Delhi

StateCommission

CC/08/159

SAROJINI DATTA - Complainant(s)

Versus

ORIENTAL INSURANCE COMPANY LIMITED - Opp.Party(s)

14 Sep 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing: 14.09.2018

                                                                                                              

                                                                   Date of decision:28.09.2018

 

 

Complaint No. 159/2008

 

IN THE MATTER OF:

 

Mrs. Sarojini Datta,

Wd/o Capt. Dinesh Datta

E-127 Sector 21

Noida, U.P.                                                           ….Complainant   

 

VERSUS

 

Oriental Insurance Co. Ltd.,

A company registered under the

Companies Act, having its Registered

 

Head Office at:

Oriental House,

A-25/27 Asaf Ali Road New Delhi-110002

 

Branch Office at:

CBO IV Guindy

Race View Tower-II Floor

71 Anna Salai

•  

Chennai-600032                                                            …Opposite Parties

 

HON’BLE  SH. O.P. GUPTA, MEMBER(JUDICIAL)

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER

 

 

1.   Whether reporters of local newspaper be allowed to see the judgment?             Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

 

Present:       Sh. Alok Mahajan, Counsel for the complainant’

                   Sh. A.K. Soni with Sh. Pawan Vashitha, Counsel for the OPs

                  

PER:           ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           Point for adjudication in this complaint filed before this Commission under Section 17 of the Consumer Protection Act 1986 (the Act) by Smt. Sarojini Datta, resident of NOIDA, U.P. for short complainant, against the Oriental Insurance Co. Ltd., hereinafter referred to as OPs, is whether the OPs repudiating the claim preferred by the complainant have been deficient in rendering service to her.
2.           The facts of the case necessary for the adjudication of the complaint are these.
3.           Captain Dinesh Datta, since deceased, who was working as a Commercial Pilot with Air Sahara who had flown the last flight of Air Sahara on 24.03.2006 and who passed away on 23.05.2007 at the age of 56yrs, had obtained during his life time Aircrew loss of License-Individual Policy from the OPs for the period from 17.03.2006 to 16.03.2007 at the premium of Rs. 27,552/- and the sum assured was Rs. 40,00,000/-. In terms of the said policy, in the event of the insured, during the period of insurance, suffering any bodily injury or suffering any illness any time whether during or after the period of insurance then compensation will be paid to the person insured as specified in the policy, as follows:

 

1. – In the case of incapacity causing permanent total Disablement otherwise than due directly or indirectly to psychosis, psychoneurosis or epilepsy, after deduction of any payment made under item 3 or 4 or provision iii, the balance of One hundred per centum of the capital sum insured.

 

1. – In the case of Temporary Total Disablement, otherwise than due directly or indirectly to psychosis, psychoneurosis or epilepsy at the rate per calendar month for not more than twelve months or up to the prior death or Permanent Total Disablement of the person insured of Two per centum of the Capital sum assured.  

 

Definition

Permanent Total Disablement: Any disablement due to personal injury or to illness, disease or disability including natural deterioration of the person insured which entirely prevents him from attending to the occupation and which appears beyond reasonable doubt to be of permanent nature.

 

Temporary Total disablement: Any disablement due to personal injury or to illness, disease or disability including natural deterioration of the person insured which is of a temporary nature and entirely prevents him from attending to the occupation.

4.           Condition No. 5 of the policy lays down as under:

 

“No compensation shall be payable in the first 90 days of the incapacity consequently or in the aggregate in any one year of years.”

 

Condition No. 6 of the policy posits as under:

 

“Policy does not cover incapacity directly or indirectly from any personal injury, illness, disease or disability including natural deterioration prior to the inception of this insurance, except where such personal injury, illness, disease or disability including natural deterioration has been declared in writing to the company and accepted by them without any additional exclusion.”

 

5.           So far so good.
6.           Captain Datta observing some blood in the urine was admitted to Lions kidney Hospital and Uzology Research Institute New Delhi on 27.03.2006 when he was diagnosed with papillary carcinoma of left kidney. He was accordingly operated upon for kidney removal. This factum about the ailment of the Captain and later operation done in the Hospital was intimated to the Insurance Company. On 05.04.2007 Captain was permanently declared unfit for flying by the Civil Aviation Department and a certificate to this effect was also issued. The permanent disability from flying having been issued, the Captain addressed a communication to the OPs requesting for the disbursement of the total sum insured under the policy. In the meanwhile the Captain passed away on 23.05.2007. The Insurance Company was also informed of the demise. Additionally as stated above, the complainant is also entitled to and eligible for 2% of the Capital sum assured as temporary total disablement which means Rs. 80,000/- per month. No amount was paid by the OPs despite the complainant having met the officials of the OP both at Delhi and Chennai and all her efforts done to get the amount, either 2% of the total sum assured as temporary total disablement or total disbursement of the sum assured, namely, Rs. 40,00,000/-, proved an exercise in futility, leading to filing of this Complaint before this Commission, praying for a direction to the OPs to pay to the complainant the amount of Rs. 51,03,000/- plus cost of the proceedings, future interest till the date of payment and such other further relief as may be ordered and deemed fit by this Commission in the facts and circumstances of the case.
7.           OPs were noticed and in response thereto they have filed reply resisting the complaint on the ground that the OPs are not liable to pay any amount to the complainant on the ground of the concealment of material fact relating to pre-existing disease of the Captain at the time of obtaining the policy. The Captain while filing the proposal form was fully aware of the disease he was suffering from and concealing it therefrom is a justifiable ground to repudiate the claim. The OPs have averred based on the report dated 12.03.2006 of the Transmed Diagnostic Centre at NOIDA that the deceased was fully aware of the pre-existing disease and he had deliberately concealed the facts regarding his hospitalisation for ten days to undergo an operation prior to 27.03.2006 which fact would be evident from the discharge summary of Lions Kidney Hospital and Uzology Research Institute, New Delhi. Captain Datta was hospitalized even before for treatment of back ache. He had also undergone one uzological ultrasound from transmed diagnostic at NOIDA leading to an inevitable conclusion that Captain Datta was experiencing heamaturia on and off even before 12.03.2006 and had also history of carcinoma of blooded operated and showing evidence of post voiding distension of left renal calyces with filing of the left renal pelvis by a homogeneous medium echogencity lescion with ill defined margins and approx size 2.4cm centrally with normal calibre of proxima left ureler. It is also stated in the report under “impression” as under:

 

“Lt. renal pelvis medium echogencity mass lesion with fullness of calyces left kidney to be further evaluated on IVP and CT for clot/SOL in left renal pelvis.

 

8.           The complainant has filed her rejoinder and evidence by way of affidavit rebutting the contentions raised by the OPs and reiterating their averments contained in the complaint. Both sides have filed their written arguments. The matter was listed before us for final hearing on 14.09.2018 when the counsel for both sides appeared and advanced their arguments. We have perused the records of the case and given a careful consideration to the subject matter.
9.           Point for consideration is whether the OPs repudiating the claim preferred by the complainant, on the ground of concealment of material fact relating to pre-existing disease was justified.
10.           In the first instance we may advert to the repudiation of the claim done by the OPs. This was done by the OPs relying on the clause/ condition 5, stating no compensation shall be payable in the first 90 days of the incapacity consecutively or in the aggregate in any one year and clause/condition 6, stating that the policy does not cover incapacity directly or indirectly from any personal injury, illness disease or disability including natural deterioration prior to the inception of this insurance, except where such personal injury, illness, disease or disability including natural deterioration has been declared in writing to the company and accepted by them without any additional exclusion in terms of their letter dated 25.06.2008 addressed to the complainant.
11. Basic thrust of the argument of the OP is, as emphasised in the written statement, that the amount is not payable owing to the concealment of the material fact about the pre-existing ailment of Captain Datta. We have scrutinised and analysed the terms of the policy and we are convinced that once there exists concealment of a fact relating to pre-existing disease and the treatment done is not explicitly declared by the insured in the proposal forum, which fact indisputably is material, the insurer would be within their competence to negate the claim and while doing so, the insurer would not suffer from any guilty and their action would not suffer from any infirmity.
12. Coming back to the fact of the case, captain Datta, the insured sinee deceased was fully aware, rather undergoing the treatment and despite that not indicating that in the proposal form at the time of obtaining the policy, is certainly guilty of suppressing the material fact in which case the repudiation of the claim would not suffer from any infirmity.
13. The Hon’ble Supreme Court of India in the matter of Satwant Kaur Sandhu vs. New India Assurance Company Ltd. reported in IV [2009] CPJ 8 (SC) is pleased to hold as under:

 

The upshot of the entire discussion is that in a Contract of Insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a "material fact". If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasise that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a Contract of Insurance.

22.1. Judged from any angle, we have no hesitation in coming to the conclusion that the statement made by the insured in the proposal form as to the state of his health was palpably untrue to his knowledge. There was clear suppression of material facts in regard to the health of the insured and, therefore, the respondent - insurer was fully justified in repudiating the insurance contract. We do not find any substance in the contention of learned counsel for the appellant that reliance could not be placed on the certificate obtained by the respondent from the hospital, where the insured was treated".

 

14. The Hon’ble NCDRC in the matter of Life Insurance Corporation of India Vs. Santosh Devi as reported in IV[2014] CPJ 139 (NC) is pleased to hold as under:

 

Since the mis-representation/suppression of fact related personally to the insured, it cannot be said that it was a bonafide suppression without any malafide intention. The concealment was of a fact which was exclusively in the knowledge of the insured and could not have been detected by the petitioner corporation by way of a reasonable and practicable inquiry.

 

15. The Hon’ble NCDRC in yet other case, in the case of Paramjit Kaur vs. LIC and anr as reported in IV[2014] CPJ (NC) has held as under:

 

In the present case, the opposite parties have fully established on record that the life assured was suffering from diabetes mellitus pulmonary tuberculosis, sepsis and was suffering from diabetes mellitus from 7 years as per form No. 3816 issued by Dr. P.K. Prasher, Fortis Hospital, Mohali. The history of illness of life assured goes prior to the date of submitting of proposal form in respect of the Insurance policies.

It cannot be disputed that the contract of insurance is contract uberrima fids and there must be complete good faith on the part of the assured and thus the assured is under a solemn obligation to make full disclosure of material facts which may be relevant for the insurer to take into account while deciding whether the proposal should be accepted or not".

In this case, there is sufficient evidence on behalf of the opposite parties to prove the fact that the life assured had made false declaration and concealed the true and material fact with respect to his state of health and illness suffered by him. As such, the complainant is not entitled for any insurable benefits.

16. The ld. Counsel for the complainant has relied upon a judgment of the Hon’ble NCDRC in the matter of New India Assurance Co. Ltd., vs. D Janardanan (Dec.) thr LRs as reported in II [2016] CPJ 535 (NC), holding that the repudiation is not justified in the case where the complainant has been permanently declared unfit to fly and the intimation about the disability conveyed to the OPs within a period of three months but the facts of the present case are on a different footing and distinguishable. Reliance of that case for the present case would therefore be misplaced.
17. The Complainant has also relied on another judgment passed by the Hon’ble NCDRC in the matter of LIC of India versus P.R. Sumanagala as reported in III[2018] CPJ 106 (NC) but even that judgment is not apposite to the facts of the case under consideration since the petitioner has not been able to conclusively prove that insured suppressed any fact regarding his health while filing of proposal form but in the given case suppression of material fact is apparent on the face of it.
18. In view of the discussion done and the legal position settled we are of the considered view that the insured had suppressed the material fact regarding his health in the proposal form and thus breached the terms of policy in which case the complainant would not be entitled for the relief claimed.
19. We accordingly uphold the repudiation done by the OPs as no infirmity has been found in their action and having done so, we dismiss the complaint leaving the parties to bear the cost.
20. A copy of this order be forwarded to both the parties to the case free of cost as statutorily required.
21. File be consigned to records thereafter.

 

 

 

 

(ANIL SRIVASTAVA)                                                                                            (O.P.GUPTA)

              MEMBER                                                                                                MEMBER (JUDICIAL)