Shri B. Mukhopadhyay, President.   

This is an application u/s.12 of the C.P. Act, 1986.

            Today is fixed for passing judgment in respect of the complaint filed by the complainant Rubi Biswas praying for directing the OP to pay the entire policy amount of Rs.5 lakh in respect of the insured Dr. Jayanta Kumar Mondal who died subsequently and as per policy the present complainant is the nominee and so she submitted claim application to the OP along with all documents but suddenly OPs by letter dated 31-05-2011 repudiated the claim of the complainant with regard to the Policy No.622981165 on the ground that the policy lapsed on 09-04-2010 for non-payment of premium but fact remains the insured was suffering from August, 2010 and expired in the month of December, 2010 and so he was unable to pay the premium.  Further the OP repudiated the claim of the complainant with regard to the Policy No.616717989 on the ground that there was suppression of material fact with regard to the health condition of the life assured by its letter dated 16-06-2011 and in this case the complainant as nominee has prayed for refund of the claim of Rs.5 lakh (S.A.)   according to policy No.622981165 and Rs.4 lakh with regard to the Policy No.616717989.

On the other hand OP by filing written statement submitted, practically in the application form for purchasing insurance policies the insured suppressed the entire health condition of the insured Dr. Jayanta Kumar Mondal and after his death on enquiry and investigation of all documents  regarding his treatment prior to his death and prior to opening the insurance policies were collected from different hospitals, it was found that said insured Dr. Jayanta Kumar Mondal suppressed the fact that he was suffering from several complicated diseases and for such thing it may cause death and for that reasons the complainant as nominee is not entitled to any claim and for which it was repudiated.  But subsequently, considering the entire position of the present complaint the matter was taken up by the OP Company and OP Company submitted by swearing affidavit that in respect of the one insurance policy a sum of Rs.3,68,860-60 may be paid out of Rs.4 lakhs because already Rs.31,139-45 has already paid to the complainant.

OP prayed for disposal of this case and if this settled amount is not accepted by the complainant in that case OPs contention is that repudiation as made by the OP as legal and so the case should be dismissed.

Decision with Reasons

In fact in this case argument was heard from the complainant but on behalf of the OP written version, evidence in chief and all documents were filed by the OP informing that Dr. Jayanta Kumar Mondal was a doctor and he purchased the insurance policy in his name from this company in 3 to 4 occasions by filling application form and that was accepted and the declaration as made by Dr. Jayanta Kumar Mondal against the policy that he was not suffering from any diseases and against that column it was noted as ‘no’ and further peculiarity is that in all the policies he did not give previous details of life to the insured.  Another factor is that in the family history nothing was noted and nominee’s name was Rubi Biswas, no doubt and it is also noted that Rubi Biswas is the sister of Dr. Jayanta Kumar Mondal.

            Practically on overall evaluation of the evidence in chief of the complainant and also all the copies of the documents as filed by the complainant including OPs, it is clear that Dr. Jayanta Kumar Mondal purchased one policy Annexure-A vide proposal No.616717989 for assured sum of Rs.4 lakhs subject to payment of early premium of Rs.40,000/- and that was submitted on 16-05-2009 by Dr. Jayanta Kumar Mondal but in the said policy Column-E 1 to 8 Jayanta Kumar Mondal put insurance under N.A.(nothing abnormal).  So it is clear that Dr. Jayanta Kumar Mondal, the insured gave declaration as doctor as he had his knowledge about his heath and diagnosis health diagnosis for any reason and his health was quite OK against that proposal of order of the policy and he purchased policy being Policy No.616717989, 622981165, 631058781.  It is specifically mentioned that policy duration was 1 year 2 months and one year in respect of two policies and this complainant by filing claim application submitted all documents but when the medical papers were examined by the insurance authorities it was found that by profession Dr. Jayanta Kumar Mondal was a homoeopathy doctor and he was a patient of urinary disturbance, diabetes mellitus – 2 since 2005 and for such reason he was admitted to Daffodil Nursing Home on 27-03-2005 to 06-04-2005 and from 10-09-2005 to 16-09-2005 and further said Dr. Jayanta Kumar Mondal sustained traumatic injury caused due to RTA on 22-06-2007 and his head was injured and got struck in his lower abdomen and he had several episodes of vomiting and so admitted to hospital on 23-06-2007 and was discharged on 28-06-02007 from Apex General Hospital of Baguihati and practically he was a patient of diabetes associated with other problems since 2005 and in support of that Annexure I is filed which was issued by Daffodil Nursing Home and considering those documents it is clear that prior to date of filing proposal application form for purchasing insurance policy no doubt Dr. Jayanta Kumar Mondal had been suffering from several acute diseases like diabetes urinary problem along with some other diseases and due to sustaining several accidental injuries in the year 2007 and it is proved from the documents of the treatment in respect of disease of Dr. Jayanta Kumar Mondal that he had been suffering from DM and was under regular OHA and had uncontrolled DM since 2005 and had been repeatedly hospitalized with complaints of stricture of urine, UTI and sepsis.  But anyhow Dr. Jayanta Kumar Mondal being a doctor did not disclose the same in the proposal forms for purchasing insurance policies and fact remains, he purchased three policies bearing No.616727989, 622981165 and 6310587816 disclosing nothing about his diseases against the declaration as made by Dr. Jayanta Kumar Mondal but subsequently it was found that it was false declaration when vital documents were searched out by OP about his uncontrolled DM treatment had been continued till his death and it is a fact that he was born on 19-03-1963 but died on 21-12-2010 and from the death report it is found that said Dr. Jayanta Kumar Mondal died due to acute diabetes and ultimately renal failure caused and he died.  So, there is no doubt to hold that Dr. Jayanta Kumar Mondal died at the age of 47 years and he was unmarried at that time leaving behind two sisters Silpa and Rubi what is found from the record.  So, the vital question is whether declaration as made by the insured Dr. Jayanta Kumar Mondal was faithful and whether his declaration about the position of his health and about his previous term prior to earning those policies was honest declaration or not.

            In this regard we have gone through the ruling reported in United India Insurance Company Ltd. vs. MKJ Corporation (1996) 6 SCC 428 wherefrom, we have gathered that it is a fundamental principle of insurance law that utmost faith must be observed by the contracting parties.  Good faith forbids either party from non-disclosure of the facts which the party privately knows to try the other into a burgain from him.  Ignorance of that fact is believing to the contrary and relying upon this ruling and the fundamental principle of law regarding the declaration of a particular party of a contract, we are convinced to hold that Dr. Jayanta Kumar Mondal being a doctor gave declaration in the application form of purchasing insurance policies that he had never been diagnosed or clinically treated for any diseases but truth was searched out by the OP by collecting one after another treatment sheets from different Nursing Home what disclose that this deceased prior to purchase of the insurance policy had been treated and he had been suffering from DM along with urinary UTI and Sepsis and ultimately that matter was suppressed by the deceased insured but one after another policy was purchased by him and all the policies were of the sum assured range of Rs.4 lakh to Rs.5 lakh.  It indicates that complainant’s elder brother, the deceased Dr. Jayanta Kumar Mondal disclosed false statement about his health about previous treatment and also about his sustaining severe injuries on intestine and head in the year of 2007 for RT accident but in this contest we have also considered another reported ruling 2000 (2) SCC 734 and relying upon this ruling including the fact of this case it is found that complainant did not disclose the fact but opened the policies and so the policy are vitiated and for which the OP did not process the complainant’s prayer for payment of the claim amount and ultimately repudiated the same.  And considering the above principle of law  and also the ruling reported in III (2003) CPJ 172 NC and I (2009) 212 (NC) including the above discussions, we are of view that the complainant’s entire claim was rightly repudiated on the ground that the very fact of claim is proved repudiated for misrepresentation material non-disclosure about past history of Dr. Jayanta Kumar Mondal and for which invariably there is no ground anyhow by this complaint to contradict the OP’s reason for not releasing the amount because the policies were purchased by declaring false statement by misrepresentation and suppressing the death about the status of health of Dr. Jayanta Kumar Mondal. 

            In the light of the above observation we are convinced to hold that there is no ground to allow the complaint under any circumstances and the complaint of the complainant was rightly repudiated.   So, the Forum has no jurisdiction to entertain such compliant but anyhow we are not unmindful to the fact that the insurance company even after that showed there morality by submitting such application supported by an affidavit that they are willing to give Rs.3,68,860-60p. subject to accept that proposal by the complainant and so we are directing the OP to issue a cheque of Rs.3,68,860-60 p. in fvour of the present complainant iincluding the legal heirs of deceased Dr. Jayanta Kumar Mondal because nominee is the custodian of the money but he or she is not the owner of the same but as nominee he/she may withdraw but the amount must be distributed to legal heir what is his/her legal duty to distribute the same to the legal heirs of the deceased.   So adopting that legal position we are directing the OP to issue a cheque in respect of the amount of Rs.3,68,860-60 p. in fvour of the legal heirs of Dr. Jayanta Kumar Mondal the deceased policy holder.  Invariably before that the OP shall be satisfied about the status of the legal heirs of deceased Dr. Jayanta Kumar Mondal and then issue cheque after collecting the joint bank account of legal heirs of Dr. Jayanta Kumar Mondal and accordingly, the entire case is disposed of.

Hence,

Ordered

The complaint be and the same is disposed of accordingly as per prayer of the OP to give certain amount but original case the present complaint is dismissed on contest without cost.

            OP is directed to act as per spirit of this order by issuing a cheque of Rs.3,68,866-60 in favour of the legal heirs of Dr. Jayanta Kumar Mondal and invariably they must be the living brothers and sisters of Dr. Jayanta Kumar Mondal or his mother if she is alive but that shall be determined by the OP.  But in this case OP shall take step at an earliest opportunity without taking any further recourse of harassment so that this complainant including her other living brothers and sisters may get the said amount only for the OPs morally and socially expressed as made in this case as filing in this complaint on 10-04-2013.