealment of material facts from the Ops.

 

10.               The term material fact has not been defined in the Insurance Act, therefore, it has been understood and explained  by the court 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.   In this context reference may be made to the judgment of Hon’ble Supreme Court in  case Satwant Kaur Sandhu Versus New India Insurance Co.Ltd. 2009(10) SCR 560.   

 

11.                     Affidavit of Dr.Rajiv Kumar Ex.C18 is to the effect that he was family doctor of the life assured who had viral fever  in May, 2007 and slipped  disc in June, 2007, which were completely cured. Life assured was not  having history of any disease, which could be fatal to his health and he died due to sudden heart failure, which is very frequent in his age group in normal routine life. Thus, it is emphatically clear that life assured had not suffered from any disease on account of which it could be said that he was not having good state of health.   He obtained the insurance policies in the month of May, 2009 and died due to heart attack on 14.8.2010. There was no nexus between viral fever and slipped disc and heart attack. Viral fever cannot be considered as disease by itself, which is just a symptom and can be due to several causes. Fever accompanies a disease, but there is no evidence on record in this case that viral fever suffered by the life assured was on account of some disease. Viral fever generally cures within a week even if no medicine is  taken. Similarly, slipped disc is also not a disease. Generally, it cures by itself within certain period and only rest and precautions are required for setting the slipped  disc at a proper position.  Therefore, it cannot be said by any stretch of imagination that life assured was suffering from any disease  within a period of five years proceeding  to  submitting  of the  proposal form. Therefore, non disclosure of viral fever and slipped disc cannot be termed as concealment of material fact.  In this regard sustenance  may be sought from the view  expressed by the Hon’ble National Commission in LIC of India Versus  Baljit Kaur 2013(3) CPC 54 wherein the  life assured had suffered from  Pyrexia fever and remained admitted in the hospital from 12.9.2002 to 11.10.2002 and took  leave due to ill health, before taking  the insurance  policy. He did not disclose these facts in the proposal form. Under those circumstances, it was held that fever cannot be considered as disease by itself. It is just a symptom and can be due to several causes. The  Pyrexia  i.e. fever was of unknown origin, but the cause of fever remained unidentified.  Therefore, the question of life assured having  known  the disease he suffered from and having deliberately not disclosed it, in the proposal form would not arise at all.  In LIC  Versus Surekha Rameshrao  Mankar 2011(4) CPJ 663,  the life assured suffered from disease ‘Harpes Zoster’ relating to eye, but he died due to heart attack. It was held by the Hon’ble National Commission that disease in no way related to the heart attack.  Normally, while filling up proposal form, it is not expected that the insured has to also state all the incidents of viral infections from which he may have suffered, since these are frequent, common place and curable. Therefore, not revealing information about the curable viral infection did not amount to suppression of material fact.  Reference with advantage may also be made to LIC of India Versus Smt.Rukma Devi decided by the Hon’ble State Consumer Disputes Redressal Commission, Uttaranchal in  First appeal No.272 of 2005 decided on 12.4.2006 wherein the life assured remained sick  due to  entric fever/pyrexia, contacted medical practitioner    and remained on leave for 56 days on medical ground. It was held that entric fever/pyrexia commonly known as Typhoid is not a serious disease and if insured had in the past was laid down with this disease for some time and then took leave to take rest on two occasions for a period of 28 days each, it would not mean that the insured had in fact been requiring treatment of the said disease for long period from a medical practitioner.  In such a situation , the insured while giving answer in negative to the question to that effect, would not mean that he had made suppression of material fact as regard his health. It was further held that taking of medical leave is not a ground to presume that insured was suffering from  any disease.

                  

 12.                   In view of the afore discussed facts and circumstances, we have no hesitation in concluding that  not disclosing about the viral fever and slipped disc and availing earned leave on medical ground   for such  problem cannot  be considered as concealment of material fact from the Ops in any manner. Consequently, the order of repudiation of the claim of the complainant by the Ops cannot be termed as  legal or justified. Thus, there was  deficiency in services on the part of the Ops.

 

 

 

13.               Therefore, as a sequel to the foregoing discussion, we accept the present complaint and direct the Ops to make the payment of the sum insured under the insurance policy no. 176572154 and another policy  No.176571773, together with all other benefits admissible under the said policies, alongwith interest @ 9% per annum from the date of filing of the present complaint i.e. 5.09.2012  till its actual realization. The Ops shall make the compliance of this order within a period of thirty days from the date of receipt of the copy of this order.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
dated:29.12.2015                                                                      

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

(Anil Sharma ) 

Member.

 

 

         

 

 

 

 

 

Present:-       Sh.Dheeraj Sachdeva Advocate for the complainant.

                   Sh.Satpal Singh Advocate for the Opposite Parties.

 

                  Arguments heard. Vide our separate judgment of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:29.12.2015                                                                       

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

(Anil Sharma ) 

Member.