BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KAMRUP, GUWAHATI
C.C.No- 11/2012
Present:
1)Md.Sahadat Hussain, A.J.S. - President
2)Sri U.N.Deka - Member
Smti Parwati Devi Harlalka -Petitioner
W/O- Late Nand Kishore Harlalka
Flat No- 103, Mahavir Apartment,
Narayan Nagar,Kumarpara,
Guwahati-781009,
Dist-Kamrup(M), Assam
-Vs-
1. MAX New York Life Insurance Co. Ltd. - Opp. parties
Represented by its Managing Director,
Reg. office:
MAX House,Dr. Jha Mark,Okhla,
New Delhi,Pin-110020
Head office:
11th & 12th Floor, DLF Square,JacarandaMarg,
DLF City Phase-II, Gurgaon-122022,Haryana
2. MAX New York Life Insurance Co. Ltd.,
2nd Floor,Ganpati Enclave,Opp. Bora Service,
Ulubari,Guwahati-781007,Dist-Kamrup(M),Assam.
Appearance:
Ld .advocate Mr. Sunil Agarwal for the complainant and Ld. advocate Ms. Sila Rani Sarkar for the opp. parties.
Date of argument-14.07.16
Date of judgment-31.08.16
JUDGMENT
This is a case u/s 12 of Consumer Protection Act,1986
1. The complaint filed by Smti. Parwati Devi Harlalka against MAX New York Life Insurance Co. Ltd., Gurgaon and MAX New York Life Insurance Co. Ltd., Guwahati Branch was admitted on 6-2-2012 and notices were properly served upon them and they also filed their written statements on 10-5-2012 . Thereafter, the complainant filed her evidence in affidfavit on 20-06-2013 , but the opp. party side has not cross examined her although they have been given ample opportunities to cross examine her . In result, the day of 27-11-2015 was fixed for filing written argument by the complainant , but on 22-04-2016 ld. advocate Ms. Sila Rani Sarkar appears for the opp. parties and vide petition 211/16, prayed for time to file written argument and accordingly the prayer was allowed. Thereafter, both the parties filed their respective written arguments ; and after that we , on 14-7-2016, heard the oral argument of ld. advocate Mr Sunil Agarwal for the complainant and of ld. advocate Ms.Sila Rani Sarkar for the opp. parties and fixed the day of 2-8-2016 for delivery of judgment , but on that day we failed to deliver the judgment owing to ailment of the Stenographer but fixed the day of 16-8-2016 for delivery of judgment and that day also we failed to deliver the judgment owing to over works on that day and today we deliver the judgment which is as below:
2. The crux of the complaint is that the husband of the complainant late Nand Kishore Harlalka applied for a life Insurance policy (Smart Assure) before the opp. party in the year 2009 for Smart Assure -Security and growth plan , sum assured Rs.9,45,000/- and he had also furnished all correct and requisite information available with him and also paid Rs.35,000/- vide cheque no- 888865 dtd. 14-8-2009 drawn on SBI A.T. Road, Guwahati. The proposal application was filed before opp. party by their agent and as per requirement he appeared before the doctor of the empanelled hospital of the opp. party for medical checkup and the doctor of the said hospital carried out medical checkup of him and also conducted various tests for opening a life insurance policy as per procedure laid down, and the said doctor , after conducting all requisite test and checkup, found him medically fit to open a policy and submitted his report to the opp. parties and then the opposite parties varified all medical summary /reports as well as the information furnished by him and found him fit to take policy from them and then they informed him that he was medically fit and his application was accepted and the policy would be issued shortly and accordingly issued policy no-757553946 in his favour, thereafter, on 21-8-2010 he suffered from chest pain and breathing problem and he was taken to International Hospital ,Guwahati but he died on that very day in the said hospital due to acute left ventricular failure . Thereafter, the complainant filed a death claim before the opp. party on 10-11-2010 but the latter repudiated the claim and sent the repudiation letter dtd.31-12-2010 to the complainant stating that the claim was repudiated for non-disclosure of material information at the time of making the proposal and paying the fund value under the policy. The husband of the complainant disclosed all material information to the opp. party and the doctor of the opp. party , after checking up him and doing necessary tests, found him medically fit to take policy and the opp . party also, being satisfied with the information supplied by him as well as by medical report submitted by their doctor, issued policy in his name and therefore the opp. party can not repudiate the claim of the complainant. The opp. party in a very whimsical manner issued a cheque of Rs.1644.87/- only pertaining to the surrender value of the policy without giving any opportunity of hearing to her but the complainant did not encash the said cheque as she has every legal right to claim the death benefit from the opp. party for the death of her husband. The complainant is a consumer under the opp. party within the meaning of Section-2(1)(d) of Consumer Protection Act,1986. Accordingly she prayed for directing the opp. parties to pay her Rs.9,45,000 as death claim benefit and Rs.2,00,000/- for loss, pain and suffering sustained by her along with the cost of the suit.
3. The gist of the pleading of opp.parties is that the complaint is false, malicious and malafide one and hence the complaint is liable to be dismissed u/s 26 of Consumer Protection Act, 1986. The DLI had taken other policies from multiple insurance companies such as Bajaj, Metlife and Tata AIG for about Rs.45,10,000/- which revealed from their investigation. The DLI had also taken policies from some other insurance companies like Bharati AXA ,Kotak and Future Generali and therefore, on the basis of aforesaid facts they declined the death claim on the ground of non-disclosure of material information of past insurance coverage taken from multiple insurance companies. They are no any negligence or deficiency of service as alleged by the complainant and they rightly repudiated the death claim on the ground of suppression of material fact as to taking insurance policies from different companies before taking insurance policy from them. At the time of proposal of policy, the policy holder is duty bound to disclose of the material information in the proposal form, but the DLI, by misrepresentation of material facts, intended to defraud the opp.party and therefore the contract of insurance is void and not tenable in the eyes of law as entered by DLI to defraud them. The DLI passed away within a short span of signing of the proposal form and the insurance policy, which itself is a strong ground to reasonable doubt about correctness of material representation made in the proposal form. The DLI, Sri Nanda Kishore Harlalka submitted the duly signed proposal form bearing No.757553946 on 18.8.2009 with a smart assurance (Unit Link Investment Plan) giving of relevant details and information in the prescribed form for assure sum of Rs. 9.45,000/- under the base plan in the proposal form, and in the page No.4 of this proposal form he had given declaration that he had made complete, true and correct declaration of all the facts and circumstances as may be relevant for acceptability of the proposal, but in page No.2 in column No.C-1 he did not discloses detail of the policies he had taken from multiple insurance companies like Bajaj, Metlife, Tata AIG, Bharati AXA, Kotak and Future Generali etc. and on receipt of the said proposal the insurance policy bearing No. 757553946 was issued to him on 26.8.2009 with effective coverage as 26.08.2009 with a model premium of Rs.35,000/- annually. Thereafter, on 21.1.2010 they received a fresh proposal form bearing No. 770639383 duly filled up and signed by the DLI and accordingly the policy No. 770639383 duly filled up and signed by a DLI and accordingly the policy No. 770639383 was issued to him on 27.1.2010 with effective date of coverage 27.01.2010. The DLI had expired on 21.8.2010 and they received a death claim from the present complainant on 10.11.2010, where it was stated that DLI had passed away on 21.8.2010 due to acute life ventricular failure and claimed the sum assured, and after receiving the information about his death, they sent condolence letter to the complainant on 1.11.2010, through which, the latter was asked to furnish additional documents for resolution of the claim filed by the complainant as per terms and condition of policy contract; and the complainant, on 22.11.2011, furnished some additional documents, such as death intimation form and the attending physicians statement to them; and after receiving the documents they got a investigation done through their investigating agency, and also received investigation report. From investigation report they came to know that the DLI had taken their policies from different insurance companies such as Bajaj, Metlife and Tata AIG for a sum of Rs.45,10,000/- and it was also found that the DLI had taken policies from their insurance companies such as Bharati AXA ,Kotak and Future Generali and hence total sum assured of the aforesaid policies are 96.55 lakhs . They, on the basis of aforesaid facts, declined to allow the death claim sought by the complainant for reasons of material non-disclosure of past coverage details with multiple insurance companies. They paid the account value of Rs.16,499.87/- under the said policy. They received reconsideration request from the complainant and the same request was duly replied by them vide their letter dtd. 14.1.2011. The complainant is not entitled to any relief from them.
4. We have perused both side’s ld. counsels’ argument as well as the evidence adduced by the complainant sides.
It is found that it is both sides’ admitted fact that the husband of the complainant namely Late Nand Kishore Harlalka made an Insurance Policy (Smart assure) with the opp. party-Max New York Life Insurance Company Ltd., Guwahati Branch vide Policy No- 757553946 in the year 2009 and during effectiveness of the said policy he has died at international Hospital on 21-8-2010, and after his death , the present complainant filed claim petition before the opp. party praying on 10-11-2010 for paying her the death benefit but the opp. party side , on 31-12-2010 repudiated the claim and they repudiated the claim on the ground that the insured had not disclosed past insurance coverage which he had done with multiple insurance companies like Bajaj, Ket Life, Tata Aig, Bharti Axa, Kotak , Future Generali etc.
5. Now, question is that whether repudiation of the claim as done by the opp. party is justified one ?
We have perused the repudiation letter(Exhibit-ii) and found that the opp. party quoted in the said letter that Late Nanda Kishore Harlalka had given declaration in the proposed form that he had made complete, true and accurate disclosure of all the facts and circumstances , and had not withheld any information as may be relevant for acceptability of the proposal and he had given answer “No” to their question “Do you or your family currently have any life , accident disability , critical illness or medical insurance or other insurance policy with us or any other insurer.” It is also found that in the said letter they further mentioned that they received information that Nand Kishore Harlalka was insured with Kotak Life Insurance, Tata AIG, Birla Sun Life Insurance, Future Generali , Metlife and Bajaj Allianz Life Insurance Company for total sum assured of approximately Rs. 96.55 Lacs. prior to taking policy from them , and that had the above facts been disclosed to them by him, the policies would not have been issued by them , and that in the light of these facts, they are declining the claim for reasons of such material misrepresentation.
In the said letter it is further mentioned that they were sending the acquired account values of Policy No- 4945506240, 757553946 and 770639383 Rs,16,499, 87 and 6,726.73 to the claimant vide cheque No- 044906 and 046632 and they also informed the claimant to approach the Ombudsman of insurance companies, if she is not satisfied with the action taken by them.
In this case , the opp. party side has not cross -examined the complainant side witness ( the complainant) after getting ample scope to cross-examine her . Secondly, the opp. party side has not adduced evidence in support of their case.
The complainant side’s ld. counsel Mr. Sunil agarwal, forwarding written and oral argument, states that, as the opp. party has not adduced evidence to support their case nor cross-examined the complainant sides’ witness, their plea can not be held to have been proved . In support of his argument he refers certain case laws , which we are taking note of-
In Janki Vashdeo Bhajwani and anothers ( appellant) VS Industrial Bank of India Limited and another (respondent) AIR 2005 Supreme Court 439, the apex court observes that the party is to prove their plea adducing their own evidence and in that pursuit the witness must be present in the witness box to face cross-examination.
In Vidhyadhar (App.) VS Mankikro and another ( respondent) , AIR 1999 Supreme Court1441(I), the apex court observes that where a party to the suit does not appear in the witness box and states his own case on oath and doesnot offer himself to be cross-examined by the other side, a presumption would arise the case set up by him is not correct.
From above observations of the apex court, it transpires that the party to a suit must give his evidence appearing in the witness box in support of his case and also to offer himself to be cross-examined by the other side and if such party defaults to do so, a presumption arise that the case set up by him is not correct.
In the case in hand, it is seen that the complainant has not admitted the plea of the opp. party rather denies their plea , and on the other hand , the opp. party side neither adduces their evidence, nor cross –examined the witness of the complainant side. So, in such backdrops, basing on above quoted observation of the apex court, we must hold that the allegation / plea of the opp. party that Late Nand Kishore Harlalka had, at the time of proposal of the insurance policy with them ,suppressed the fact that he had already made insurance policies with other insurers- Bajaj, Ket Life, Tata Aig, Bharti Axa, Kotak and Future Generali etc. prior to taking policy from them is not correct statement . Therefore, we hold that the opp. party side has failed to prove that the insured Late Nand Kishore Harlalka had insurance policies with other insurance companies- Bajaj, Ket Life, Tata Aig, Bharti Axa, Kotak and Future Generali prior to taking the concerned insurance policy from the opp. party.
Secondly, the Opp. Party side in their written argument takes another plea that the insured had a pre-existing disease- Diabetes Mellitus at the time of proposal of the policy and he suppressed that fact also . After perusing the written statement, we have found that the opp. party has no averment to that effect. Hence, that plea, which is taken only in the stage of argument, can not be allowed to be taken. Evenif, it is supposed that the opp. party has such plea in their W/S , yet we find that they have failed to prove that plea. Thus, we hold that the complainant has succeeded to establish that the insured had no pre-existing deseases including Diabetes Mellitus at the time of taking of the policy, and he had also not made any policy with other insurance companies like - Bajaj, Ket Life, Tata Aig, Bharti Axa, Kotak and Future Generali prior to taking the questioned policy from the opp. party. In such backdrops, we hold that the ratios of Satwant Kaur Sandhu VS New India Assurance Co. Ltd. IV (2009) CPJ 8 Sec can not come to support the case of the opp. parties. On these premises, we hold that the insured Late Nand Kishore Harlalka had not suppressed any material facts at the time of taking the questionned policy; and for that reason also, we hold that the act of repudiation of the claim filed by the complainant praying for giving death benefit for the death of the insured, Nand Kishore Harlalka as per said insurance policy (Policy No-757553946) by the opp. party is an illegal act and such repudiation amounts to committing deficiency of service towards the complainant ;and in result they are liable to pay Rs.9,45,000/-( Nine lakh fourty five thousand only) as death claim benefit to the complainant on the basis of said insurance policy with interest at the rate of 6% p.a. from this day.
6. It is evident that, by illegally repudiating the claim, the opp. parties caused harassment and mental agony to the complainant , for which, they are liable to pay atleast Rs.10,000/- as compensation . On the other hand, for the illegal repudiation of the claim by the opp. parties, the complainant had to file and proceed on the present complaint against the opp. parties, and in that pursuit she had to incur an expenditure of good sum, hence the opp. party side is liable to pay another amount of Rs.10,000/- as cost of the proceeding
7. Because of what has been discussed as above, the complaint against both the opp. parties is allowed on contest and they are directed to pay Rs.9,45,000/- with interest at the rate of 6% p.a. from this day to the complainant as death claim relief for the death of her husband (the insured) –Late Nand Kishore Harlalka , as per Policy No: 757553946 and also to pay her Rs. 10,000/- as compensation and Rs.10,000/- as cost of proceeding , to which , they are jointly and severally liable. They are directed to pay the amounts within three months , in default of which , other two amounts will also carry interest in the same rate.
Given under our hands and seal of this forum on this day 31st August,2016.
Free copies of judgment be delivered to the parties.
(Md.S.Hussain)
President
(Mr.U.N.Deka)
Member
