MR. PRABODHA KUMAR DASH, PRESIDENT:-
The C.C Case No. 18/2019 is pending since dt. 15.03.2019 which is more than 3 and half years and the same posted various dates for 55 times. It is high time to dispose the same on priority basis to follow the mandate of C.P.Act,2019.
Brief Fact:-
Complainant’s husband insured under the insurer (Kotak Mahindra old Mutual Life Insurance Ltd.) issued a policy in favour of the Complainant’s husband’s name on dt. 29.08.2015 bearing Policy No. 03292722 for a term of 20 years, annual premium Rs. 18,924/- paid for 2 times, unfortunately the insured died on dt. 07.07.2016 on account of jaundice. After death the Complainant as his nominee/legal heir filed death claim of the insured before the Ops & the same was repudiated by the insurer on account of suppression of material facts by the insured.
Being aggrieved by such deficiency in service of the Ops the Complainant filed present C.C.Case before this Commission with a prayer for relief sum assured of Rs. 6,00,000/-, Rs. 80,000/- for mental agony undergone for denial of claim by the Ops and so also for other expenses.
Heard Ld. Counsels for both the parties & gone through the complaint petition as well as written version filed by the Ops & perused the materials/documents available on record.
- The Complainant the wife of deceased/insured has locus standi to file this C.C.Case U/S-2(5)(vi) of C.P.Act,2019.
- The insured being a consumer availed insurance service which is well within the letter & spirit of Sec-2(42) of C.P.Act,2019 where it is provided the insurer is a service provider and the insured was used the service as a potential user.
- Repudiation of claim amount by the Ops is a deficiency in service as provided U/S-2(11) of C.P.Act, 2019. The Ops are at fault because they accepted the premium as per contract of Insurance and it was the duties of the agent to clarify himself about the status of the insured, but the same was not done by the agent carefully and the fault committed by the agent during the contract of Insurance binding the insurer the liability vicariously during subsistence of a valid agency. The insurer accepted premium and all the quarries put forth by the agent are well answered by the insured and further the insured not suppressed any material facts. The insurer has not followed the principle where they could have examined the health condition of the insured. The insured had no opportunity/knowledge prior to sign the Insurance contract. The Op No.2 being a agent employed under OpNo.1 having a fiduciary position forced the insured to obtain a policy and thereby get Commission from the said policy intentionally not puted relevant questions to the insured where there are several important columns to be filled up and the same filled up by the agent during the subsistence of the agency for which the principal OpNo.1 liable under the Policy in question. Further, the insured not suppressed any material facts relating to the deceased. He has never suffered jaundice prior to the Insurance policy. The OpNo.1 not filed any documents relating to the health history of the insured prior to acceptance of policy. Jaundice is the kind of decease which causes for a temporary period but not for a prolonged period as like cancer, heart problem and diabetic etc. Which are well within the knowledge of deceased person. Jaundice could have been affected the deceased after the proposal policy. Further theOpNo.1 failed to produce any other disease except jaundice after acceptance of Insurance Policy. In our considered view we can’t accept the contention of Op No.1 that the Complainant had suppressed about his disease.
- When we gone through the proposal from in coloumn-10 height & weight of the deceased insured 5’6’’ and weight 65Kg. respectively and current uses of tobacco, alcohol are not consumed by the insured. In coloumn-11 of the proposal form it was mentioned (a) to (h) all the discusses which are prescribed. Hence jaundice not found in Coloumn-11 of the proposal form. Therefore, jaundice is short leaved diseases and it could have been affected subsequently to the acceptance of proposal form and an ordinary prudent man could not have detected the same disease and the same is beyond his knowledge.
- In reply to the Complainant’s claim the legal cell of OpNo.1 mentioned in his reply that they found from FS & CW Deptt., the insured belonged to the BPL category and is eligible for sum assured of Rs. 24 lakhs and this issue may not be a ground for repudiation of claim.
- It is found from the documentary evidence filed by OpNo.1, treatment history of the deceased insured that he discharge letter of Rogi Kalyan Samiti of DHH, Kendrapara outdoor treatment on dt. 06.07.2016 and treatment under doctor Dr. T.Panda till dt. 28.06.2016. Treatment under Dr. D.P. Sutar on dt. 07.07.2016 and OPD prescription dt. 21.05.2016 and lavatory test Kishore Diagnostic on dt. 28.06.2016. Finally the insured died on dt. 07.07.2016. It is found the insured suffered diseases in the month of June, 2016 undergone treatment on various dates and died on dt. 07.07.2016. Therefore he suffered from the disease for nearly one and half month which could not be considered as pre-existing disease, because the policy entered into one year back on dt. 24/08/2015. So, the same diseases arose for a short period after nearly one year of the policy. The Ops in their written version stated that, the disease for which the insured died suppressed the fact is quite unacceptable to this Commission. Further, the OpNo1 did not adduce any evidence that the disease was pre-existed. In a reported case LIC of India vs. Smt. Priya Sharma, 2012 NCJ, 879, wherein it was held that onus to prove that the repudiation of claim is liable to be rejected. insured suffering from pre-existing disease is on the Insurance Company without proving and adducing evidence, repudiation of claim is liable to be rejected. In a reported case in KOTA DAL Mill vs United India Insurance Ltd. 2016CPR, 289 NC, Ins. Co. can’t repudiated a claim by going against mass of evidence. Therefore, the documents annexed by OpNo.1 revealed that the disease continued for one and half month is not a prolong disease and not also pre-existing and further the Ops failed to adduce any evidence that the deceased suffered with the same disease before the proposal accepted. So the issue of suppression of material facts is not tenable in the eye of law and not acceptable to this Commission.
- The insurer once accepted the premium under an insurance means it presumed the insurer made appropriate inquiry about the insured. Why the insurer accepted the premium without investigation/inquiry about the insured that he had already insured under different Insurance Company. It should have been done by the insurer prior to entering into the proposal with the insured. That apart that there is no bar under the law to debar a person to insurer under different insurer. Therefore the contentions of the OpNo.1 is not acceptable to this Commission. In our considered view the said contention of Ops are devoid of merit and not acceptable to this Commission.
ORDER
It is directed that the OpNo.1 shall pay Rs. 6,00,000/- to the Complainant from the date of claim with @9% P.A. within a period of one month from the date of receipt of this order, failing which the complainant is at liberty to file execution proceeding before this Commission.
Issue extract of the order to the parties for compliance.
Pronounced in the open Court, on this the 6th day of December,2022.
I, agree.
Sd/- Sd/-
MEMBER PRESIDENT
