Haryana

Yamunanagar

CC/378/2011

Vinod Bala W/o Pawan Kumar - Complainant(s)

Versus

Oriental Bank Of commerce - Opp.Party(s)

Rajiv Bhardwaj

31 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 378 of 2011.

                                                                                          Date of institution: 21.04.2011 

                                                                                          Date of decision: 29.03.2017

 

Vinod Bala, aged about 54 years, wife of Shri Pawan Kumar, resident of VPO Gumthala Rao, Tehsil Jagadhri, District Yamuna Nagar through its Branch Manager.

…Complainant.

                                    Versus

 

1. Oriental Bank of Commerce, VPO Gumthala, Tehsil Jagadhri, District Yamuna Nagar through its Branch Manager.

 

2. Canara HSBC Oriental Bank of Commerce Life Insurance Co. Ltd., Centurm Plaza , B Tower, 5^th Floor, Sector 53, Opp. Sun City, Gurgaon-122002, through its Managing Director.

                                                                                                         ...Respondents

 

BEFORE:        SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:           Sh. Rajiv Bhardwaj, Advocate for complainant.

                        Sh. GC Khurana, Advocate for OP No.1.

                        Sh. Pardeep Rathore, Advocate for OP No.2.

 

ORDER (Ashok Kumar Garg, President)

 

1                      The present complaint has been filed by the complainant being widow and nominee of the deceased Shri Pawan Kumar under section 12 of the Consumer Protection Act 1986 amended upto date.

2.                     Brief facts of the present complaint, as alleged in the complaint, are that husband of the complainant Shri Pawan Kumar was having saving bank account with the respondent No.1 (hereinafter referred as OP No.1) bearing account No.03181131000071 and he got one Canara, HSBC Life Unit linked Whole Life Plan  for a sum insured of Rs.1,25,000/- of the OP No.2 Insurance Company from the OP No.1 which was for a term of 43 years and the premium was to be paid for 10 years, bearing proposal No.2000023459, policy No.0002083320 dated 05.02.2009 and maturity date05.02.2052. As per policy in question, if the policy holder expires during the tenure of 10 years, in that case, a sum of Rs.1,25,000/- will be paid as life insurance being sum assured along with fund value amount paid till that day. At the time of issuance of policy in question, the OP No.2 Insurance Company got conducted the medical of the husband of the complainant and after getting satisfied from all the report, the said policy was issued by the OP No.2 to the husband of the complainant. The husband of the complainant deposited 2 installments of Rs.25,000/- each i.e. deposited total sum of Rs.50,000/- being the premium for 2 years but unfortunately, on 24.07.2010, the husband of complainant expired due to ailment at Action Medical Institute, New Delhi. After the death of husband of the complainant Shri Pawan Kumar, the complainant being nominee under the policy in question, lodged her claim with the OP No.2 Insurance Company and supplied all the relevant documents i.e. medical treatment record, policy details etc. with the OP No.2 insurance Company and completed all the necessary formalities as per their rules and regulations and as per their letter dated 11.01.2011. But, the official of the OP No.2 insurance Company kept on putting off the matter of one pretext or the other and till today only the fund value of amounting Rs.50,000/- deposited with the OP has been paid and amount of sum assured of death of the husband of the complainants has not been paid, despite so many requests which constitutes deficiency in service or unfair trade practice on the part of the OP No.2 Insurance company and lastly it has been prayed that the OP No.2 Insurance Company be directed to pay a sum of Rs.1,25,000/- i.e. sum assured on account of death of her husband along with interest and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OP No.1 Bank appeared and filed its written statement taking some preliminary objection such as complaint is not maintainable qua the OP No.1 as there was no deficiency in service or unfair trade practice on the part of the OP No.1; this Forum has got no jurisdiction to entertain and hear the present complaint and on merit it has been admitted that complainant was having saving bank account with OP No.1 Bank and further it has also been admitted that deceased Pawan Kumar took the policy of Insurance company through this Bank account. Rest contents of the complaint were denied being wrong, incorrect and a matter of record. Lastly prayed for dismissal of the complaint qua the OP No.1.

4.                     OP No.2 also appeared and filed its written statement taking some preliminary objection such as the present complaint is not maintainable under the Consumer Protection Act and is liable to be dismissed because deceased/insured Pawan Kumar was suffering from Coronary Artery Disease since year 2000 i.e. prior to submitting the proposal form dated 05.01.2009 for policy in question. The said fact was material for this opposite party to underwrite the risk on the life of life assured and same was not disclosed by late Mr. Pawan Kumar in his proposal for, therefore, there has been violation of doctrine of uberrina fide i.e. utmost good faith. The deceased/life assured at the time of proposal stage did not disclose and concealed his pre4 existing disease. Thus, the life assured had obtained policy by making a wrong declaration and had concealed material fact with the OP No.2 and on merit it has been submitted that in the terms and conditions of the policy which was clearly provided under clause 2.1.1 that if the death of life assured occurs on or after the risk commencement date then the company shall be liable to pay higher of sum assured under the policy and the policy holders’ fund value. It has been further submitted that insurance underwriting is done as per statements declared by the proposer in the proposal form i.e. it is assumed that the data provided by the proposer is correct pertaining to his personal details, personal habit, medical history, life cover proposed and other answers provided in the proposal form etc. Relying on such information only medical test were conducted on the deceased/life assured i.e. “category 2”, medical examination was done that is includes MER, FBS, Lipid Profile and RUA were conducted during medical examination of the deceased life assured. Thereafter, on the basis of medical test carried out, the OP proceed to issue the policy. It is further submitted that had the life assured disclosed his true medical condition in the proposal including having undergone treatment for Coronary Artery Disease (CAD) then the OP would have declined the Insurance cover to the life assured. The details furnished by the life assured regarding his health, forms the basis of the contract of insurance. Since, details as to the health and medical conditions of the life to be assured under the policy are material consideration for a life insurance company to underwrite the risk on the life being assured. As per section 45 of the insurance Act, 1938, if the policy Holder suppresses any material fact in a fraudulent manner and he also knew that such statement was false or he had suppressed facts which were material to disclose at the time of making proposal, then as a result the insurance company can repudiate the contract of Insurance. Further as per clause 18.7 forfeiture of the terms and conditions of Canara HSBE Oriental Bank of Commerce Life Whole life plan clearly lays down that in case of any non disclosure, in relation to Section 45 of the Insurance Act, the company is entitled to terminate the policy and may also forfeit the fund value.

            In the present case, the actual facts of the case are that on receiving the intimation regarding the death of Shri Pawan Kumar,  Fund value amounting Rs.52065.96/- vide cheque No.529317 dated 20.08.2010 drawn on OBC along with letter dated 23.08.2010 was sent to the complainant. The complainant had been requested to provide service documents for the timely processing of the claim by the OP No.2 Insurance Company. Various replies and reminders, letter to this effect were sent to the claimant vide letter dated 23.09.2010 letter dated 21.10.2010 and 20.12.2010 but no effect, however, in response of letter dated 20.12.2010, the OP Insurance Company received certain documents from the complainant but certain documents i.e. critical documents were not still provided so the complainant was again requested vide letter dated 11.01.2011  to provide the same. It has been specifically denied that in the letter dated 11.01.2011, it was assured by the OP Insurance Company i.e. complainant will get her claim on account of death of her husband. The claim of the complainant has been repudiated by the OPs Insurance Company on the ground of non disclosure of pre existing medical disease i.e. CAD vide dated 11.03.2011 as on the investigation in respect of death claim of the deceased assured from the documents gathered, it was conclusively established that the life assured was suffering from Coronary Artery disease since year 2000 prior to his signing of the proposal forum for the policy. In this regard, reliance is placed on the “In- patient History and Physical record of Sri Balaji Action Medical Institute, New Delhi dated 22.07.2010 and treating hospital certificate signed by Shri Anurag Sham Lal Garg wherein it has been clearly mentioned that the life assured was suffering from CAD since year, 2000. Lastly prayed for dismissal of the complaint as there is no deficiency in service on the part of OP No.2.  

5.                     In support of his case, learned counsel for the complainant tendered into evidence her affidavit of the complainant as Annexure CW/A, letter to Vinod Bala as dated 23.08.2010 as Annexure C-1 and C-2, photocopy of receipt Sr. N.2322 as Annexure C-3,  Letter to Branch Manager dated 07.08.2010 as Annexure C-4, photocopy of first premium receipt as Annexure C-5, photocopy of death certificate as Annexure C-6, photocopy of letter to Ms. Vinod Bala dated 11.01.2011 as Annexure C-7 and C-8, photocopy of letter to Ms. Vinod Bala as Annexure C-9 and C-10, photocopy of proposal form as Annexure C-11 and closed the evidence on behalf of complainant.

6.                     On the other hand, counsel for OP No.1 closed the evidence on behalf of OP No.1 without tendering any evidence.

7.                     On the other hand, OP No.2, tendered into evidence affidavit of Shri Amit Kumar, Centre Manager, Chandigarh Canara HSBC Oriental Bank of Commerce Life Insurance Company Limited as Annexure RW2/1, photocopy of terms and condition as Annexure-A, photocopy of letter to Ms. Vinod Bala dated 23.09.2010 as Annexure-B, photocopy of letter to Ms. Vinod Bala dated 11.01.2011 as Annexure-C, photocopy of letter to Ms. Vinod Bala dated 11.03.2011 as Annexure-D, photocopy of Hospital Card as Annexure-E, photocopy of death summary as Annexure-F, photocopy of proposal Form as Annexure-G and closed the evidence on behalf of OP No. 2. 

8.                     We have heard the learned counsels of both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

9.                     It is not disputed that husband of the complainant Sh. Pawan Kumar got one Canara HSBC Life Unit Linked Whole Life Plan vide policy bearing No. 0002083320 dated 05.02.2009 Annexure CA for a period of 10 years and the sum insured was Rs. 1,25,000/- of the OP No.1 Insurance Company through Op No.1. It is also not disputed that husband of the complainant deposited two (2) installments of Rs. 25,000/- each i.e. Rs. 50,000/- being the premium for two (2) years in the year 2009 and 2010. It is also not disputed that the husband of the complainant expired on 24.07.2010 which is duly evident from the death certificate (Annexure C-6) in Sri Balaji Action Medical Institute, New Delhi. It is also not disputed that after the death of husband of the complainant, the OP No. 2 Insurance Company has paid fund value of amounting to Rs. 52,065.96 to the complainant which is duly evident from the copy of letter Annexure C-1.

10.                   The only version of the OP No.2 Insurance Company is that the husband of the complainant was suffering from Coronary Artery Disease since the year 2000 as mentioned in the treatment record of Sri Balaji Action Medical Institute, New Delhi Annexure E as well as record of Gaba Hospital placed on file. Learned counsel for Op No.2 draw our attention towards the proposal form Annexure C-11/Annexure-G and argued that the husband of complainant gave the answer of the question No.5(L) and 6 as “No” whereas from the medical record and treating hospital certificate received from Sri Balaji Action Medical Institute, New Delhi it was noted that the life assured had suffered from Coronary Artery Disease prior to policy proposal. Learned counsel for the OPs referred the case law titled as Daya Kaur Versu Life Insurance Corporation of India & Another, 2011 (1) CLT Page 180, Kajol through its Guardian Smt. Chander Kanta Versus Life Insurance Corporation of India Division Delhi, Division II, 2011 (2) CPR page 40 (NC), Life Insurance Corporation of India Versus Piari Devi and Others, 2008(2) CLT page 192, LIC of India Versus Kulwant Kaur, 2012(2) CLT page 591 and Shakuntala Devi Kashayap Versus Life Insurance Corporation of India & Another, 2011(2) CLT page 644.

11.                   On the other hand, learned counsel for the complainant argued at length that genuine claim of the complainant has been wrongly and illegally repudiated by the OP No.2 Insurance Company on the flimsy ground whereas no such cogent evidence has been placed on file to prove that the deceased Pawan Kumar was suffering from any disease since the year 2000, as alleged in the written statement. Learned counsel for the complainant further argued that mere mentioning in the medical record under the head of previous history of Gaba Hospital and Sri Balaji Action Medical Institute, New Delhi, it cannot be presumed that the deceased was suffering from Coronary Artery Disease (CAD) since 2000. Learned counsel for the complainant further argued that no affidavit has been placed on file of the treating doctor of Gaba Hospital or Sri Balaji Medical Institute, New Delhi. Lastly prayed for acceptance of complaint.

12.                   After hearing both the parties, we are of the considered view that there is a deficiency in service and unfair trade practice on the part of OP No.2 Insurance Company as the OP No.2 Insurance Company has totally failed to place on file any cogent evidence or any medical record in respect of any disease prior to taking the insurance policy in question. The OP No.2 insurance Company only repudiated the claim on the basis of history mentioned by the doctors of the Gaba Hospital as well as Sri Balaji Action Medical Institute, New Delhi whereas there is no record on the file relating to any pre-existing disease. Further, we have also perused the medical record of Sri Balaji Action Medical Institute, New Delhi (Annexure E) wherein it has been mentioned that the patient Pawan Kumar was admitted on account of severe pain abdomen from last 7-10 days and distension of abdomen 3-4 days, block coloured stools 1-2 times in last 7 days, shortness of breath since morning. Meaning thereby that the patient Pawan Kumar was not admitted on account of any Coronary Artery Disease (CAD). Even, in the record of Gaba Hospita Patient Pawan Kumar was admitted on 16.07.2010 with the complaint of pain and distension of abdomen since last night and constipation for which he was referred to Sri Balajit Action Medical Institute, New Delhi. So, after going through the records, it is clear that deceased was not admitted in the Gaba Hospital and Sri Balaji Action Medical Institute for any heart disease. Furthermore, the history of Coronary Artery Disease has been shown pertaining to the year 2000 whereas the complainant was admitted and died in the year 2010 i.e. after a gap of near about 10 years. The OP No.2 Insurance Company has totally failed to prove that there was any nexus between the disease due to which he died and deceased was diagnosed in the year 2000 as mentioned in the history of medical treatment record. In case titled as Arun Kumar Versus New India Assurance Co. Ltd. & others, 2016(4) CPR 33 (NC) it has been held that “

Consumer Protection Act, 1986- Sections 15, 17, 19 and 21- Insurance- Mediclaim Policy-Repudiation of death claim on ground of suppression of pre-existing disease- Opinion given by panel doctors is based on presumption only that complainant would have been suffering from degenerative joint disease for last 4 to 5 years- Said presumption has not been supported by any medical evidence or record which may indicate that complainant withheld any material fact about his health condition from knowledge of Insurance Company while making application for getting policy- Complainant has been taking insurance policy since year 1997- It was bounden duty of Insurance Company to have verified information given in proposal form by obtaining suitable expert opinion- Discharge summary of Hospital stated that complainant had difficulty in walking for a long time and history of borderline hyper tension but not on any medication- District Forum rightly observed that non- disclosure of such conditions in proposal form cannot be blown out of proportion so as to disentitle complainant from claim amount from Insurance Company- Claim has been wrongly repudiated by Insurance Company on ground of non-disclosure of information about health conditions in proposal form- Impugned order passed by State Commission set aside and order passed by District Forum restored and Insurance Company directed to make payment to complainant”.

                        Further, the same view has been held in case titled as Sushil Kumar Jain Verus United India Insurance Co. Ltd. 2012(1) CPC page 463 NC, Bajaj Allianz Life Insurance Co. Ltd. and others Versus Raj Kumar (Mrs), 2014 (3) CPC page 24 NC wherein it has been held that death of insured during subsistence of policy- Claim was wrongly repudiated with the plea that insured/deceased had concealed the pre-existing disease of blood cancer- State Commission rightly granted relief as repudiation of claim was not justified.

13.                   In the instant case also, the OP No.2 Insurance Company has totally failed to place on file any medical record about the pre-existing disease before taking the insurance policy in question and even further has also failed to place on file any affidavit of the treating doctor that the deceased was having any previous history of any ailment. Mere mentioning that the deceased was having history of CAD in the year 2000 is not sufficient to prove that the deceased died due to any pre-existing disease from which he was suffering from the last 9 years.  The case law referred by the counsel for the OP No.2 Insurance Company is not disputed but not helpful in the present.

14.                   Resultantly, in the circumstances noted above, we partly allow the complaint of complainant and direct the OP No.2 Insurance Company to pay sum insured of Rs. 1,25,000/- to the complainant within a period of 30 days failing which OP No.2 Insurance Company will also liable to pay interest at the rate of 7% per annum from the date of filing of complaint till its realization. Parties are left to bear their own costs. Copies of this order be supplied to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Pronounced in open court: 29.03.2017.

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

                                                                                          DCDRF Yamuna Nagar

 

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER