Surinder Pal Singh complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite parties to make the payment of Rs.1,00,000. the policy amount alongwith other accrued benefits and to pay Rs.50,000. as compensation for harassment, mental tension and Rs. 5000. as litigation expenses. <br /> 2. The complainant averred in his complaint that he has purchased an insurance policy No. 131898678 commenced from 15-12-2003 for a sum of Rs.1,00,000. under table No. 75 for a term of 20 years vide proposal No. 4940 dated 12-12-2003 in the name of her minor daughter and the premium installments of the policy are paid within due dates. Rubina the daughter of the complainant expired suddenly on 5-4-2004. After the death of Rubina the daughter of the complainant the complainant being legal heir of deceased submitted all the required documents to the opposite parties for getting the insurance claim of the deceased Rubina. The opposite parties vide letter No. 40 dated 10-3-2006 repudiated the claim of the complainant on fake ground of old illness which is quite illegal, unlawful and against the rules and facts. At the time of submitting the proposal form the Rubina was got medically checked by the recognized doctor of the opposite parties and he has not deducted any thing wrong with the deceased daughter of complainant. Moreover no fact regarding health of the deceased Rubina was ever concealed in the proposal form. After the receipt of the repudiation letter the complainant approached the opposite parties with the request to withdraw the repudiation letter and make the payment of the insurance claim regarding death of Rubina but the opposite parties flatly refused to pay anything to the complainant which amounts to clear cut deficiency in service on the part of the opposite parties. Hence the present complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 12-7-2006 complaint was admitted and notice was ordered to be issued to the opposite parties. <br /> 4. On receipt of notice the opposite parties appeared through Sh. Lakhbinder Singh Advocate and filed written statement taking preliminary objections that the complainant does not fall under the definition of consumer, under the Consumer Protection Act, 1986, so the complaint is liable to be dismissed. This Hon'ble Forum has got no jurisdiction to hear and try the present complaint and the points involved in this case are of complicated in nature. Only the civil court has jurisdiction to hear and try this complaint. The complainant has no locus standi to file the present complaint. The contract of insurance is of utmost good faith. In this case the complainant and her daughter Rubina life assured have intentionally and knowingly with malafide intention to defraud the opposite parties concealed the material fact of her serious disease of congenital heart disease from which she had been suffering from her birth and taken treatment and had undergone operation also in AIIMS, New Delhi before the purchase of policy. Rubina and complainant had signed the proposal form and declaration for good health and signed the statements and has given wrong answers to the questions regarding her health. The contract between Rubina life assured now deceased signed by the complainant also and opposite parties was void abinitio. Under the law of contract and under the law of insurance act and under the terms and conditions of the insurance policy of Rubina and on the basis of declaration contained in the proposal form and on the basis of personal statements of the complainant and said Rubina and law laid down by the various Hon'ble Courts and Hon'ble Commission the complainant is not entitled for any claim and this complaint is liable to be dismissed. The complainant has not produced any succession certificate in this case and under the Law of Hindu Succession Act the complainant alone is not entitled to claim any amount in this case. This complaint is liable to be dismissed for non production of succession certificate and non joinder of necessary parties to the complaint as the mother of the deceased Rubina has not been impleaded as a part to the complaint. This complaint is premature as the complainant has not sent any representation to the Zonal Manager LIC of India Norther Zonal Office, Jiwan Bharti Building, 124, Cannaught Circus, New Delhi as advised to him by the opposite party No. 1 through his letter of repudiation dated 10-3-2006 sent to the complainant. The claim of the complainant has been rightly, legally, lawfully and bonafidely repudiated by the opposite parties after considering all the facts with full application of mind. This complaint is time barred and liable to be dismissed. On merits the opposite parties averred that the complainant and Rubina intentionally and knowingly withheld the material fact regarding the congenital heart disease of Rubina from which she had been suffering since her birth at the time of making the proposal to defraud the opposite parties. They further averred that only one premium was deposited at the time of taking of the policy. Life assured died within 3 months 20 days from taking the insurance. So no question of making premium installments of insurance policy withing due dates arises. It is admitted that Rubina was died on 5-4-2004 as per the death certificate produced by the complainant but she did not die all of sudden but die due to existing disease of congenital heart disease from which she had been suffering since her birth. The opposite parties had written many letters to the complainant to produce the record of treatment and undergone operation of heart surgery of Rubina in AIIMS, New Delhi but he has not produced the required record so far with the malafide intention to the opposite parties till date. The claim of the complainant is not genuine at all regarding the insurance claim of deceased Rubina. The claim of the complainant has been repudiated on genuine grounds of fraud and concealment of material facts regarding disease of congenital heart disease of Rubina. The repudiation is legal, lawful and within the rules and facts. Rubina was not got medically examined thoroughly by the doctor of the opposite parties. Medical report conducted by the doctor of the LIC is only a questionnaire issued relating to health of life proposed being filled in by the medical examiner on the basis of answers given by the proposer. The medical officer of the insurance company is not to know about the congenital heart disease of its own by routine checking. It is for the assured to give correct information on her health which she did not disclose at all at that time regarding her aforesaid disease of congenital heart disease from which she had been suffering since her birth. The complainant is not entitled for any claim and there is no deficiency of any kind on the part of the opposite parties towards the complainant in this case. The complainant has no right to ask the opposite parties to withdraw the said letter of repudiation. So the complaint of the complainant may kindly be dismissed with special costs. <br /> 5. All the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1, photocopy of repudiation of claim letter dated 10-3-2006 Ex.C-2, photocopy of policy cover note bearing police No. 131898678 dated 15-12-2003 Ex.C-3, photocopy of death certificate Ex.C-4 of Rubina and closed his evidence. <br /> 6. In order to rebut the evidence of the complainant the opposite parties tendered in evidence affidavit of Sanjay Sharma Marketing Manager of LIC Ex.R-1, affidavit of J.S.Sekhon Ex.R-2, affidavit of Satya Badhan Manager Claims Ex.R-3, affidavit of Dr. Rishi K. Arya M.D. Cardiologist, Jallandhar Ex.R-4, copy of proposal form Ex.R-5, copy of policy Ex.R-6, copy of medical attendance certificate form No. 3784 Ex.R-7, copy of certificate of hospital treatment claim form No. 3816 Ex.R-8, copy of letter written by LIC Manager claims dated 1-7-2005 Ex.R-9, copy of letter dated 1-7-2005 written by LIC to Surinder Pal Singh Ex.R-10, copy of letter dated 11-8-2005 Ex.R-11, copy of letter dated 1-10-2005 Ex.R-12, copy of envelope addressed to the Manager Claims LIC Jallandhar Ex.R-13, copy of letter dated 20-11-2005 Ex.R-14, copy of envelope registered cover sent by Surinder Pal Singh Ex.R-15, copy of letter dated 1-12-2005 Ex.R-16, copy of letter dated 1-12-2005 sent to Surinder Pal Singh and carbon copy of Branch Manager, LIC, Faridkot Ex.R-17, copy of letter dated 19-12-2005 Ex.R-18, copy of envelope registered sent by Surinder Pal Singh to LIC Jallandhar Ex.R-19, copy of letter dated 22-12-2005 Ex.R-20, copy of letter dated 22-12-2005 written by Manager claims to Surinder Pal Singh Ex.R-21, copy of letter dated 16-2-2006 Ex.R-22, copy of envelope sent by Surinder Pal Singh registered to LIC Jallandhar Ex.R-23 and closed their evidence by order by the Forum on 19-3-2007. <br /> 7. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 8. Learned counsel for the complainant submitted that the opposite parties have illegally and arbitrarily repudiated the claim of the complainant with regard to policy No. 131898678 dated 15-12-2003. There is no suppression of the material facts by the complainant in the proposal form for purchasing above noted insurance policy. <br /> 9. Learned counsel for the opposite parties have submitted that the complainant at the time of the execution of the insurance proposal form have concealed congenital heart disease of Rubina daughter of the complainant for whom the policy in question was purchased by the complainant. So complainant is not entitled to the amount in question with regard to policy mentioned above. <br /> 10. Learned counsel for the complainant have submitted that the opposite parties have not proved on the file with regard to admission and treatment of Rubina in AIIMS with regard to congenital heart disease at any time. <br /> 11. Learned counsel for the opposite parties have submitted that medical attendance certificate Ex.R-7 and certificate of hospital treatment Ex.R-8 proved congenital heart disease of Rubina. <br /> 12. Learned counsel for the complainant has submitted that to prove the contents of the proposal form Ex.R-5 the opposite parties have not examined their owned witnesses Jashanjit Singh agent of the opposite parties who filled up the proposal form and Dr. Archana Sethi who medically examined Rubina at the time of execution of the proposal form by the complainant and his daughter Rubina. <br /> 13. From the perusal of the proposal form Ex.R-5 it is made out that Jashanjit Singh agent of the opposite parties filled up the proposal form. Proposal form has been witnessed by Jashanjit Singh as per his signatures. The part of proposal form for medical case only have been signed by Dr. Archana Sethi engaged by the opposite parties to conduct medical of the insured and this part of the form also have been by Rubina and her father Surinder Pal Singh. The certificate signed by Dr. Archana Sethi with regard to admitting answers to the questions in her presence and appending signatures by Rubina and her father Surinder Pal Singh was required to be proved by Dr. Archana Sethi when there is a dispute with regard to the contents of the proposal form. So prima facie it cannot be said that the complainant has suppressed or withheld any information intentionally and willfully to defraud the opposite parties. This is a case of medical insurance so the doctor of the opposite parties was required to examined Rubina in accordance with law. There is no medical examination report on the file with regard to conducting medical examination of Rubina by Dr. Archana Sethi. This part of the evidence has been withheld by the opposite parties. <br /> 14. Even from the perusal of the medical attendance certificate Ex.R-7 and certificate of hospital treatment Ex.R-8 dated 7th January 2005 and 17-8-2004 respectively make out that death of Rubina was due to congenital heart disease and due to cardiogenic shock. She was having complaint of breathlessness since about 3 days of admission in G.G.S. Medical College and Hospital, Faridkot on 5-4-2004. As per affidavit Ex.R-4 of Dr. Rishi K. Arya M.D. Cardiologist, Jallandhar, the congenital heart disease is a disease by birth. It comes to the knowledge of the patient by symptoms of breathlessness. It is a matter of common knowledge that breathlessness can be felt by a person sitting near to the patient. If there would have been any breathlessness then Dr. Archana Sethi doctor of opposite parties at the time of putting her signatures on the proposal form Ex.R-5 might have skipped of making mention to this fact. In such like circumstances signatures of doctor of the opposite parties and medical examination of the insurer at the time of acceptance of the proposal form cannot be considered to be routine-formal matter especially when a medical policy is purchased by the insured. It is the duty of the opposite parties and doctor thereof to examine insured medically. Breathlessness of Rubina could have been detected by Dr. Archana Sethi at the time of conducting medical examination of Rubina before purchase of the policy Ex.R-6 by Rubina through her father Surinder Pal Singh complainant. So it cannot be said that complainant has withheld and suppressed congenital heart disease of Rubina. <br /> 15. In such like circumstances the complainant having not submitted record of the AIIMS with regard to operation of Rubina about her congenital heart disease is not helpful to the opposite parties. Complainant has never admitted with regard to admission of Rubina before or after purchase of the policy in All India Institute of Medical Sciences, New Delhi for her operation. Rubina is not alive on whose information the doctors of Shri Guru Gobind Singh Medical College and Hospital, Faridkot have made entry in the form No. 3816 Ex.R-8 and form No. 3784 Ex.R-7 with regard to her operation at All India Institute of Medical Sciences, New Delhi for congenital heart disease.<br /> 16. In the evidence Dr. Ravinder Garg Registrar of Guru Gobind Singh Medical College and Hospital, Faridkot and Dr. H.L.Kajal Principal and Head of G.G.S. Medical College and Hospital, Faridkot, the opposite parties have failed to prove that Rubina was operated with regard to Congenital Heart disease in AIIMS. Dr. Ravinder Garg in his cross-examination has admitted that he has not seen the previous medical record of the patient at the time of checking of the patient. The patient as per his statement herself have reported the history with regard to her operation about heart disease in AIIMS, New Delhi. In his cross-examination Dr. Ravinder Garg has admitted that patient had no record with her to state previous history. Clinically they could diagnosed the patient without undergoing any pathological test. So also Dr. H.L.Kajal have admitted that they have not seen the previous record from the patient as the entry depends upon the history told by the patient's relative at the spot. She was very serious and she was taken treatment which was prescribed, not only this Dr. H.L.Kajal has admitted that there are so many causes for cardiac shock including this congenital heart disease. There is no record with regard to previous history of the patient at least which might have signed by the patient or the complainant. At the time of the admission of the patient on 5-4-2004 in the G.G.S. Medical College and Hospital, Faridkot where she expired at 3.00 P.M. The patient as per certificate of hospital treatment Ex.R-8 was feeling breathlessness since about 3 days so it cannot be said that Rubina was feeling breathlessness at all the times. Thus it can be said that complainant or Rubina not be having knowledge of internal and hidden disease of heart.<br /> 17. It is found held in Life Insurance Corporation of India and others Versus P.S.Aggarwal 2005 (1) Consumer Law Today-494 that the LIC is suppose to prove that at the time of taking policy the person who gave information knew about such a disease and he withheld it with an intention to defraud the insurance company. In this authority even the insurance company collected record from the hospital where the patient was earlier treated but the doctor who recorded the information in the discharge summary was not examined by the insurance company so repudiation of claim was held to be not justified. Even in the case in hand there is no discharge summary of AIIMS on the file so it cannot be said that Rubina was operated upon in AIIMS with regard to heart disease at any time. Even as per this authority if the cause of death is mentioned as heart attack with difficulty in breathing which could also not be known even to the doctor of the insurance company despite detailed examination then it cannot be said that there is material concealment of disease of breathlessness by the insured. As per this authority it is difficult to accept the contention that there was material concealment. So insurance company was held to be not justified in repudiating the claim of the complainant. <br /> 18. As per Joginder Kaur & others Versus Life Insurance Corporation of India and another 2001 (3) Consumer Law Today-633 merely producing copy of the hospital record-medical certificate as evidence does not mean that the contents thereof are necessarily true. The mere fact that the death occurred only after 11 months of taking the insurance policy is not a suspicious circumstance to deny the relief to the complainants. There must be direct evidence to prove that assured was suffering from any prior ailment or disease. In such like circumstances the provision of Section 45 of Insurance Act, 1938 relied upon by the learned counsel for the opposite parties in this regard is not helpful to the opposite parties in any manner. As per this authority it has been held by the National Commission and the Commission of State of Punjab in various judgments that the case history recorded by the doctor of the patient at the time of admission for treatment is not a cogent and convincing evidence to repudiate the claim unless it is coupled with medical record for treatment prior to submission of the proposal form. So entries made by attending doctor of the hospital in the record of the case history cannot be held as deciding factor in the present case. Virtually there is no record of the previous history about chronic disease of Rubina on the file. It is found held in National Insurance Company Ltd. Versus Suraj Parkash 2005(2) Consumer Law Today-4 where there is no evidence on record to show that complainant had even taken any treatment for alleged disease prior to his examination in any hospital then it cannot be said that complainant knew about the disease at the time of taking of the policy.<br /> 19. In such like circumstances Life Insurance Corporation of India Versus Kewal Kumar 1999(2) Consumer Law Today-648 relied upon by the learned counsel for the opposite parties is not helpful to the opposite parties in any manner as Rubina was not suffering from Asthma as held in this authority. Rubina was feeling breathlessness since about 3 days of her death so it cannot be said that Rubina could have a notice of her heart disease. Even this authority in view of the above noted authorities of National Commission is not helpful to the opposite parties. <br /> 20. There is no evidence on behalf of the opposite parties if the patient was operated in AIIMS for heart disease so Budhimati Naik Versus Bhartiya Jeevan Bima Nigam 2001(1) Consumer Law Today-537 in this regard and with regard to Section 45 of Insurance Act, 1938 relied upon by the learned counsel for the opposite parties is not helpful to him in any manner. <br /> 21. Since there is no concealment of material facts by the complainant so T.N.Kapoor Versus Branch Manager, New India Assurance Co. Ltd. 2003(3) Consumer Law Today-283 in this regard relied upon by the learned counsel for the opposite parties is not helpful to them in any manner. Learned counsel for the opposite parties have also relied upon Vijay Kumar Jain Versus National Insurance Company Ltd. 2003(2) Consumer Law Today-75, as per this authority petitioner got insurance policy only after he found that his TMT test was positive and did not disclose this fact of his severe heart ailment so it was considered to be a material concealment ;of the fact but in the case in hand there is no such record on the file if Rubina ever has purchased the policy after detection of congenital heart disease. So also Life Insurance Corporation of India Versus Minu Kalita 2003(2) Consumer Law Today-201 is not helpful to the opposite parties as opposite parties have failed to prove that complainant intentionally suppressed material facts regarding state of her health, age and income. As per this authority the insured was suffering from cancer whereas in the case in hand Rubina is stated to have suffered from breathlessness with regard to which there is no proof on the file. Thus this authority also is not helpful to the opposite parties. <br /> 22. Since the complainant have not taken two policies and insured is not proved to have given wrong answers regarding her previous health so Life Insurance Corporation of India, Chandigarh Versus Shri Prem Nath Garg 1998(2) Consumer Law Today-51 relied upon by the opposite parties is not helpful to them in any manner. <br /> 23. Since there is no fraudulent suppression of material facts by the insured of case in hand and there is no proof of treatment of Rubina by doctors of AIIMS so it cannot be said that there is fraudulent suppression of the material facts. AIR 1962 Supreme Court 814 Mithoolal Nayak Versus Life Insurance Corporation of India relied upon by the opposite parties is not helpful to them in any manner.<br /> 24. Nand Lal Sharma Versus Senior Divisional Manager, Life Insurance Corporation of India, Karnal reported 1998(1) Consumer Law Today-580 relied upon by the opposite parties to the effect that medical check up by doctors of LIC at the time of issuance of insurance policy is not very authentic and is routine cursory and superficial one is not helpful to the opposite as in this authority the patient is stated to have been suffering from pulmonary tuberculosis for the last more than two years whereas in the case in hand the breathlessness of Rubina could have been detected by the doctors of insurance company on physical appearance, so this authority is not helpful to the opposite parties in any manner. <br /> 25. Sanjay Kumar Aggarwal Versus Divisional Manager, LIC 2004(2) Consumer Law Today-456 with regard to suppression of pregnancy of insured at the time of taking policy is not helpful to the opposite parties as the complainant or Rubina have not concealed any material fact even the case in hand is related to breathlessness on account of congenital heart disease of Rubina. <br /> 26. Since the disease of AIDS has not been disclosed by the insured so the complaint of Niranjan Kaur was dismissed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh as per Life Insurance Corporation of India Versus Smt. Niranjan Kaur reported in 1999(2) Consumer Law Today-361 but the case of Rubina is very different from this authority who was allegedly suffering from heart disease by birth. Disease of AIDS resulting into death probably can be detected as to the time from which the patient was suffering but in the case of heart disease perhaps it is impossible to detect duration of the suffering of the patient from heart disease at the time of death of the patient. Even Rubina is stated to have suffered breathlessness just 3 days prior to her death, even as per record of the opposite parties. So this authority is not helpful to the opposite parties in any manner.<br /> 27. Since the case in hand is not related to operation for removal and transplantation of kidneys so Life Insurance Corporation of India Versus Sh. Jagan Nath Goel Advocate 1999(2) Consumer Law Today-358 in this regard relied upon by the learned counsel for the opposite parties is not helpful to them in any manner. <br /> 28. Since the complainant has not suppressed material facts at the time of purchasing of policy so Jothi Ammal Versus LIC of India and another 2003(3) Consumer Law Today-560 relied upon by the opposite parties is not helpful to them in any manner. <br /> 29. The opposite parties have repudiated the claim of the complainant. The Zonal office at Delhi if is approached by the complainant then they may not have different view then that of the opposite parties. Even opposite parties were bound to consult their Zonal Office before or after repudiation of the claim of the complainant. In such like circumstances appeal No. 627 of 2005 LIC Versus Kiran Rani whereby the complainant has been given option for getting decided claim of the complainant from the Zonal Claim Review Committee in Zonal Office of the opposite parties is not helpful to the opposite parties in any manner. It also shall prolong the case for considerable period, which is not requirement of law envisaged in Consumer Protection Act, 1986. <br /> 30. In view of the above noted facts and circumstances it is held that the opposite parties have illegally and arbitrarily repudiated the claim of the complainant vide letter Ex.C-2 dated 10-3-2006 with regard to medical policy Ex.C-3 purchased by the complainant with regard to insurance of life of his daughter Rubina. So there is a clear cut deficiency of services to be provided by the opposite parties to the complainant as they have not made payment of the amount claimed by the complainant with regard to insurance policy in question. So the complaint of the complainant is accepted with costs of Rs.500. and compensation of Rs.1000. for harassment, mental tension and inconvenience. Accordingly the opposite parties are directed to pay Rs.1,00,000. as insurance claim, Rs.1000. as compensation and Rs.500. as costs of the complaint, total of which is Rs.1,01,500. to the complainant within one month from the date of the receipt of the copy of this order, failing which the opposite parties shall pay interest at the rate of 12percent per annum on the amount of Rs.1,01,500. from the date of the decision of the complaint till the realization of the amount. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum <br /> Dated 11-7-2007<br /> <br />