Orissa

Jajapur

CC/67/2013

John Behera - Complainant(s)

Versus

Manager Claims Management Group Aviva Life Insurance Co.(I)Ltd. - Opp.Party(s)

Srikanta Mohapatra,Seetikanta Das

14 Mar 2016

ORDER

                                    IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                                      Present:  1.Shri Biraja Prasad Kar, President,

                                                                                      2.Sri Pitabas Mohanty, Member,

                                                                                      3.Miss Smita Ray, Lady Member.                                                                   

         Dated the 14th day of March, 2016.

                                        C.C.Case No.67 of 2013

John Behera, S/O. Late Raibaria Behera,

Vill-Baligari, PO-Haridaspur,

P.S-Dharmasala, Dist.-Jajpur.                                                                           …… ……....Complainant .                                                        .                                  

                              (Versus)

1. Manager, Claims Management Group Aviva Life Insurance Co. (I) Ltd.

    Aviva Tower, Sector Road, Opp. Golf Course, D.L.F.- Phase-V, Sector-43,

    Gurugaon-122003, Hariyana.

2. Branch Manager,  Aviva Life Insurance Co. India Ltd.      

    2^nd Floor , Unit-4, Sachibalaya Marg, Bhubaneswar, Khurda.

3. Branch Manager, Indus Ind Bank,

    At/PO-Sunguda, Chandikhole, Dist.-Jajpur.                                                    ……………..Opp.Parties.                                                                                                                                                                                                                                                                                                                                  

For the Complainant:                    Sri Srikant Mohapatra, Adv., Sri Manas Ranjan Biswal, Adv.

                                                      Sri Seetikanta Das, Adv., Sri P.K. Das, Advocate.

For the Opp.Parties No.1 and 2   Sri Sarat Chandra Behuria, Adv.

For the Opp.Parties No.3             Sri Dillip Kumar Das, Adv.                                                                                             

                                                                                                      Date of order:   14. 03. 2016.

SHRI  PITABAS  MOHANTY, MEMBER .

                        The complainant has come with this complain petition alleging deficiency in service due to repudiation of the Insurance Claim of the complainant.

                        The facts relevant for this present dispute shortly are that the complainant’s wife being the policy holder of the O.Ps. died on 10^th July’2012 and after her death the complainant claimed  the insurance amount as nominee against the policy No. NLS-3050252 wherein Pankajini Behera, the wife of the complainant, was the insured  person.

                        The O.Ps. no.1 & 2 repudiated the claim of the complainant on dt.10.12.12 basing on the ground of  suppression of the disease by the insured at the time of taking policy. It is alleged by the complainant that as against such insurance claim from the side of the complainant ,the O.Ps. no. 1 & 2  without verifying the documents as well as the treating doctor simply  rejected the Insurance Claim of the complainant on the ground of  suppression of disease prior to taking policy  which  is malafide  arbitrary and not sustainable in the eye  of  law.  Accordingly  the complainant has filed the present dispute with the prayer to direct the O.Ps. no. 1 & 2 to pay the Insurance claim amount of Rs.15,75,000/- along with 6% interest from the date of claim.

                        The O.Ps. no. 1 & 2 after appearance have filed the written version denying the allegation of the complainant. The main plea which has been taken by the O.Ps. no. 1 & 2  in the present case is that  the complainant’s wife Mrs. Pankajini Behera  (deceased life assured), submitted the duly signed proposal form for Aviva Life Saver Advantage Policy dt. 2.11.2010  bearing policy No.NUP 13992143  in the prescribed form for an assured sum of Rs.15,75,000/- having premium of  Rs.1,00,000/- was to be paid annually.

                        That in the proposal form late Mrs. Pankajini Behera had given declaration that she had made complete true and accurate disclosure of all the facts and circumstances as may be relevant for the acceptability of the risk and had not suppressed any information as may be relevant for the acceptability of proposal. The following questions were answered as “NO” on page - 5 Section of Health and Activity Section of the proposal form.

6.2A.                Are you currently receiving any medical treatment or are you awaiting medical or surgical consultation, test of investigation? …………………..No.

B.                     Have you ever had any medical or surgical treatment including investigations, tests, scans or X-rays for any of the following illnesses or medical conditions.

.

.

IV.                    Diabetes, kidney or liver problem    ………………….No.

XIV.                 Any other illness surgery or injury ?      ……………..No.

                        On 22. 08. 2012 the O.Ps. no. 1 & 2  received a Death Claim information from the complainant i.e. Husband of Late Pankajini Behera (DLA) who is the nominee in said policy, wherein it was stated that the DLA had passed away on 10.07.2012.

                        That as the claim is an early claim and after perusal of the documents submitted by the complainant, the O.Ps.  no. 1 & 2  conducted  an investigation through an investigator .The O.Ps. no. 1 & 2   received the investigation report and after perusal of investigation report and the documents procured during the investigation , the O.Ps. no. 1 & 2   came to know through New Patient Registration Form dt.09.11.2010 produced from kalinga Hospital ,Bhubaneswar that DLA was suffering from Carcinoma Kidney Diseases since November-2010 (i.e. prior to signing of the proposal forms) and she was getting treatment in the Kalinga Hospital  as OPD patient and DLA was hospitalized / treated for the above said diseases on 09.11.2010  but the questions which were asked relating  to Health conditions of DLA on proposal forms was replied as “NO”. Accordingly said policy was issued to the DLA on 15.11.2010 . Hence  it  is  crystal clear that DLA was under treatment much prior to signing of the proposal form prior to issuance of the said policy and the said facts malafidely concealed by DLA at the time of issuance of the said policy. Hence on the basis of documents produced during the investigation and on the investigation report it was convinced that there was no disclosure of earlier disease by DLA at the time of doing the policy. Accordingly the O.Ps. no. 1 & 2   repudiated the claim on 11.12.2012 on the grounds of suppression of material facts by the DLA while filing of the proposal form basing on which the said policy was issued. The suppression of pre-existing deceases amounted to suppression of material facts and hence the Contract of Insurance (policy) is liable to be rescinded as per section 45 of the Insurance Act, 1938 .Therefore, the O.Ps. no. 1 & 2   respectfully prayed that the complaint made by the complainant  being devoid of any merit be dismissed in the interest of equity and justice.

                        The O.P. no. 3 appeared and filed his W.V. denying the allegations made in the complainant petition. The O.P. no. 3 denied his liberty for paying any claim to the complainant. They have only received the Cheque and paid it to the Insurance Company. Hence there is no deficiency in service on the part of the O.P. no. 3.   

                        On the date of hearing we have heard the arguments from the respective advocates. Perused the pleadings and documents available on record.

                        From the pleadings it is an established fact that the wife of the complainant late Pankajini Behera had obtained one Aviva Life Saver Advantage policy from the O.Ps. no. 1 & 2 bearing policy No.NUP 13992143 dt.15.11.10 for an assured sum of Rs.15,75,000/- for which a premium of Rs.1,00,000/- was to be paid annually. The present complainant was  the nominee of the said policy. During the subsistence of the policy the policy holder Pankajini Behera died on 10.07.2012. The O.Ps. no. 1 & 2   have repudiated the claim of the complainant on the ground of suppression of material facts by deceased life assured ( DLA) regarding pre-existing disease and treatment and not disclosing it in the proposal  Form.The O.Ps. no. 1 & 2  in support of their case have filed the zerox copy of New Patient Registration Form (OPD) of Kalinga Hospital, Bhubaneswar, bearing Regd. Hospital No.183142 dt.09.11.2010  wherein it is written HTD ,CKD and the patient was treated by one Dr.Nisith Kumar Mohanty, MD. D.M (AIMS), consultant Nephrology.The O.Ps. no. 1 & 2  have also filed the claim Investigation report of one Third Eye Investigating Agency with affidavit of the investigator Biswajit Panda, partner  of Third Eye  Investigating Agency, BBSR. The report of the investigator, Third Eye Investigating Agency, in his report in the Remark colum has categorically mentioned in the Remarks colum that:-

                        “At the time of our visit to the residential address of LA we had meet with the LA’s husband and other relatives. As per husband of LA, LA’s health was very good and she had not suffered by any diseases prior to 24.11.2011  and  after  the  advised of the local doctors they had visited to Cuttack and after that it has been confirmed that LA had kidney diseases. Following to that she was under Dialysis till her death and died at their house on 10.07.2012 “.         

                        The investigator’s report also reveals that the DLA was also treated at SADGURU Hospital, Jagatpur, Cuttack, SHANTI HOSPITAL, Cuttack, besides Kalinga Hospital. But the O.Ps. no. 1 & 2  nor investigator have filed a single scrap of paper regarding pre existing disease, the treatment of the DLA, prior to submission of Proposal Forms  except the OPD ticket of Kalinga Hospital ,Bhubaneswar. In the OPD ticket of Kalinga Hospital, it is only written HTD, CKD. It is not known who has written it. The O.Ps. no. 1 & 2   have failed to place any document on record regarding treatment of  the DLA prior to 02.11.10 .History of the deceased noted by Doctor in which it was mentioned that the deceased was having HTD,CKD. No doubt, this fact has been mentioned as patient’s history but the O.Ps. no. 1 & 2   have failed to place any documents on record regarding prior treatment. No affidavit of the concerned doctor who recorded history of the DLA was filed. Only on the basis of recorded history it cannot be held that deceased was suffering from Carcinoma Kidney Diseases prior to filing of Proposal Form by DLA .We have gone through a number of decisions reported in 2010(2) CPR-340 (State Commision) (L.I.C Vrs. Smt. Vakeela) ,2010(2)CPR-312, (State Commision) (L.I.C Vrs.Smt.Hukum Devi), CPR-2010(2)-345-S.C(L.I.C Vrs.Smt.Mithlesh),2010(2)-CPR-350-State Commision (The Oriental Insurance Company Vrs. Mr.Vidya Sagar Vora & others), 2010(2)-CPR-355-State Commission (L.I.C  Vrs. Sangeeta Korwa) ,2010(2)-CPR-361 (L.I.C Vrs. Dharmesh Kumar), 2010(2)CPR-366-State Commission(L.I.C Vrs.Smt.Anju Raheja) .The learned State Commission after referring the decisions of the Hon’ble Appex Court have categorically /  concurrently held that:

“ unless and until a person is hospitalized for treatment of any disease ‘or’ undergone any operation in the near proximity of taking the policy , say a year ‘or’ two before, he can not be accused of concealing the factum of any disease ,which can be termed as pre-existing disease ‘.    

                   In  the instant case there is no significant document produced by the O.P.no.1 and 2 that the assured / DLA has ever been admitted to the hospital for any ailment before obtaining the policy. Mere reference in OPD ticket will not prove that the DLA was suffering from pre-existing disease . 

                        On the other hand the complainant to prove his case has filed one certificate of the treating physician namely Dr.Nisith Kumar Mohanty, who has categorically stated that:

 “This is to certify that I have seen Mrs. Pankajini Behera W/O. Mr. John Behera at Baligari P.O. Haridaspur Dist. Jajpur was under my treatment as outdoor                        vide OPD Regd. No.183142 dt.09.11.2010 . As per record available she was having hypertension but chronic kidney disease was not confirmed. Records show provisional diagnosis not a confirmed diagnosis”  .

                         The complainant also filed  affidavits of Asutosh Nayak , Sitanath Sahoo, Bharat Nayak, Madhusudan  Jena ,Dhananjaya Swain ,Bikram Biswal, Smt.Chandrabati Barik , Tarunabala Sathpathy and Smt. Santilata Rout  of the neighboring village of the DLA and own villager  of DLA who have categorically stated that  deceased Mrs Pankajini Behera W/O. the complainant was the Sarpanch of Haridaspur G.P from 2007 to 2012 and she was hale and hearty  during  her tenure as Sarpanch of Haridaspur G.P. From the aforesaid facts and circumstances of the case, we are of the opinion that only on the basis of recorded history of DLA in OPD of Kalinga Hospital it cannot be held that DLA was suffering of Carcinoma kidney Disease since November-2010 .

                         More over the O.Ps. no. 1 & 2  have repudiated the Insurance Claim of the complainant on the ground of suppression of material facts “ pre existing disease and  treatment “ prior to 02.11.10 . In such situation we are of considered view that the onus heavily lies with the O.Ps. no. 1 & 2   to  prove  by reliable and cogent evidence that prior to submission of proposal form the DLA was suffering with pre-existing ailment  as per observation of appellate Forum stated below :                          

1.                     2008(3)CPR-53_Rajsthan (Mumini Vrs.L.I.C of India & Others.

2.                     2005(2)CPR-528-Odisha (D.M,L.I.C Vrs.Surendranath Samal)

3.                     2005-CTJ-1008-N.C(Surinder Kaurd & Others Vrs.L.I.C India)

4.                     AIR-1991-SC-392( LIC of India Vrs.Smt. G.M.Chennabasemna)

                        In the present case the O.Ps. no. 1 & 2   have not filed any documentary evidence to prove that prior to accepting the proposal form, the O.Ps. no. 1 & 2 have examined the health of the complainant .Accordingly we are inclined to follow the observation of Hon’ble A.P, State Commission reported in 2014 (4) CLT-115-Hydrabad (B.M.L.I.C & Others vrs. Pasupulet Bhagya laxmi & Others) wherein it is held that :

            “ Insurance claim (life Repudiation on the ground that insured suppressed the material information with regard to health – Held - when the policy was issued by the           Insurance company with utmost good faith, the same yardstick has to be applied while settling the claims also - The LIC ought to have made thorough enquiry, investigation or necessary medical health check – ups before issuance of policy irrespective of the amount involved- without doing so, when they have issued the policy, now they cannot turn round and contend that they need not pay any amount as there was suppression of material information with regard to his health - All these discreet enquiries, investigations and health check-ups etc. ought to have been made before issuance of the policy itself - Having issued the policy they cannot repudiate the claim on the ground or the other - The Insurance company  failed  to  establish  that  the  life  assured  had taken  treatment  prior  to obtaining the policy as stated supra, nor could prove the nexus between the alleged treatment and the cause of death-Appeal dismissed.”

                        “We have been observing that a number of cases, the Insurance companies are issuing policies basing on the statements made by the proposer in utmost good faith but when it comes to settlement of claims, they start examining the matter under the microscope”.

                        In view of the above narrated analysis as well as owing to the above observations of Appellant Forums and in absence of any documentary proof, cogent and valid evidence  regarding pre-existing ailment prior to submitting proposal form , it is crystal clear  that the O.Ps. no. 1 & 2  have issued the Insurance policy to the  insured without medical examination at the time of accepting the proposal form and subsequently  have repudiated the Insurance claim of the complainant  on the pretext of pre-existing ailment  which is  only malafide ,arbitrary on the part of the O.Ps. no. 1 & 2   but also such plea /stand is not sustainable in the eye of law. Accordingly the interest of justice will be best served in case this dispute will be allowed in favour of the complainant. We hold that there is no deficiency on the part of the O.P. no. 3.  Hence this order.

O R D E R

                          In the result the dispute is allowed against the O.Ps.no. 1 & 2  and dismissed against O.P. no. 3.  The O.P No.1 and 2 are directed to pay the Insurance claim of the complainant, minus the amount if paid on Ex – gratia  within one month after receipt of this order , failing which the O.Ps no.1 & 2. are liable to pay 6% interest  on the above insured value from the date of filing the claim till its realization .  No costs.          

   This order is pronounced in the open Forum on this the 14th day of March, 2016. under my hand and seal of the Forum.