Delhi

New Delhi

CC/1118/2011

Rakhi - Complainant(s)

Versus

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

20 Feb 2020

ORDER

 

 

 

       CONSUMER DISPUTES REDRESSAL FORUM-VI (DISTT. NEW DELHI),

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC. 1118/2011                                                                  Dated:

In the matter of:      

                Ms. Rakhi

               D/o Sh. Subhash Chander                                                                                      

               R/o H. no. 86, Gali no. 1,

               Rajiv Colony, Mamurpur,

                Narela, Delhi-110040                                                                                                                                                                                                                                                                                          ………… COMPLAINANT  

 

VERSUS

            M/s Max New Your Life Insurance Co. Ltd.

            23, UGF, Hamalya House, K.G. Marg,

             Connaught Place, New Delhi-110001.

 

            Also at:-

 

          11 & 12^th Floor, DLF Square Building,

          Jacaranda Marg, DLF, Phase-II,

            Gurgaon-122002

                                                                                    …………OPPOSITE PARTY

 

ORDER

H.M. VYAS - MEMBER

The complainant has filed the present complaint under section 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant is nominee in the policy of Late Smt. Kamla Devi having policy bearing no. 780003356 issued by OP. It is alleged that at the time of issuance of the policy the deceased Ms. Kamla Devi was duly medically examined by the OP and thereafter being fully satisfied about the medical condition of the Late Smt. Kamla Devi issued the policy to Ms. Kamla Devi who insured on 14/04/2010.

On 05/08/2010, Ms. Kamla Devi got expired and the complainant filed death claim application form to the OP alongwith all relevant documents including policy issued by OP. On 23/05/2011 the OP declined the death claim against the aforesaid policy for the reason of material information of non disclosure of cardiomyopathy by Late Smt, Kamla Devi, now the deceased.

Complainant made several requests to the OP but all in vain. On 16/09/2011, the complainant issued legal notice to the OP but OP neither replied to the legal notice nor compensated, hence this complaint.

After notice, OP filed written statement/version and denied all allegations leveled by the complainant.  It is stated that the repudiation was for the reason of suppression of material facts regarding the health by the insured, now Deceased Life Insured (DLI).  It is stated that she was admitted in Satyavadi Raja Harish Chander Hospital for treatment on various occasions and was suffering from Accelerated Hypertension , Cardiomyopathy prior to signing the proposal form . Hospital record of OPD is dated 10/03/2010 and on 30/7/2010 she was advised admission. The discharge summary and death certificate dated 05/08/2010 issued by hospital evidence the factum of preexisting decease. The proposal  form is dated 08/04/2010 and the insurance policy was issued on 14/04/2010 having sum assured of Rs. 5,00,000/- under the base plan premium of Rs. 15,500/- payable half yearly.

The parties filed evidence by way of affidavit. The complainant has also filed rejoinder to the written statement/version. Oral arguments were also addressed by the parties.

The main arguments and grounds to repudiate claim by the OP are that Late Smt, Kamla Devi (DLI) did not disclosed the actual health condition and the query regarding health conditions  were replied in negative by the insured. It is argued that the claim was rightly repudiated.

Reliance in this regard is also been made to catena of judgements of the Hon’ble National Commission. It is argued that the concealment of the material facts rendered the claim to be rejected and as such the repudiation of the claim was justified. The complaint, thus deserved dismissal as argued.

Per contra, It was argued on behalf of complainant that there was no concealment of facts by Late Smt. Kamla Devi at the time of filing the proposal form. It is argued that the claim  form was filled up by agent of the OP to whom all facts were clearly emphasized. There after the OP examined Smt, Kamla Devi (insured) and after having fully satisfied, issued the  insurance policy in her name.

We have considered the material placed before us and the submission of the parties.

The admitted facts emerging  from the record and the submission of the parties are that Smt. Kamla Devi filed proposal form on 08/04/2010. The OP issued the policy on 14/04/2010 after medical examination of the insured. She was admitted in Hospital on 03/08/2010 and died on 05/08/2010 and as per the death certificate. The ailment was mentioned as one year old Death Certificate.

It is settled law that the Insurance contract is based on trust between the parties. It is seen that on one hand the intending insured did not indicate hypertension etc. and on the other hand the OP Insurance company ignored to question/informed the ailment after medical examination and issued the insurance policy to Smt. Kamla Devi (DLI).

Both these facts lead us to conclude that there has been negligence on the part of the insured as well as the OP at relevant time. It is not conceivable that that OP was not aware of the  health conditions of the insured after medical examination nor is such pleadings by the OP. In such peculiar facts of the case it would be unjust to allow the OP to shirk its responsibility and liability to record about ailment which the intending insured was suffering at relevant time. The OP in its discretion could have rejected the application for insurance, but the OP opted  and issued the insurance policy.

In other words once the person in tends to be insured is medically examined and found to be suffering from any ailment /disease, the OP was well within its rights either to issue insurance policy and/or to deny the same.

In the instant case since the insured (DLI) died and that the policy was issued to her after medical examination, shifting the entire onus on the insured (now died) would tent a amount to shifting of responsibility by the OP and does not absolve the OP of its liabilities. In our considered view repudiation of claim in such circumstances is unjust.

In the light of above discussions holding contributory negligence on both the parties i.e. the complainant as well as the OP. we are considered view that ends of justice will meet by directing as under:-

1. OP to pay to the complainant a sum of Rs. 02,50,000/-( i.e. 50% of the sum assured) along with interest @ 9% p.a. from the date of filing of the present complaint i.e. 08/12/2011, till realization.
2. OP to pay to the complainant a sum of Rs. 15,000/- as compensation towards harassment, mental agony and pain including the cost of litigation.

  

The order shall be complied within 30 days of the receipt of the copy of this order.

A copy of this order be sent to each party free of cost by post as statutorily required.

Orders be also sent to www.confonet.nic.in.

File be consigned to record room.

Pronounced in open Forum on20/02/2020

 

      (ARUN KUMAR ARYA)

      PRESIDENT

(NIPUR CHANDNA)                                                                             (H M VYAS)

            MEMBER                                                                                        MEMBER