DATE OF FILING: 03.11.2015.
DATE OF DISPOSAL: 13.12.2017.
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging deficiency in insurance service against the Opposite Parties (in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated, the case of the complainant is that he being the son and nominee of Late Adhibas Raut, who was an insured member having membership No.0300259360 under five star associate obtained the Master Policy for Group Seva Plan Policy from the O.Ps on payment of single premium of Rs.1,00,000/-(Rupees One Lakh) and the policy was commenced with effect from 28.4.2013 for an assured sum of Rs.5,00,000/-. It is also stated in the complaint that the father of the complainant Late Adhibas Raut, the insured being persuaded by the Agent of the O.Ps filed the proposal form on 30.04.2013 stating the details therein, deposited the above premium. Being satisfied on the proposal form and on receipt of the premium amount of Rs.1,00,000/- the O.Ps issued the policy bond indicating the details thereon. Similarly, being persuaded by the agent of the O.Ps, the father of the complainant also obtained another insurance policy under membership No.0302591341 for an assured sum of Rs.4,00,000/- on payment of Rs.80,000/- as premium and the policy was commenced with effect from 28.2.2013. While the matter stood thus, the father of the complainant Late Adhibas Raut, the policy holder died on 12.02.2014 due to acute abdomen, cardio respiratory failure. The complainant filed claim process along with details and documents such as certificate of insurance, original death certificate, medical cause of death certificate from the doctor etc and claimed for the sum assured for payment under the above two policies i.e. No. 0302591341 and No. 0300259360 respectively. Instead of payment of the assured amount as stated above, the O.P.No.2 refund the premium against policy No. 0300259360 vide cheque No. 108550 dated 02.12.2014 for Rs.78,115/- and policy No. 0302591341 vide cheque No. 108551 dated 2.12.2014 for Rs.62,059/-. The aforesaid payments communicated in office letter dated 4.12.2014 of O.P.No.2 to the complainant with the remarks that the claim of the complainant has been rejected non-disclosure of medical treatment under going since 8th April 2013 by the complainant for cancer of Gastroeso-phageal junction. This fact was not disclosed in the proposal form dated 30.06.2013. In the complaint it is also stated that while accepting the premium amount of Rs.1,00,000/- and Rs.80,000/- respectively under the above two policies, there was no such condition imposed by the O.Ps. Further, it is stated that the medical attendant certificate of the doctor has been ignored by the O.Ps and the O.Ps received an amount of Rs.1,00,000/- and Rs.80,000/- under both policies stated above but paid Rs.78,115/- and Rs.62,059/- respectively which is an example of unfair trade practice. Alleging deficiency in insurance service on the part of the O.Ps the complainant has filed this consumer dispute with the prayer to direct the O.Ps to pay Rs.5,00,000/- and Rs.4,00,000/- under policy Number 0302591341 and 0300259360 respectively after deducting the amount already paid i.e. Rs.78,115/- and Rs.62,059/- to the complainant. The complainant has also prayed to pay a sum of 50,000/- as compensation towards harassment and mental agony and Rs.15,000/- for cost of litigation in the best interest of justice.
3. Upon notice, the O.Ps filed version through learned counsel Shri Manoj Kumar Singhdeo, Advocate and filed their written version/arguments. In the written version/ arguments, it is stated that the allegations and traversed in various paragraphs of the petition are all not true and correct and are hereby denied. The complainant is put to strict proof all such allegations which are not specifically admitted herein. One Adhibas Raut of Dehuka, Po: Balipadar, P.S: Buguda, Dist: Ganjam insured himself under policy bearing name “Product Bajaj Allianz Group Seva Plan” vide policy No.0300259360 & 0302591341 and he is not protected by the limitation provided by the law under Section 45 of the Insurance Act and the Insurance Company under section 45 of the said Act has a right to repudiate the claim, if the policy holder is found to have suppressed the material facts. After death of insurer, his successor the present complainant filed a claim petition before the concerned authority of Bajaj Allianz Life Insurance Company Ltd to get the benefit under the scheme mentioning in his claim petition that his father expired on 12.02.2014 at their residence. As per the company provision and terms and conditions of the policies the O.P. immediately paid the amount of Rs.78,115/- and Rs.62,059/- to the nominee and made an investigation through one Third Eye, Plot No. 795 (A) , Koti Tirtha Lane, Near Siddhi Mandap, Old Town, Bhubaneswar, Odisha and the report of investigator submitted to the insurance company for necessary action. So far the report of the investigator is concerned, it is submitted that he life assured was suffered from cancer prior to the issue of the policy and the age of LA is differed from all the documents. The O.P. rightly repudiated claim of the complainant as the complainant submitted false information to grab the policy amount. The statement contained in different paras of the petition of the petitioner is false, hence specifically denied by this O.P. Moreover, there is no cause of action to file the case and the cause of action shown is a creative one for the purpose of this case. The complainant is also liable for criminal proceedings for filing false affidavits, providing false information etc. Hence the O.Ps prayed to dismiss the case as the same has no merit and legal strength in interest of justice.
4. On the date of final hearing of the consumer dispute, we have heard the learned counsel for the complainant as well as for the O.Ps. We have also perused the pleadings and verified the materials placed on the case record. During the course of hearing of the consumer dispute, the learned counsel for the complainant submitted that the complainant has claimed insurance benefit under policy No.0302591341 and 0300259360 wherein the insured was assured a sum of Rs.5,00,000/- and Rs.4,00,000/- respectively on payment of Rs.1,00,000/- and Rs.80,000/- respectively towards policy premium. In policy No.0302591341 on 28.04.2013 the deceased policy holder paid Rs.1,00,000/- towards premium for assured sum of Rs.5,00,000/- and on 28.02.2013 the deceased policy holder paid Rs.80,000/- as premium for assured sum of Rs.4,00,000/-. While the above two policies were in force, the deceased policy holder died on 12.02.2014 as evident from the death certificate. The nominee complainant submitted the death claim and the O.Ps repudiated the claim of the complainant on the ground of suppression of previous disease of cancer. When the O.Ps did not settle the claim of the complainant the present complainant has filed this consumer dispute against the O.Ps. The learned counsel for the complainant has also filed a few decisions of Hon’ble National Commission in the case of Abdul Latheef & Ors Vs. Life Insurance Corporation of India reported in 2014(3) CPR 1(NC), in the case of Manager, Bajaj Allianz Life Insurance Co. Ltd Vs. (Mrs) Raj Kumar R/o Baran (Rajasthan) reported in 2014(3) CPR 178 (NC), in the case of Oriental Insurance Co. Ltd Vs Itrawati and Anr reported in 2014(3) CPR 131 (NC), in the case of New India Assurance Co. Ltd Vs. M/s Kamboj Ultra Sound & Diagnostic Pvt. Ltd reported in 2014 (3) CPR 732 (NC) etc and prayed to direct the O.Ps to settle the claim of the complainant.
5. On the contrary, the learned counsel for the O.Ps contended that one Adhibas Raut of Dehuka, Po: Balipadar, P.S: Buguda, Dist: Ganjam insured his life under ‘Product Bajaj Allianz Group Seva Plan’ vide Policy No. 0300259360 and 0302591341. After the death of the deceased policy holder the O.P. Insurance Company investigated the matter and on investigation it was found that the deceased policy holder was died at his residence on 12.02.2014 due to cancer. Prior to that he was suffering from cancer for which he was undergoing treatment at TATA Memorial Hospital since the deceased policy holder while obtaining policy suppressed the health condition of cancer disease and fraudulently obtained the policy hence the claim of the complainant was repudiated on the ground of suppression of material fact. However, the company as per the terms and conditions of the policy immediately paid a sum of Rs.78,115/- and Rs.62,059/- respectively towards the above two policies after deducting the service charges as applicable as per the insurance law. Since the O.P. Insurance Company has refunded the premium amount, there is no deficiency in service on the part of the O.Ps and the case of the complainant may be dismissed due to devoid of any merit in the interest of justice.
6. We have heard the above submissions of both parties and perused the same and have gone through the materials placed on the case record. On perusal of the documents we found that there is no dispute or doubt that the deceased policy holder had taken two policies as discussed above on payment of premium of Rs.1,00,000/- and Rs.80,000/- respectively and accordingly a sum of Rs.5,00,000/- and Rs.4,00,000/- was assured under the above two policies. It is also not in dispute that while the policy was in force, the policy holder died on 12.02.2014. On perusal of investigation report of investigator i.e. Third Eye, it reveals that the complainant was suffering from cancer and for that he was undergoing treatment at Tata Memorial Hospital at Mumbai. Due to cancer disease he was died on 12.02.2014 but prior to that he had obtained two policies as discussed above suppressing the material facts regarding his health. As insurance is a matter of ‘utmost good faith’ and in this case the deceased policy holder has violated the principle of insurance law by suppressing his health conditions during procurement of above two policies i.e. he had suppression his cancer disease to the Insurance Company for which he is not entitled to get the assured sum of Rs.5,00,000/- and Rs.4,00,000/- respectively under the aforesaid two policies in dispute. However, in this case as per the documents available in the record and it is an admitted fact that the O.P. insurance company has refunded the premium amount of Rs.78,000/- and Rs.62,059/- respectively against Rs.1,00,000/- and Rs.80,000/- received towards premiums under the said two polices. In the foregoing context, in our considered view we would like to say that when a contract is invalid or void due to suppression of materials fact regarding his health, the O.Ps are liable to refund the full amount of premiums received from the deceased policy holder since under a void contract no premium can be accepted by the insurance company. In the instant case, the O.P. insurance company has refunded premium amount on the ground of suppression of material facts by deducting the service charges and other charges as applicable. However, we are not agree with the decision of the insurance company since in case of insurance policy obtained by false representation, it will be void and claimant would get nothing but amount of premium deposited. In this case, the Insurance Company though received the amount under a void agreement but did not prefer to refund the whole premium amount to the nominee complainant while repudiating the claim after getting to know that the premium was received under a void contract. The equity, justice and good conscience say that it should be refunded to the nominee complainant. This is a welfare society and in a welfare state, the Insurance Company is to help the legal representatives of the deceased in their crisis period and even not to digest the deposits made by them on technical and legal grounds. Our finding is fortified by the decision of Hon’ble State Commission (Uttaranchal) in the case of Life Insurance Corporation of India versus Smt. Kamla Devi reported in (2004) 10 CLD 145(SCDRC-Uttaranchal).
7. With regards to compensation and cost, in this case the complainant has claim a sum of Rs.50,000/- towards compensation for harassment and mental agony and Rs.15,000/- as cost of litigation. In the aforesaid context we would like to state that the complainant has hired the services of a professional Advocate and filed his case in this Forum on payment of court fee and incurred expenses towards filing of this case to assert his rights, we therefore feel that it will be just and proper to award Rs.3,000/- towards cost of litigation as the O.Ps while returning the premium amount did not refund full premium amount and compel the complainant to take shelter under consumer protection law. However, we are not inclined to direct the O.Ps to pay any interest or compensation since the O.P. insurance company after receipt of the claim immediately refunded the premium amount by deducting the service charges. With regard to decisions filed by the learned counsel for the complaint in support of his case, we would like to view that we have carefully gone through the decisions as discussed above and feel that the said decisions of Hon’ble National Commission is not applicable to the present case due to factual differences of the said citations to that of the present case hence the citations are not accepted hence rejected.
8. In the light of the above discussions and considering the facts and circumstances of the case, we partially allowed the case of the complainant against the O.Ps who are jointly and severally liable to refund the rest premium amount of Rs.21,885/- and Rs.17,941/- under policy No. 0302591341 and 0300259360 respectively along with to pay a sum of Rs.3000/- as cost of litigation.
9. In the result, we direct the Opposite Parties who are jointly and severally liable to refund the rest premium amounts of Rs.21,885/- and Rs.17,941/- under policy No.0300259360 and 0302591341 respectively to the complainant together with Rs.3,000/- as cost of litigation. The aforesaid orders shall be complied by the O.Ps within 45 days from the date of receipt of this order failing which the complainant is at liberty to recover the whole amounts under Section 25/27 of the Consumer Protection Act, 1986. However there is no order as to compensation. The case of the complainant is disposed of accordingly.
10. The order is pronounced on this day of 13th December 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
