Punjab

StateCommission

FA/12/456

Seema - Complainant(s)

Versus

Max New York Life Insurance Company Ltd. - Opp.Party(s)

Ishwar Lal

19 Mar 2015

ORDER

 

 

                                                                   2nd ADDITIONAL BENCH

                                                          

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             First Appeal No.456 OF 2012

 

                                                          Date of Institution: 16.04.2012    

                                                  Date of Decision:      19.03.2015

 

 

1       Seema Wd/o Late Sh.Rupinder Kumar

2       Anushka Minor daughter of late Sh.Rupinder Kumar

3       Divyanshu minor S/o Late Sh.Rupinder Kumar

          Appellant No.2 and 3 are minors, though Appellant no.1, their           mother and natural guardian.

          All r/o H. No. 83, Shaheed Udham Singh Nagar, Jalandhar,     Punjab.

                                                                                                                                                                   …..Appellants/Complainants.

         

                                      …….Versus……..

 

1       Max New York Life Insurance Company Ltd 90-a Udyog                   Vihar, Sector No.18, Gurgaon Haryana, Through its                      Manager.

 

2       Max New York Life Insurance Company Ltd., 917/918,Ist                  Floor, Namrata Complex, G.T Road, near Bus Stand,                Jalandhar through its Manager.                                                                                                                                                                                                                                                                                                                    ….Respondents /opposite parties.

 

                                               

First Appeal against order dated 01.03.2012 passed by the District Consumer Disputes Redressal Forum, Jalandhar.

Quorum:-

 

          Shri Gurcharan Singh Saran, Presiding Judicial Member.

          Shri Jasbir Singh Gill, Member.

          Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                   :         Sh. Ishwar Lal, Advocate

          For respondent            :         Ms. Jaimni Tiwari, Advocate for

                                                          Sh. Rajnesh Malhotra, Advocate

 

          HARCHARAN SINGH GURAM, MEMBER:-

 

                                                ORDER

 

                   This appeal has been filed by appellants/complainants (hereinafter called as the complainants) against the order dated 01.03.2012 of the District Disputes Redressal Forum, Jalandhar (hereinafter called as “District Forum”) in C.C. No.364 of 2009 vide which the complaint of the complainant was dismissed on the ground that non-disclousure of vital material facts regarding health of the insured at the time of obtaining the policies, the opposite parties/insurance company was justified in repudiating the claim of the complainant.

2                 A consumer complaint was filed on the allegation that Sh. Rupinder Kumar husband of complaint No.1 and father of complainant no.2 & 3 had purchased three insurance policies bearing nos. 338763675, 453804262, 449960145 from the Respondents / Ops (hereinafter called the “ OPs”) vide proposal form dated 28.11.2007 for two policies and one proposal form dated 31.10.2007 respectively and paid the premium amount and the policies were issued for a sum of Rs.1,79,602/-, second policy was for Rs.1,35,631/- and third policy for Rs.1,78,476/-. The deceased husband of the complainant had paid two installments but unfortunately he expired on 06.12.2008 at DMC Hospital, Ludhiana due to cardio respiratory arrest. In order to get the insurance claim of her husband under the above said policies, she submitted the claim form and all medical reports to the respondents pertaining to the insurance policies except policy no.449960145 and made a request to release the same in her favour. The Ops instead of releasing the claim amount issued a letter dated 27.02.2009 repudiating the death claim against the above mentioned policies on the ground of non-disclousure of disease or being patient of Diabetes Mellitus and having history of Seizures. It was stated that husband of the complainant was not suffering from Diabetes and there was no history of Seizures as alleged by the OPs. It was submitted that deceased was serving in Punjab Police and got promotion in commando battalion where strenuous exercises were gone through by him. It was pleaded that non-release of claim amount in spite of requests, visits and reminders was an act of sheer negligence, deficiency in services and unfair trade practice on the part of the OP/Insurance company. It was further submitted that all other insurance companies had released the amount of her husband without any such allegations. She served statutory legal notice dated 27.03.2009 but received no reply to her notice. The complainant was forced to file her complaint on behalf of herself and also on behalf of the complainant no.2 and 3 being their natural guardian next friend and was not having any adverse interest against minors. She made a prayer for issuance of directions to the OP for release of the amount pertaining to the insurance policy no. 338763675 and 453804262 in the name of her deceased husband along with interest and damages to the tune of Rs.1,00,000/- and in addition to that Rs.10,000/- be awarded to her on account of litigation charges.

3                 Upon notice, Ops no.1 and 2 filed their written reply by taking preliminary objections and submitted that the instant case was false, frivolous, incorrect, malafide and was nothing but an abuse of the process of law. This complaint was filed just to avail undue advantage and made a prayer to dismiss the complaint filed by the complainant U/s 26 of the Consumer Protection Act, 1986 (hereinafter referred to as "Act"). It was stated that complainant did not approach the Hon'ble Forum with the clean hands as there was a willful concealment of vital information at the time of the proposal stage by the deceased life assured i.e. non-disclosure regarding history of seizures in January, 2007 and being a known case of Diabetes Mellitus - Type 2 for the past five years. It was submitted that the deceased, life assured had taken a policy issued by the Ops on 7.12.2007 bearing policy No.449960145 on account of non-payment of premium due on 13.2.2008 the policy lapsed on 14.3.2008 and was in lapsed mode at the time of death of the deceased. It was submitted that after the lapse of issuance policy bearing no.449960145, the deceased again applied for two more insurance policies bearing no.338763675 and 453804262 on 28.11.2007 and on receipt of the initial premium, the insurance policies were issued on 7.12.2007 and 8.12.2007.  In all the policies issued by them deceased's wife  was made nominee, as per the documents received from the complainant for settlement of her claim in lieu of the policies obtained by her deceased husband. In the physician's statement in Form C duly signed by Dr.Ajit Sood dated 13.01.2009. The deceased was stated to be a known case of Diabetes Mellitus Type II and also had a history of Seizures in January 2007 and had Jaundice in May 2008. Since the deceased did not disclose his ailment in the proposal form on the basis of Form C under the signatures of Dr.Ajit Sood, Professor & Head  Gastroenterology, DMC Ludhiana. The said claim was repudiated by the Ops. The insured is obliged to give full and correct information on all matters which would influence the judgment of a prudent insurer in determining whether he would be able to accept the risk and at what rate of premium and subject to what conditions. There was no negligence or deficiency in service whatsoever on their part while dealing and looking to the claim under concerned policies, thus present complaint was liable to be dismissed.

4                 District Forum allowed the parties to lead their evidence in support of their averments.

5                 The complainant tendered into evidence her affidavit Ex.CW-1/A, Ex.C-1 is copy of  birth certificate, Ex.C-2 is copy of birth certificate, Ex.C-3 is letter dated 27 February 2009, Ex.C-4 is copy of legal notice, Ex.C-5 and Ex.C-6 are copies of postal receipts, Ex.C-7 is copy of letter dated 13.1.2009, Ex.C-8 is copy of Punjab National Bank receipt and closed evidence. On the other hand, Op has tendered in evidence affidavit Ex.O-A, Ex.OP-1 is copy of proposal form, Ex.OP-2 is copy of form with personal details, Ex.OP-3 is copy of death claim application form A, Ex.OP-4 is copy of attending physicians statement for death claim, Ex.OP-5 is copy of letter of authorization, Ex.OP-6 is copy of e-mail, Ex.OP-7 is copy of letter dated 21.02.2009, Ex.OP-8 is copy of letter dated 27 Feburary, 2009, Ex.OP-9 is copy of legal notice, Ex.OP-10 is copy of letter dated April, 14, 2009 and closed the evidence.

6                 District Forum heard counsel for the parties and perused the documents placed on the file and dismissed the complaint of the complainant as stated above.

7                 Aggrieved with the order of the District Forum the present appeal was filed by the complainant on the grounds that the District Forum did not look into the cause of death being Cardio Respiratory Arrest and also decided the complaint only on the grounds taken by the Ops and the grounds of dismissal as the deceased did not disclose the material facts regarding his health at the time of obtaining the policies. Such inference while dismissing the complaint taken by the District Forum was wrong and the District Forum order deserves to be set aside. No evidence except the Attending Physicians Statement for Death Claim “ Form C” was led by the Ops in order to prove that the deceased life assured was suffering from pre-existing disease. The cause of death being Cardio Respiratory Arrest was not related to any disease; as such findings of the District Forum are erroneous. The death occurred due to cardiac arrest and he was not in a position to disclose the facts about diabetes as he was not suffering from this disease at the time of filling up the proposal form and claim was wrongly repudiated by the Ops. No affidavit was taken by the insurance company of Dr.Ajit Sood, who had filled up attending physician’s statement for death claim by the Ops in order to support their version for the repudiation of her claim. Evidence regarding the date of the earlier disease suffered by the deceased, as mentioned in the written reply is without the support of any medical treatment record brought by the OPs. Onus to prove that deceased was in knowledge of these diseases and had been taking treatment for the same prior to taking of the policy was

upon the OPs, which they failed.

 8                We have heard arguments of Ld.Counsel for the parties  and have perused the record placed on the file.

9                 We have considered the case of Surinder Kaur …Versus..  Life Insurance Corporation of India reported in 2002(3) CLT 659 wherein it was held "History in the hospital record is not enough evidence to repudiate the claim, unless it is coupled with medical record for the treatment taken by the patient." No affidavit was brought on the record of Dr.Ajit Sood who wrote the discharge summary to prove the point of the Ops that the deceased was suffering from the diseases mentioned in the discharges summary.

10               We have gone through the written reply filed by the OPs in the District Forum, where in it was admitted by them that they received the Death Claim Application Form on 6.01.2009 ,giving the intimation of the death of the policy holder on 6.12.2008. On receipt of the claim form, the claim was evaluated. The claim was repudiated on the ground of material medical non-disclosure by the policy holder in the proposal form, as the policy holder had willfully suppressed the facts about his health from them. It was found by them by going through the Attending Physician’s Statement in Form C, duly signed by Dr. Ajit Sood, Professor and Head Gastroenterology, DMC Ludhiana dated 13.01.2009, that the policy holder was a known case of Diabetes Mellitus Type-ii for the last five years and had a history of seizures in January 2007, and had jaundice in May 2008. Thus, the claim was rightly declined, vide their letter dated 27.02.2009 communicated to the complainant.

11               Counsel for the complainant has submitted that the diabetes and hypertension are curable diseases and it can be cured by taking regular medicines. This submission of the counsel for the complainant is supported by the judgment of the Hon'ble National Commission, New Delhi reported in 2009(3) CLT 229 "New India Assurance Company Ltd… Versus… Arunaben Jayantibhai Shah" in that case, the insured suffered from diabetes and chronic artery disease and the claim was repudiated by the insurance company due to non-declaration of the disease whereas the deceased had died due to cirrhosis of liver, which has not having any connection with the Coronary Artery Disease."

12.          As per the law laid down by the Apex Court in its judgment reported in Life Insurance Corporation of India and others Vs. Asha Goel , 2001 (1) CLT Page 162, had discussed the circumstances under which the policy can be repudiated on the ground of suppression of material facts. They observed that following three circumstances are required to be proved to repudiate the claim on the ground of suppression of material facts as under:-

            (a)   the Statement must be on a material matter or must

                    suppress facts which it was material to disclose;

2. the suppression must be fraudulently made by the

         policy holder; and

3. the policy holder must have known at the time of

         making the statement that it was false or that it

         suppressed facts which it was material to disclose

           Clause (b) and (c)   reveal that the suppression must be fraudulent and it must be in the Knowledge of the policy holder at the time of taking the policy. One may be suffering from any disease but he may not be in the knowledge of that disease. OPs have not placed on the record any treatment record of the complainant, vide which it would be seen that he might had taken any treatment from any hospital for this disease. Therefore, in case, he had not taken any treatment and was not in the knowledge that he was suffering from such a disease, then no findings can be recorded that he had suppressed this fact fraudulently or that he was making a false statement at the time of filling the proposal form. Consequently clause (a) will not apply. Therefore, the repudiation by the OPs does not fulfill the conditions as laid down by the Apex court.     

13.              There is also another judgment of Hon'ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla as case titled as ICICI Lombard General Insurance Company Ltd., ..Versus… Jasbir Singh." Reported in 2014(1) CLT 220, in that case, claim was repudiated on the ground that the insured suppressed pre-existing disease of hypertension at the time of filing the proposal form. Insured medically examined by the empanelled medical officer of the insurance company before issuing the insurance policy. It is held that hypertension is a life style disease and easily controllable with conservative medicines."

14.              In view of the above discussion and also citations mentioned herein above Diabetes is a disease, pertaining to wear and tear of the body and can be controlled by taking medicines or by taking regular exercises and will not be cause attributable to the death of the deceased by Cardio Respiratory Arrest. 

15.              In view of observations made above, we are of the view that order passed by the District Forum is liable to be set aside. Accordingly, same is set aside and appeal of the complainant is accepted and Ops are directed to pay the amount of two policies as per claim lodged by her along with payment of interest @ 12% from the date of repudiation of the claim till payment along with compensation of Rs.20,000/- for causing mental agony and harassment and also to pay a sum of Rs.11,000/- as litigation cost.

16.              Arguments in this appeal were heard on 12.03.2015 and the order was reserved. Now the order be communicated to the parties.       

17.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                       (GURCHARAN SINGH SARAN)

                                                      PRESIDING JUDICIAL MEMBER

                       

                                                         (JASBIR SINGH GILL)

                                                                       MEMBER

 

                                                          (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

March, 19   2015.                                                                

Surinder