DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 155 of 22.5.2008<br /> Decided on : 9.4.2009<br /> <br /> <br /> Deepak Kumar minor son of Sh. Rajeshwar Kumar Sharma S/o Sh. Ram Sharan through is natural guardian and mother Komal Sharma Widow of Sh. Rajeshwar Kumar Sharma S/o Sh. Ram Sharan C/o Shamsher Singh, House No. 6036, Near Jain Bhawan, Mata Rani Gali, Bathinda<br /> ...... Complainant<br /> <br /> Versus<br /> <br /> 1.Life Insurance Corporation, Divisional Office, Urban Estate, Phase 1, Dugri, Ludhiana-141 002 through its Senior Divisional Manager.<br /> 2.Life Insurance Corporation, Branch Office, Jeevan Jyoti Building, Bibi Wala Road, Bathinda through its Branch Manager.<br /> ....... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> <br /> Sh. Pritam Singh Dhanoa, President<br /> Dr. Phulinder Preet, Member<br /> Sh. Amarjeet Paul, Member <br /> <br /> For the complainant : Sh. Ashok Gupta, Advocate<br /> For the opposite parties : Sh. Sanjay Goyal, Advocate<br /> <br /> ORDER<br /> <br /> PRITAM SINGH DHANOA, PRESIDENT:-<br /> 1. Sh. Deepak Kumar minor has filed the instant complaint through his mother and natural guardian Mrs. Komal Sharma under section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as the Act) against Life Insurance Corporation of India through its Senior Divisional Manager, Ludhiana and Branch Manager, Bathinda for issuance of direction to them to waive off the payment of premium payable in future till maturity of insurance policy under reference and payment of costs and any additional or alternative relief which he is found to be entitled by this Forum.<br /> 2. Briefly stated, the case of the minor complainant is that his father Rajeshwar Kumar Sharma had secured life insurance policy for his benefit on 28.5.2005 in the sum of Rs. 1,00,000/-. At the time of issuance of insurance policy, father of the complainant was informed that in case of his death, payment of premium falling on the due dates shall be waived as policy has been issued under premium, waiver benefit scheme. The father of the complainant who has expired on 1.8.2006 was examined by the team of doctors on the panel of the opposite parties, but they have repudiated the claim lodged by her mother on his behalf after demise of his father without disclosing any reason vide their letter No. Claims-174 dated 19.4.2007 and have asked for payment of premium as per original schedule of payments forming part of policy. The complainant and his mother have been subjected to metal and physical agony due to repudiation of his claim on the ground that his father had been suffering from Auto immune Hepatitis with Cirrhosis of liver and against the terms and conditions of the policy. As such, there is deficiency in service on the part of the opposite parties for which they are liable to pay compensation as prayed for. Hence, the complaint.<br /> 3. On being put to notice, opposite parties filed written version resisting the complaint by taking preliminary objections; that complainant has not approached this Forum with clean hands as deceased has suppressed the material facts; that complaint is not maintainable because there is no deficiency in service on their part and complaint is liable to be dismissed with compensatory costs. On merits, factum of issuance of insurance policy in the name of the minor complainant at the instance of the complainant has been admitted, but it is averred that the same was secured by his father by concealing the facts regarding his health, ailment suffered by him and the factum of his admission in the hospitals and treatment in the proposal form filled in by him. Rest of the averments made in the complaint have been denied and a prayer has been made for dismissal of the complaint with costs.<br /> 4. On being called upon by this Forum to do so, learned counsel for the complainant filed affidavits Ex.C.1 and Ex.C.16 of his mother and affidavits of S/Sh. Bharat Bhushan, Jatinder Sharma, Name Paul and Uttam Kumar which are Ex.C.2 to Ex.C.5 respectively and also tendered in evidence photocopies of documents Ex.C.6 to Ex.C.15 before he closed his evidence. On the other hand, learned counsel for the opposite parties filed affidavit Ex.R.1 of Sh. J.P Arya, Manager (Legal) and also tendered in evidence photocopies of documents Ex.R.2 to Ex.R.43 before he closed their evidence.<br /> 5. We have heard the learned counsel for the parties and gone through the oral and documentary evidence adduced on file carefully with their kind assistance.<br /> 6. At the outset, learned counsel for the complainant Sh. Ashok Gupta Advocate has contended that policy in the name of the minor complainant has been secured by his deceased father as stands established by the evidence adduced on record by his mother, who had been employed on a class IV post in a Government Department and involved in doing physical work and his employer had promoted him because his work and conduct was found satisfactory. Learned counsel has argued that had the deceased father of the minor complainant been suffering from any ailment, then his employer might have denied him promotion. Learned counsel has further submitted that opposite parties have not led any evidence to establish that terms and conditions of the policy were read over to the deceased father of the complainant but he intentionally and deliberately suppressed the factum of any pre-existing disease and about his admission and treatment in hospitals with malafide intention for gaining wrongful gain and for causing wrongful loss to the insurer. Learned counsel has argued that opposite parties have neither examined any doctor who treated the father of the minor complainant nor any person who may be conversant with his handwriting and signatures and as such, no reliance can be placed on the documents tendered in evidence by the opposite parties to establish that deceased remained admitted in hospitals and had been suffering from any pre-existing disease before executing proposal form. Learned counsel has argued that opposite parties were not justified in repudiation of claim lodged by the mother of the minor complainant after death of his father on the ground of suppression of material facts touching his health and factum of his treatment in hospitals. In support of his contentions, learned counsel has placed reliance on 2009(1)CLT-221 Life Insurance Corporation of India and another Vs. Gurbaksh Singh alias Gurbakhish Singh wherein it has been held by Hon'ble Punjab State Commission that insurance companies cannot be permitted to be careless while issuing the insurance policies and to be over clever when repudiating the same and the order passed by the District Forum allowing the complaint was upheld inspite of objection by the insurance company that complainant was guilty of suppressing the material facts about his mental disease suffered by him in the proposal form. Learned counsel has further relied upon 2008(2)CPC-276 Life Insurance Corporation of India through its Senior Divisional Manager Vs. Kamlesh Rani wherein insurance company repudiated the claim lodged by widow of the deceased-insured that he had suppressed material facts about his ailment as he was suffering from hypertension for the last 5/6 years and also from heat disease. It was held by Hon'ble Punjab State Commission that from the affidavits of respondent and two independent witnesses, it has been established that insured was hale and hearty and was living a normal life. It was further held that death of the insured has taken place more than 1-1/2 years after taking the insurance policy for a small amount of Rs. 70,000/- and the order passed by the District Forum accepting the claim alongwith interest @ 9% P.A was upheld. Learned counsel has further relied upon 2008(1)CPC-684 National Insurance Company Ltd. Vs. Raj Narain wherein three days after obtaining the insurance policy insured felt pain in chest. The claim for amount spent on surgery was repudiated on the ground that insured had not disclosed t he fact of disease which he was already suffering, but the fact of having pre-existing disease was not proved by any evidence on record. Moreover, exclusionary clause was not explained to the insured because of which the order passed by the District Forum directing the opposite party to settle the claim within 60 days was upheld by Hon'ble National Commission. He also placed reliance on 2008(1)CPC-675 Life Insurance Corporation of India Vs. Smt. Sukhwinder Kaur wherein the reason for repudiation of claim was given that insured deceased was a chronic alcoholic for the last 20 years, but he concealed the said fact. It was held by Hon'ble Punjab State Commission that reason for repudiation is unjust and unrealistic as taking of liquor is not a disease. It was further held that when insured remained alive for 20 years inspite of taking liquor and from his habit alone, it cannot be treated to be a disease and suppression of material facts are not established. Lastly, learned counsel has relied upon 2006(2)CPC-95 Bhagwan Singh Vs. Manager, Life Insurance Corporation of India & Ors. wherein medical leave was obtained on account of some ailment like viral fever and vertigo which was not cause of death. The primary cause of his death was renal failure. It was held that it is admitted fact employees obtain medical certificates many a times falsely only to secure leave. Moreover, leave from his employer was of casual nature and had no nexus with the cause of death of the insured on account of which it was held that repudiation of the claim by the insurance company was not justified. Learned counsel has urged that as deceased father of the complainant has died during validity period of policy secured in his name and for his benefit, as such, direction be given to waive off the premium as per terms and conditions of insurance policy. Learned counsel has further argued that mother of the minor complainant has been subjected to mental and physical harassment due to rejection of claim by the opposite parties in an arbitrary manner, as such, they are liable to pay him compensation and costs incurred his mother for filing of complaint.<br /> 7. On the other hand, learned counsel for the opposite parties Sh. Sanjay Goyal Advocate has submitted that mother of the minor complainant has admitted in the claim form that his father died due to Pneumonia and it stands established by the documents placed on record that father of the minor complainant secured leave and remained admitted in several hospitals but with malafide intention, he suppressed these facts in the proposal form furnished at the time of issuance of insurance policy. Learned counsel has further argued that due to suppression of pre-existing disease by the father of the minor complainant and factum of admission in various hospitals, the opposite parties have rightly repudiated the claim lodged by the mother of the complainant for waiving off the future amount of premium as per terms and conditions of the policy. Learned counsel has argued with full vehemence that complainant cannot succeed on the strength of affidavits of witnesses tendered in evidence on his behalf by his mother through counsel because they are related to his deceased father by relationship or otherwise. Learned counsel has urged that complaint in the peculiar circumstances of the case is bound to fail and is liable to be dismissed with compensatory costs. In support of his contentions, reliance has been placed on III(1994)CPJ-159 Sneh Lata Agarwal Vs. Life Insurance Corporation of India wherein it has been held by Hon'ble National Commission that it has clearly come out from the evidence that the insured had suppressed the material fact that he had previously been a patient of pulmonary Tuberculosis and Cirrhosis of the Liver. It was also held that if these material facts had been disclosed to the insurer at the time of submission proposal by the insured, then it was most unlikely that the insured would have accepted the proposal and undertaken to insure the life of the deceased, as such, insurance company cannot be held liable for claim put forward by the appellant after the death of insured. Learned counsel has also relied upon III(2003)CPJ-15 Panni Devi Vs. L.I.C & Ors. Wherein information of prior surgery was concealed by the insured. It was held that contention that the Medical Officer of L.I.C during the examination of insured did not find anything adverse, is not acceptable and if a person withholding information, then doctor would not know it unless it is visible. It was proved that 15 years ago, surgery of insured was recorded at the pre-anaesthetic check up. As such, repudiation of the claim was held justified. Learned counsel has also placed reliance upon order dated 2.3.2007 passed by Hon'ble State Consumer Commission, Union Territory, Chandigarh in Appeal No. 839/2006 titled as Mala Aggarwal Vs. Life Insurance Corporation of India Ltd. wherein statement made by the insured was found to be false and incorrect about material facts to the effect that he enjoyed good health and did not suffer from any disease. It was held that policy holder knew that at the time of making statement that his statement was palpably wrong, as such, claim has been rightly repudiated by the insurance company and appeal was dismissed. <br /> 8. The argument advanced by the learned counsel for the complainant has failed to sound well with us because as per terms and privileges Ex.C.8 forming part of insurance policy Ex.C.7 secured by deceased father of minor complainant in his name in case of premium has not been duly paid or any condition is contravened or it is found that any untrue or incorrect statement is contained in the proposal form, personal statement, declaration and connected documents or any material information is withheld then and in every such case subject to the provisions of Section 45 of the Insurance Act, 1938, wherever applicable, policy shall be void and all claims to any benefit in virtue thereof shall cease and st and determined and money which has been paid in consequence hereof shall belong to the Corporation excepting always in so far as relief is provided in terms of Privileges herein contained or may be fully granted by the Corporation.<br /> 9. The policy Ex.C.7 in the name of the minor complainant has been secured by his father on 28.5.2005, but he filled in proposal form on 31.5.2005. Admittedly, insured died on 1.8.2006 in Malwa Superspeciality Hospital, Bathinda. The claim lodged by the mother of the minor complainant for waiver amount of future premiums has been repudiated by the opposite parties vide their letter dated 19.4.2007 Ex.C.6 with the direction to make the payment of future premium under the policy. As per version of the opposite parties, father of the complainant had not been maintaining good health since 1996 as he fell victim of Stomach Distress, Hypertension and other ailments. As per copy of statement of mother of minor complainant Mrs. Komal Sharma, his father died on account of Auto Immune Hepatitis with Cirrhosis of Liver in Malwa Superspeciality Hospital, Bathinda at 5 A.M on 1.8.2006. The opposite parties have also tendered in evidence the Inquiry Report Ex.R.2 submitted by Mr. Vikas Aggarwal after holding inquiry wherein he has submitted that clause of death of father of the complainant was Hepatitis and Cirrhosis of Liver and before death, he complained fever, weakness and breathlessness. The opposite parties have also tendered copy of prescription slip Ex.R.3 issued by Delhi Nursing Home, Bathinda and documents Ex.R5 to Ex.R.14 issued by PGI, Chandigarh in the year 1996 much prior to issuance of policy to the effect that deceased father of the complainant had been suffering from Cirrhosis of Liver and Portal Hypertension. The report Ex.R.15 has been issued by Dr.(Mrs.) Taruna Khanna of Chandigarh Clinical Laboratories on 28.8.1996. <br /> 10. The opposite parties have also tendered in evidence copy of certificate Ex.R.33 issued by the employer to the effect that deceased father of the complainant secured leave from 12.6.2006 to 31.7.2006 vide his application Ex.R.35 and the same was sanctioned vide sanction letter Ex.R.34 by the competent authority. They have also produced a letter written by the complainant of minor complainant to Branch Manager of the opposite parties that her husband died because of Pneumonia suffered by him. As per certificate Ex.R.39 issued by Malwa Superspeciality Hospital, Bathinda, father of the complainant had expired due to Auto Immune Hepatitis with Cirrhosis of Liver. The factum of admission and death in the said hospital is not denied by the complainant. As such, it is established that father of the complainant was suffering from various ailments for a period of about one decade before his death. In our opinion, all these documents issued by Institutions like PGI and employer of the complainant cannot be said to have been fabricated by the opposite parties with malafide intention to deprive of the minor complainant of any right accrued under the policy. <br /> 11. In the proposal form, father of the complainant had given answers to the questions put to him in the negative about his admission in any hospital and Nursing Home, treatment of any ailment during the past five years and his absence from duty on the ground of health and any type of disease suffered by him. As per the facts borne on record, it has emerged that due to concealment of pre-existing disease by the father of the complainant, opposite parties have rightly repudiated the claim lodged by his mother for waiver of payment of remaining amount of premium. We have carefully gone through the authorities relied upon by learned counsel for the complainant, but their facts and circumstances were distinguishable from those of the case in hand. In 2009(1)CLT-221 (Supra), deceased-insured had no control over mental difficulty at the time of filling of the proposal form on account of which it was held that form appears to have been filled by agent of the insurer himself. In 2008(2)CPC-276(Supra), the claim was allowed merely on the ground that amount of policy was quite meagre, as such, the insured cannot be said to have any intention to cheat the insurer, then he might have obtained the policy for much higher amount. In 2008(1)CPC-684(Supra), no symptoms of disease were proved because of which it was held that there was no question of linking them with the disease. In 2008(1)CPC-675 (Supra), disease was said to be chronic alcoholic for 20 years which he concealed and taking of liquor was considered to be no disease, but in the case in hand, there is enough evidence on record to hold that deceased had been suffering from serious ailments and died as a result of them, but he concealed them in proposal form. <br /> 12. In the light of our aforesaid discussion, we have come to the conclusion that opposite parties have rightly refused to waive off the remaining amount payable on account of future premium as per the terms and conditions of the policy secured for his benefit by his deceased father and there is no deficiency in service on their part which may invite indulgence of this Forum through the instant complaint by his mother. Resultantly, we dismiss the complaint. However, complainant may deposit the instalments of premium due till date alongwith penal interest, if any, within a period of two months from the date of receipt of copy of this order failing which opposite parties shall be at liberty to take any action adverse to the interest of complainant as per terms and conditions of policy. In the peculiar facts and circumstances, parties are left to bear their own costs.<br /> 13. The copies of this order be sent to the parties free of cost as per rules on the subject cited above.<br /> 14. File be indexed and consigned.<br /> <br /> <br /> Pronounced (Pritam Singh Dhanoa)<br /> 9.4.2009 President<br /> <br /> (Dr. Phulinder Preet)<br /> Member<br /> <br /> (Amarjeet Paul)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />