(Delivered On 18/8/2016)

Per Hon’ble Mr. B.A. Shaikh, Presiding Member

1. This is the complaint filed under Section 17 of Consumer Protection Act, 1986. The case of the complainant as set out by her in the complaint in brief is as under.
2. The deceased Devendra Wamanrao Shastrakar  was the husband of the complainant  and he is hereinafter referred  to as Deceased Life Assured ( for short DLA) for the sake of convenience. He had paid premium of Rs. 13370.84 to the opposite party ( for short OP) and obtained from it insurance policy covering risk of his life for sum assured of Rs. 25,00,000/-. The period of policy was from 1/12/2012 to 1/12/2032. The said policy was issued after  due medical examination of the complainant and after conducting due Pathological Test of his blood  and Urine. The DLA suffered swelling on his leg on 15/03/2013 and thereafter he was taken to hospital of Dr. Kolte for treatment. Doctor diagnosed deceased namely Jaundice. The DLA was admitted in that hospital on 15/03/2013 and he was after treatment discharge on 21/03/2013 as he got relief. He died on 29/4/2013. The complainant give intimation of the same to the OP and submitted  claim proposal along with necessary documents to the OP claiming sum assured under the policy. The OP repudiated  her claim vide letter dated 30/09/2013 on the ground that the DLA was admitted in Gurukrupa Nursing Home on 5/11/2012 as he was suffering  from Heart Disease. However he was not suffering from any such  Heart Disease on 5/11/2012. Therefore the repudiation of the claim is illegal. The complainant therefore filed the complaint before this Commission seeking direction to the OP to pay to her sum assured of Rs. 25,00,000/- with interest at the rate of 12 percent per annum from 29/6/20136 till its realization by her and also to pay her compensation of Rs. 2,00,000/- for physical and mental harassment and cost of Rs. 25,000/-.
3. The OP resisted the complaint by filing its written version. It admitted that it issued policy to the DLA to cover risk of his life and the period of that policy was from 1/12/2012 to 1/12/2032 and that DLA died on 29/4/2013. It further admitted that it received claim papers from the complainant claiming sum assured of Rs. 25,00,000/-. It is the case of the OP in brief that on receiving claim papers from complainant, It conducted  an investigation through  Transoft Solutions, who submitted first report on 8/8/2013 and second report on 21/8/2013. Thereafter it reinvestigated the matter through Charter House and it was revealed that DLA was suffering from Congestive Cardiac Failure with Coronary Artery Disease and that his CPK and MB levels were raised to 41 prior to signing the proposal by him for policy. He was indoor patient of Gurukrupa Nursing Home on 5/11/2012 for the aforesaid disease and he was discharged on 9/11/2012. He was having low blood pressure and he was having history of Pedal Swelling and diagnosed to have CCF and DCMP ( Dilated Cardio Myopathy). As per medical certificate obtained from Dr. Akhfaq Shaikh, the DLA was known to him since last ten years and he was suffering from Hypertension (HT) since last one and half years. The DLA suppressed said Pre Existing Disease before submitting proposal from for obtaining policy. Therefore the OP has rightly repudiated the claim of the complainant. The OP therefore requested that complaint may be dismissed with cost.
4. The complainant filed rejoinder to the complaint and then also filed affidavit by way of evidence. The complainant also filed affidavit of Dr. Akhfaq Shaikh in support of her case and denied the defense raised by the OP. The complainant also filed copies of following documents in support of the complaint. i.e. insurance policy, proposal for insurance, pathology report, receipt about payment of premium, policy circular, report of Doctor, death certificate, claim proposal and letter of repudiation. On the other hand the OP filed evidence affidavit of its senior Manager namely Mr. Anil Sharma who reiterated the aforesaid case of OP in his affidavit. The OP also filed following documents in support of his defense. The policy documents, terms and condition of the policy, claim documents along with death certificate, copy of letter dated 2/7/2013 and investigation reports.
5. The learned advocates of both the parties also filed their written notes of arguments. We have also heard learned advocates of both the parties at the time of final hearing.
6. The only question involved in the case is whether the deceased was suffering from Pre Existing Disease as alleged  by the OP in the reply filed by it. The learned advocate of the complainant submitted that the OP has not proved that the DLA was suffering from any such Pre Existing Disease. According to him medical case papers relied on by OP do not prove that DLA was admitted in the hospital namely Gurukrupa Nursing Home on 5/11/2012 and he was suffering from any such Pre Existing Disease. He submitted that Smt. Lata Zode who is shown in the medical case papers as the person who had brought the DLA to the hospital for treatment is unknown lady and she had no relation or connection  with the DLA or complainant and said medical record is of no use to prove any such Pre Existing Disease as on 5/11/2012. He also relied on the observations made in the following case.

1. New India Assurance Co. Ltd. Vs. Tribhuvan Parkash Gupta, III (2003) CPJ 113 Punjab SCDRC, Chandigarh. It is held that  when affidavit in support of expert opinion is not placed on record about Pre Existing Disease, no reliance can be placed on his report.
2. Bajaj Allianz Life Insurance Co. Ltd. and Anr. Vs. K. Jayalakshmi,  III (2015) CPJ 478 (NC), It is observed by Hon’ble National Commission that petitioner has not filed any affidavit of investigator along with statement of neighbor recorded by him that insured’s body turned into bluish and committed suicide and hence repudiation of claim is not justified.
3. New India Assurance Company Ltd. Vs. B.Y. Srikanta, IV (2015) CPJ 380 (NC). It is held that when insurance company has not produced any evidence to show that Parkinson disease is a Pre Existing Disease and same was not disclosed in the proposal form of the complainant, the  repudiation of the claim is not justified.
4. Birla Sun Life Insurance Co. Ltd. Vs. Kiran Prafull Bahadure       I (2015)CPJ 473 (NC), In that case the insurance company could not substantiate the repudiation of claim and hence it was found that repudiation is not justified.
5. New India Assurance Company Ltd. Vs. Rakesh Kumar, III (2014) CPJ 340 (NC).In that case, the OP did not produce any evidence to prove that which medication and for how long the complainant was taking  treatment for diabetes/hypertension and therefore concealment was not established and repudiation is not justified.
6. Birla Sun Life Insurance Co. Ltd. Vs. Charakapu Chinna Rao, I (2011) CPJ 557 (NC).  It is observed that it was necessary for the insurance company to produce supporting evidence before the Forum and that four documents produced do not constitute any documentary evidence in support of grounds used for repudiation of the claim.

7. On the other hand, the learned advocate of the OP has drawn our attention to the copies of indoor patient record of the DLA as maintained by Gurukrupa Nursing Home and submitted that the said medical papers prove that deceased was suffering from aforesaid serious pre existing disease as on 5/11/2012 and he suppressed the said disease while submitting proposal form for policy. Thus, according to him repudiation of the claim is justified.
8. The perusal of copies of the indoor patient, record of Gurukrupa Nursing Home shows that one Smt. Lata Zode had brought Mr. Devendra Wamanrao Shastrakar to  Gurukrupa Nursing Home on 5/11/2012 for his treatment and some medicines were prescribed for his treatment. However it is not shown by the OP as what was the relation   in between Smt. Lata Zode and DLA and as to how Smt. Lata Zode had brought DLA to the aforesaid hospital for treatment on 5/11/2012. In our view in the absence of any connected link in between DLA and Smt. Lata Zode,  it is very difficult to hold that the DLA was actually brought to the aforesaid hospital for treatment of his alleged disease on 5/11/2012. Moreover, it is also pertinent to note that no statement of Smt. Lata Zade was not record during investigation by OP.
9. Moreover no affidavit of Dr. Kolte who signed the indoor patient record dated 5/11/2012 is filed on record to prove that actually Smt. Lata Zade had brought DLA to that hospital for treatment on 5/11/2012. Therefore the investigation report and aforesaid indoor patient record dated 5/11/2012 of Gurukrupa Nursing Home does not prove that actually DLA had suffered from any such Pre Existing Disease and he was brought to that hospital by  Smt. Lata Zade for treatment on 5/11/2012.
10. The OP has also relied upon certificate of Dr. Akhfaq  Shaikh issued on 29/7/2013 to show that DLA was being treated by Dr. Akhfaq Shaikh for Hypertension (HT) since before one and half year. The complainant produced affidavit of Dr. Akhfaq Shaikh, who in his affidavit deposed that DLA did  not suffer from any Hypertension and he did not treat him. No counter affidavit is filed on record by the OP. Therefore the certificate dated 29/7/2013 relied on behalf of OP cannot be believed.
11. We thus find from evidence brought on record that OP has not proved that DLA had suffered from any such Pre Existing Disease while submitting proposal form for obtaining the aforesaid policy. Hence it cannot be said that DLA suppressed any such Pre Existing Disease. Thus, we hold that repudiation of the claim for suppression of Pre Existing Disease is illegal and unjustified. It constitutes deficiency in service on the part of the OP.
12. Thus, the complainant  entitled to sum assured of Rs. 25,00,000/- with interest at the rate of 9 percent per annum from the date of repudiation i.e. from 30/09/2013 as per policy. Moreover the complainant is also entitled to compensation of Rs. 1,00,000/- for physical and mental harassment and cost of Rs. 10,000/-from the OP. Accordingly following order is passed.

ORDER

1. The complaint is partly allowed.
2. The opposite party (OP) is directed to pay to the complainant sum assured of Rs. 25,00,000/- with interest at the rate of 9 percent per annum from 30/09/2013 till its realization by her.
3. The opposite party (OP) shall also pay to the complainant compensation of Rs. 1,00,000/- for physical and mental harassment and cost of Rs. 10,000/-
4. Copy of the order be furnished to both the parties, free of cost.