STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                             UNION TERRITORY, CHANDIGARH

                                                APPEAL NO.2252 OF 2008

Sh. Vipin Gandhi, Husband of Late Smt.Sarita, R/o 15, G.D.Rail Vihar, Mansa Devi Complex, Sector 4, Panchkula.

                                                                                                            ….Appellant.

V E R S U S

 1]        Zonal Manager, Life Insurance Corporation of India, Zonal Office, ‘Jeevan Bharti’, Connaught Circus, New Delhi.

 2]        Sr. Divisional Manager, Life Insurance Corporation of India, Divisional Office, Sector 17, Chandigarh.

                                                                                                            ….Respondents.

BEFORE:             HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

                        HON’BLE MRS. NEENA SANDHU, MEMBER.

Argued By:             Sh. Sandeep Bharadwaj, Advocate for the appellant.

                        Sh. Rajesh Kumar, Advocate for respondent.

MRS. NEENA SANDHU, MEMBER

1.         This is an appeal filed by the complainant against order dated 21.10.2008 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 321 of 2008.

2.            Briefly stated the case of the complainant is that his wife Smt. Sarita, who expired on 4.8.2006, was holding three policies and out of these policies, the claim against one of the Policy i.e. Jiwan Plus Policy bearing No.162834584 dated 13.1.2006 for assured sum of Rs.5 Lacs was illegally repudiated by OPs vide letter dated 31.1.2008 on the ground that the deceased - Life Assured (LA) withheld the correct information regarding her health at the time of taking the policy.  It was averred that the LA had died due to cardiac arrest on 4.8.2006 while she was admitted in Fortis Hospital from 31.7.2006 to 4.8.2006.  It was next averred that in another policy issued to the Life Assured bearing No.162712189 for sum assured of Rs.1 Lakh, a similar objection was taken by OPs and later, the said policy was settled by allowing payment of Rs.1,38,817.72 to the complainant.  The complainant also averred that the Lfe Assured had never availed of any earned/medical leave during the period of 5 years preceding to her death nor there was any medical record with the OPs to prove that she was suffering from such disease prior to her availing the policy in question.  Alleging the repudiation of the genuine claim by OP Insurance Company as deficiency in service, the complainant had filed the present complaint.

3.                     The version of OPs is that when intimation regarding the death of L.A. was received by them, the policy in question had only run six months and 21 days. It was submitted that the claim was investigated by the Senior Branch Manager, who gave his report (Annexure R-5).  OPs next submitted that that from the medical record obtained from Fortis Hospital (Annexure R-6 (colly)), it was brought to their notice that the Life Assured  was suffering from diabetes mellitus type-II for the past one year and she had a history of weight gain for the part 4-5 years and was also suffering from Pickwicknian syndrome as well as breathlessness for past two year.   As per OPs, the L.A had not disclosed the material fact regarding her health at the time of filling up the proposal form or even before the policy was issued and as such, no claim was payable to her under the terms & conditions of the policy. Pleading no deficiency in service on their part in repudiating the claim of the complainant, OPs prayed for dismissal of the complaint. 

4.                     Parties led evidence in support of their contentions.

5.                     The learned District Forum, in its analysis of the complaint, recorded in the impugned order that the deceased (L.A) knew about her illness as was clear from the Proposal Form (Annexure R-2). The learned District Forum also recorded that despite having two policies in her name, she purchased this Policy on 13.1.2006 worth Rs.5.00 lacs and she was required to pay a premium of Rs.15,000/-. In the view of the learned District Forum, as per Annexure R-2 that the annual income of the Life Assured was only Rs.1.00 lac and if she had not known the disease from which she was suffering, she would not had gone for any other insurance much less an insurance giving a cover of Rs.5.00 Lacs within the meager income of Rs.8,000/- per month. As per the learned District Forum, the L.A. had come to know of her diseases and in order to secure the amount of Rs.5.00 Lacs for her family members, she opted for the Policy in question. Next dealing with the contention of learned Counsel for the Complainant that initially the maturity value of one of the Policies was withheld by the OPs and was subsequently paid and as such, the claim under this policy also should had been paid by the OPs, the learned District Forum did not find any merit in this contention. As per the learned District Forum, Annexure C-13 written by the Complainant proved that the proposal in that respect was submitted by the deceased on 12.8.2004, when she was not suffering from Diabetes or Pickwicknian Syndrome. Thus, in the view of the learned District Forum, the payment of the exgratia could not be held sufficient to allow the relief under complaint. In view of its foregoing discussion, the learned District Forum held that the claim made by he Complainant was rightly repudiated by the OPs. Holding no merit in the Complaint, the learned District Forum dismissed the same and left the parties to bear their own costs.   

6.                     Aggrieved by the said order of learned District Forum, the complainant has filed the present appeal. The appeal having been taken on board, notice was sent to the respondents and record of complaint case was summoned from the District Forum concerned. Sh. Sandeep Bhardwaj, Advocate appeared on behalf of the appellant/complainant whereas Sh. Rajesh Kumar, Advocate represented the respondents/OPs.

7.                     We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties. The issue involved in this case is whether there was any concealment of material information on the part of the Life Assured at the time of taking the insurance policy?

8.                     It has been argued by the counsel for the appellant that at the time of her death, the Life Assured was holding three policies and the respondent had paid the amount against Police No.162712189 on exgratia basis. The learned counsel vehemently argued that the Life Assured had neither availed of any earned/ medical leave during the period of five years preceding to her death nor there was any medical record with the respondent, which could prove that the Life Assured was suffering from any such ailment, as alleged, prior to availing the policy in question. The learned counsel argued that on 31.7.2010, the RBG of the Life Assured as recorded in the Medical Report of Fortis Hospital was 140 Mg/dl, which was normal and not on the higher side. It has been further argued that the learned District Forum has erroneously dismissed the complaint on the ground that there was a concealment of material facts on the part of Life Assured. To support his pleadings, the learned counsel for the appellant placed reliance on the authority rendered in the case of Oriental Insurance Company Limited & Anr. Vs. Mohinder Singh (Dr.) reported as 2009 (1) C.L.T 494.

9.                     On the other hand,  the learned counsel for the respondent submitted that there was a concealment of material information on the part of Life Assured while taking the insurance policy in question and as per the Proposal Form, the Life Assured had given wrong information that he was not suffering from the disease such as Diabetes Mellitus (Type II), Weight Gain, Pickwicknian Syndrome and breathlessness. He further argued that the Life Assured was suffering from Diabetes Mellitus (Type II) for the last one year coupled with history of weight gain, Pickwicknian Syndrome and breathlessness for the last two to four years. The learned counsel has placed reliance on the latest authority of Hon’ble Supreme Court of India in the case of Satwant Kaur Sandhu Vs. New India Assurance Company Limited reported as (2009) 8 Supreme Court Cases 316, wherein the Hon’ble Apex Court has held in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a ‘material fact’ and if the proposer has knowledge of such fact, he is obliged to disclose it to insurer particularly while answering questions in the proposal form and any inaccurate answer to said questions will entitle the insurer to repudiate its liability under the policy. The Hon’ble Apex Court further observed that the suppression/Non-disclosure/Misrepresentation as to material fact in the proposal form by the insured through he was suffering from certain disease at the relevant time tantamount to suppression of material facts enabling the insurer to repudiate its liability under the policy. He finally prayed for dismissal of the appeal.

10.                   After minutely going through the documents on record including the medical record of Fortis Hospital brought on record of the complaint file separately before the learned District Forum by way of an interim application and particularly Annexure R-6 (Colly) at page 72 of the appeal file as well as annexed with the written statement, it is clearly brought out that the RBG of the patient (Life Assured) was recorded as 240 Mg/dl and not 140 Mg/dl. It seems that somebody has tried to make it 140 or it is a simple over writing while noting down this reading. Moreover, the treating doctor who had examined the Life Assured has also mentioned in the case history under the heading ‘short note’ as under: -

 “Type 2 DM – 1 yr on OHAS and diet control,

history of weight gain – for last 4-5 years,

Labelled outside - Pickwicknian Syndrome.

Started her problems – 2 yrs with

Breathlessness more at night while sleeping

with ­ing frequency…”

It is apparent from this document only, on which the appellant has relied upon, that the Life Assured was a chronic patient of Diabetes Mallitus (Type II), which ailment she did not disclose at the time of filing up the proposal form. This clearly shows that there is a concealment of material information on the part of Life Assured, who had given wrong information as regards the status of her health while taking the insurance policy in question. Meaning thereby, that there is a breach of terms and conditions of the Insurance Agreement by the Life Assured, which is termed as a contract of utmost faith between the parties. In view of the foregoing discussion, we are of the considered opinion that there was a suppression of material information on the part of Life Assured while taking the insurance policy in question and we do not find any ambiguity in the impugned order dismissing the complaint, which is just, fair and legal. Consequently, the appeal filed by the complainant is dismissed as devoid of any merit. However, under the peculiar circumstances of the case, the parties are left to bear their costs of litigation.

11.                   Copies of this order be sent to the parties free of charge.

Pronounced.

8^th July, 2010.

[JUSTICE PRITAM PAL]

PRESIDENT

[MRS. NEENA SANDHU]

                                                                                                 MEMBER

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