STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
First Appeal No.462 of 2018
Date of Institution: 16.04.2018
Date of final hearing: 24.04.2023
Date of pronouncement: 04.05.2023
Exide Life Insurance Company Limited, Branch Office, Near Sanjay Chowk, Panipat (HR) through its Authorized Signatory Chidanand P Manager (Legal), available at Registered Office, Exide Life Insurance Company (formally known as ING Vysya Life Insurance Company Limited), 3rd Floor, JP Techno Park, 3/1 Milar Road, Bangaluru-560001.
…..Appellant
Versus
Neesa aged about 38 years w/o Late Sh. Rajesh Singh, resident of village Kaet (Kaith), P.O. & Tehsil Israna, District Panipat.
…..Respondent
CORAM: Naresh Katyal, Judicial Member
Present:- Sh. Inderjit Singh, Advocate for the appellant.
Sh. Govind Chauhan, proxy counsel for Sh. Ankit Aggarwal, counsel for the respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 26 days in filing of this appeal stands condoned, for the reasons stated in the application for condonation of delay.
2. Exide Life Insurance Company Limited has been non-suited vide impugned order dated 02.02.2018 passed by District Consumer Disputes Redressal Forum, Panipat (In short “District Commission”). Complaint case No.100 of 2017 filed by Neesa w/o Late Sh. Rajesh Singh has been allowed. Legality of this order dated 02.02.2018 has been questioned in this appeal.
3. In brief, Sh. Rajesh Singh-husband of complainant got himself insured with OP/appellant vide policy No.03041535 dated 20.01.2015 and paid regular premium. He expired on 10.02.2015. Complainant submitted documents: ration card, voter card, death certificate and original insurance policy with OP who told her that claim will be passed in 1-2 months, but ultimately insurer refused to give claim amount to her. As she was nominee of policy holder, she served legal notice on 20.02.2017 through counsel but did not receive reply. By alleging deficiency in service of OP and being physically, financially and mentally harassed by OP; she filed complaint with prayer that OP be directed to pay Rs.3,20,000/- regarding death of her husband with 18% interest from the date of filing of complaint till payment and Rs.20,000/- for mental loss and Rs.11,000/- for litigation expenses.
4. OP raised contest. In defence, it is pleaded that complaint is false, malicious and incorrect, filed with mala-fide intention and is abuse of process of law. Life assured (Sh. Rajesh Singh) filled proposal form dated 20.01.2015 and sum assured under policy was Rs.2,93,763/- for tenure of 30 years. Premium opted was Rs.14,600/- semi-annually with paying term of 15 years. Based on proposal form (Ex. R-1); OP issued insurance policy (Ex. R-2) which commenced from 21.01.2015. Life assured gave his answer as ‘NO’ with regard to relevant questions No. 70, 72 & 75 to 77 as mentioned in Para No. 5 of written statement. Based on information and declaration provided by life assured in proposal form; OP issued insurance policy. It is admitted that OP received death intimation-cum-claim form from Neesa w/o deceased life assured who informed that life assured died on 10.02.2015. It is pleaded that death of life assured took place within 20 days from date of commencement of policy (21.01.2015), and internal investigation was conducted. During investigation; OP collected crucial medical record and information which confirmed that: Life Assured had pre-existing critical illness of HIV + prior to submission of proposal form. Further, he was also a cancer patient and died as cancer busted out and he was treated in Chandigarh Hospital. Ex.R-3 is the investigation report. OP has annexed medical record as Ex.R-4 which reads that “Following are the documentary evidences to substantiate the pre-existence of the illness HIV + of the LA; medical record of Manasarover Multi Super Speciality Hospital, Rohtak ref. No. 781/13 DOA dated 24.12.2013 & DO discharge 09-01-2014 clearly states that the LA (life assured) is HIV + patient and is under treatment ART Government Hospital”. Life assured had pre-existence of life-threatening critical health problems (HIV + and Cancer) and consequently undergone treatment before submitting proposal form dated 20.01.2015 for life insurance with OP. He has intentionally hidden this fact in proposal form with ulterior motive of getting gain to his nominee wife, through death claim. It is pleaded that had the life assured revealed critical material information of his past health history, then OP would not have accepted the proposal form and issued the insurance policy. In issuing the policy, OP relied on accuracy and completeness of information provided by life assured and other declarations and statements made or as may be made hereafter, by policy holder. In case, of fraud or misrepresentation; the policy shall be cancelled immediately by paying the surrender value, subject to fraud or misrepresentation being established by OP in accordance with Section 45 of the Insurance Act. It is pleaded that OP has rightly repudiated the claim of complainant with above cited reasons vide letter dated 23.12.2015 (Ex. R-5). OP has not committed any deficiency in service or unfair trade practice. Complainant is not legally entitled to payment of sum assured under policy. Complainant want to wriggle out of terms and conditions of concluded contract and intentionally twisted the facts to the core and is trying to misrepresent by alleged deficiency in service of OP. On these pleas, OP has prayed for dismissal of complaint.
5. Parties to this lis led their respective evidence before learned District Commission. Complainant-Neesa furnish her duly sworn affidavit Ex.CW-1/A towards affirmative statement on oath and relied upon documents viz. Ex.C-1 to Ex.C-7 and closed her evidence on 01.08.2017. Per Contra, OP relied upon affidavit of Sh. Chidanand P, Manager (Legal) as Ex.RW-1/A and relied upon documents Ex.R-1 to Ex.R-5 and its counsel closed evidence through his statement dated 23.10.2017.
6. After critically and subjectively analyzing the evidence, as adduced; learned District Commission, Panipat vide order dated 02.02.2018 has allowed the complaint, thereby directing OP to make payment of sum assured under policy within 30 days from date of receipt of order, failing which amount will carry interest @9% from date of filing of complaint till its realization. Complainant is also awarded Rs.4400/- for mental harassment and litigation expenses.
7. Feeling aggrieved therefrom, this appeal has preferred by insurer/OP-appellant.
8. In the proceedings of this appeal written submissions were filed by both the parties to this appeal, which has been perused.
9. As per written submissions of insurer/appellant; learned District Commission has grossly erred in law while not looking at the fact that complainant (Neesa w/o life assured) has suppressed true and correct facts in her complaint that her late husband was actually suffering from critical illness of HIV + prior to submission of proposal form on 20.01.2015. He was also suffering from brain cancer and died as cancer busted. Substantive medical record in this regard was produced by appellant/insurer along with its investigation report. Non-disclosure of previous ailments i.e. HIV + and brain cancer was material for issuance of policy and these ought to have been disclosed by life assured. By not doing so; proposer mislead the appellant and got insurance cover on 21.01.2015. If deceased had disclosed his previous ailments then appellant would not have issued insurance policy. Ex.R-4 is Medical record of Mansarovar Hospital, Rohtak in the shape of certificate of Dr. B.K. Goyal, wherein life assured’s date of admission was 24.12.2013 and date of his discharge is stated as 09.01.2014. In this certificate (Ex.R-4); Dr. B.K. Goyal has specifically mentioned that Rajesh was brought in hospital with left bony defect. He is HIV + patient and under treatment of Govt. Hospital-PGIMS Rohtak. Learned District Commission has committed illegality while ignoring this medical record simply on the ground that affidavit of doctor (Dr. B.K. Goyal) has not been produced. It is also mentioned in written submission that contract of insurance is based upon principle of utmost good faith and deceased life assured was duty bound to disclose all facts within his knowledge in response to queries made in proposal form without holding any information. Complaint has been filed with mala fide intention. It is prayed in written submissions that impugned order deserves to be set aside. In written submissions it is also asserted that application for additional evidence has been filed and same is pending.
10. Controverting the written submissions; learned counsel for respondent/complainant in written submissions has asserted that issuance of policy on 21.01.2015 and death of life assured on 10.02.2015 is not disputed. Installments paid under policy were also not disputed. Dispute is: whether husband of complainant/respondent was suffering from any pre-existing ailments prior to obtaining insurance policy or not? It has been further asserted in written submissions that this dispute has been correctly decided by learned District Commission and application for additional evidence filed by appellant/insurer is not maintainable, because court is not meant for collecting the evidence of either of the party. Application for additional evidence has been filed by appellant, only to fill up the lacunas of its case. Appellant has not given any reasoning or explanation why it had not produced documents before learned District Commission. It is mentioned that stand of appellant that husband of complainant was suffering from HIV + or cancer at the time of obtaining policy has not proved and rightly held as such as they had not produced any single authenticate document. Impugned order dated 03.02.2018 is well reasoned and learned District Commission has appreciated all material facts on record.
11. At the very outset it would be apt to borne in mine the ratio of law laid down by Hon’ble Apex Court in case titled as “Anil Rishi vs. Gurbax Singh”, 2006 (2) PLR 775. Therein, Hon'ble Apex Court has held that “there is an essential distinction between the concept 'burden of proof and onus of proof'. Burden of proof lay upon a person, who has to prove the fact and which never shifts, whereas, onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. The elementary rule of Section 101 of Evidence Act is inflexible. In terms of Section 102 of the Evidence Act; the initial burden is always on plaintiff. If the plaintiff discharges that onus and makes out a case, which entitles him to relief, then onus shifts upon the defendant to prove those circumstances, which would dis-entitle the plaintiff to the same.”
12. In light of above pronouncement and on subjectively perusing of written submissions of rival parties; this Commission is of view that: it is admitted that husband of complainant (Sh. Rajesh Singh) filled proposal from on 20.01.2015 (Ex.R-1). It is also admitted that policy (Ex.R-2) was issued by appellant which became operative from 21.01.2015. Life assured died on 10.02.2015 i.e. in short proximity of time reckoning from date of operation of his insurance policy. While non-suiting the appellant/insurer, learned District Commission observed that insurer’s investigator in his report Ex.R-3 has mentioned that: he enquired from Anganwari Worker Smt. Sudesh Rani who told that life assured died due to cancer. Investigator has also mentioned that Smt. Sudesh Rani has provided her statement in this regard. Investigator also enquired from ANM Jyoti who disclosed that life assured died due to cancer. Statements of these officials (Sudesh Rani and Jyoti) have not been placed on record with report of investigator. Affidavit of investigator has also not been placed on record by OP and as such District Commission has observed in impugned order dated 02.02.2018 that no reliance can be placed on report of investigator (Ex.C-3). Still further it has been observed that affidavit of doctor has not been placed on record.
13. In opinion of this Commission: the reasonings quoted by learned District Commission in its order dated 02.02.2018 are legally not sustainable. Reason is obvious: admittedly life assured had filled proposal form (Ex.R-1) on 20.01.2015 and on very next day i.e. on 21.01.2015 insurance policy (Ex.R-2) got light of its day. Life assured expired on 10.02.2015. The short duration i.e. 20 days for which the policy remained effective during the life time of life assured, is certainly significant circumstance. Ailment of life assured, being suffering from HIV + as per doctor’s certificate Ex.R-4 was pre-existing even on 24.12.2013 when life assured was hospitalized in Mansarover Multi Super Specialty Hospital at Rohtak and discharged on 09.01.2014. Proposal form was filled by him on 20.01.2015 i.e. more than one year after of his discharge. Hence, once pre-existing aliment of being HIV + was in knowledge of life assured at every time and also at the time when he filled proposal form, then why he concealed and suppressed this fact while filling proposal form is a mysterious circumstance which, ex-facie projects his mens-rea to obtain life insurance policy in order to secure wrongful gains by concealing material facts. In opinion of this Commission, learned District Commission should have critically analyzed the controversy on this angle but failed which has led to passing an unsustainable order.
14. Pre-existing disease of life assured, were so critical that same had enormous ramification on life span of life assured. Besides being suffering from HIV + he was also a patient of brain cancer and died due to busting of cancer. This is express stand of appellant/insurer which is fortified by report (Ex.R-3) of its investigator. Notably, deceased life assured was suffering from two pre-existing critical ailments i.e. HIV + and brain cancer. These are the ailments which obviously did not exist suddenly. Naturally these are ailments which carry significant history. Hence, it cannot be said that these ailments had occurred to life assured, after filling up of proposal form on 20.01.2015 and issuance of policy to him on 21.01.2015. In wake of above, it is observed that long tenure of pre-existing ailments might had promoted deceased life assured to conceal the same while filing proposal form on 20.01.2015 and give negative answer (NO) to specific questions Nos. 70, 72 & 75 to 77. Needless to say that: complainant (nominee of life assured) has not stated a word in entire text of her complaint, as to how her husband (life assured) had died. Likewise, her duly sworn affidavits Ex.CW-1/A sans such plea. Contrary thereto; duly sworn affidavit of Manager (Legal) of OP so filed in support of his affirmative testimony and reliance placed upon documents Ex.R-1 to R-5 are very material and this quality evidence which project that OP has brought on record all significant circumstances which disentitles the complainant to reliefs prayed for by her. Hence, ratio of law laid down by Hon’ble Apex Court in Anil Rishi’s case (supra) is attracted which would non-suit the complainant. In this view of matter, repudiation by insurer of the death claim, sought by complainant qua policy No. 03014315 which was in the name of her husband late Rajesh Singh through its (insurer’s) letter Annexure R-5 is factually and legally justified. This repudiation by appellant naturally runs in consonance to legal implications flowing from insurance policy, consequent to non-disclosure of material facts regarding pre-existing ailments by life assured.
15. It is well settled that proceedings before District Commission are summary in nature. This would mean that strict rule of law regarding obtaining evidence is not applicable. In this case, parties have tendered their duly sworn affidavits towards their affirmative statement on oath and relied upon their respective documents so produced by them. By not considering the fact that complainant’s husband had mislead the appellant/insurer by withholding important information regarding his pre-existing ailments which has significant bearings to the issuance of policy to him; impugned order dated 02.02.2018 passed by District Commission is found faulted at legal pedestal as learned District Commission has committed illegality by not looking and analyzing controversy on this angle.
16. Matter does not end. Any litigant who approaches the court of law with tainted hands and is guilty of suppression of material facts is not entitled to any equitable relief. Courts of law, over the centuries have frowned upon such litigants who tend to suppress/withhold material information from court. There can be no exception, so far as present complaint originally filed by complainant is concerned. Once the very foundation of filling proposal form on 20.01.2015 by life assured Rajesh Singh is based upon suppression of material facts by him regarding his pre-existing ailments, then, insurance policy issued to him on 21.01.2015 would stand traumatized. For reasons recorded above this appeal merits acceptance. It is accordingly allowed. Impugned order dated 02.02.2018 passed by learned District Commission, Panipat is set aside and complaint filed by complainant Neesa w/o deceased life assured is dismissed.
17. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
18. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment. There is no new facts brought on record and evidence already led before District Commission would suffice the decision of this appeal.
19. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
20. File be consigned to record room.
Date of pronouncement: 04th May, 2023
Naresh Katyal Judicial Member
Addl. Bench-II
