Haryana

StateCommission

A/47/2019

LIC OF INDIA - Complainant(s)

Versus

PIYARI DEVI - Opp.Party(s)

VANDANA MALHOTRA

24 Apr 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                Date of Institution: 04.01.2019

                                                          Date of final hearing: 08.04.2024

                                                     Date of pronouncement: 24.04.2024

 

First Appeal No.47 of 2019

 

Life Insurance Corporation of India through its Branch Manager, Jeevan Jyoti B-23 & 24, District. Shopping Complex, Urban Estate, Jind, Haryana. (Through Manager Legal, Life Insurance Corporation of India, Jeevan Parkash Building, Division Office,  Sector 17-B Chandigarh.)…..Appellant

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Piyari Devi W/o Late Shri Rohtash S/o Raghbir, R/o Village Farmana Khas Tehsil Meham, Distt. Rohtak, Haryana.....Respondent

 

CORAM:             Mr.Naresh Katyal, Judicial Member

                             Mrs. Manjula Sharma, Member

 

Argued by:-       Sh.Rajneesh Malhotra, Advocate for the appellant.

None for the respondent.

 

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:-

Appellant-Life Insurance Corporation of India has challenged legality of order dated 15.11.2018 passed by learned District Consumer Disputes Redressal Forum, Jind (hereinafter to as District Consumer Commission) vide which consumer’s/respondent’s complaint has been allowed.

2.      Factual Matrix: Rohtash-husband of complainant had purchased life Insurance Policy No:178413107 from appellant/insurer.  Sum assured was Rs.5,00,000/- and policy commenced on 24.10.2013. Complainant, being wife of life assured was also “nominee” under said policy.  Premium under policy was paid till death of insured Rohtash, who died on 05.11.2015 due to ‘Cancer’.It is pleaded that: Life Assured/Rohtash was not having any habit of taking Beedi, Alcohal and before insurance; he was medically examined by doctors of insurer and his health was found Okay.

3.      Rohtash fell ill; he was medically examined and doctors detected that he was suffering from Cancer. He got treatment in Cancer Hospital at Bikaner (Rajasthan), but expired on 05.11.2015.  Complainant-widow and “nominee” applied to insurer-appellant for payment of amount of policy i.e. (Rs.5,00,000/- + interest) and submitted papers viz. original policy, death certificate and also executed documents as per instructions of insurer/appellant in January-2016.  Insurer/appellant, illegally, unlawfully and without assigning reason has not paid amount of policy along with benefits and interest thereon to her, which as per plea, is deficiency in service of insurer-appellant.

4.      Complainant served legal notice to insurer through registered post dated 06.02.2017, but insurer did not pay any heed to her request and flatly refused to make payment of amount under policy, to her. Insurer gave vague reply dated 21.02.2017 to legal notice, by alleging wrong habits of deceased-life assured being consuming alcohol and smoking beeri.  Complainant has alleged that she has suffered mental agony, pain, harassment and financial loss due to illegal act& conduct and deficiency of service of insurer/appellant. She is entitled to recover all benefits of insurance policy along with Rs.5,00,000/-, and compensation of Rs.2,00,000/- for mental agony, pain etc. with interest thereon @ 24% p.a. till final payment.

5.      Upon notice, insurer/appellant raised contest.  In defence  so filed, it is asserted that: Complainant has no cause of action; there is no deficiency in service of insurer. Complainant has suppressed true and material facts. It is pleaded that Policy No:178413107, plan No.165, Term 20 years, sum assured: Rs.5,00,000/-, commencing from 24.10.2013 was obtained by Rohtash S/o Raghbir from insurer/appellant.Premium @ Rs.12130/-half yearly, till 24.04.33 were to be paid regularly, but premium due on 4/2015 was paid on 03.09.2015.  Premium due on 24.10.2015 onwards were not paid.

6.      After death of life assured; claim under policy in question was lodged by complainant Smt. Piyari Devi.  As per plea: Deceased/Life assured was addicted to smoking and alcoholic drink and he did not disclose same in proposal form.  In proposal form dated 10.10.2013, in personal history questions No.11 ( e) (h) (i); deceased-life assured has given reply in “NO” and hence concealed material information from insurer and obtained policy  with malicious intention to defraud insurer. Deceased-Life Assured made declaration that: Statements and answers have been given, after fully understanding questionsand same are true and complete in every particular and he do hereby agree and declare that statements and declaration shall be the basis of contract of insurance and that if any untrue averment be contained therein, the contract shall be absolutely null and void and all money which shall have been paid shall stand forfeited to corporation.   It is pleaded that insurer/appellant has undisputable sufficient and cogent documentary evidence to prove that deceased-life assured was addicted to smoking and alcoholic drink since long. Hence, after application of mind and on examination of relevant record, claim has been repudiated with well-reasoned and speaking order, rightly and legally, and same was conveyed to complainant vide letter dated 21.02.2017, through registered post. On these pleas; dismissal of complaint has been prayed.

7.      Parties to thislis, led their respective evidence, oral as well as documentary before learned District Consumer Commission, who byanalyzing same has allowed complaint vide order dated 15.11.2018. Direction has been issued to insurer/appellant to pay: Rs.5,00,000/- to complainant with interest @ 7% p.a. from 21.02.2017-the date of repudiation of claim, till its realization, and  also to pay Rs.5000/- as cost of litigation.

8.      Feeling aggrieved; Insurer has filed this appeal. Vide order dated 04.02.2019, passed by this  Commission, the implementation of impugned order dated 15.11.2018 has been ordered to be stayed.

9.      We have heard learned counsel for appellant/insurer at length, and with his able assistance, also examined the record of learned District Consumer Commission.  Notably, none had appeared on behalf of respondent-complainant on 08.04.2024 when arguments were heard.

10.    Learned counsel for appellant/insurer has urged that impugned order dated 15.11.2018 is grossly illegal on both fronts-legal and factual.  Learned District Consumer Commission has committed an illegality by not appreciating the fact that: deceased-Life Assured-Rohtash had concealed material fact/information, personal to him, in proposal form dated 10.10.2013 regarding being addicted to alcholic and smoking Beeri since long and conveniently answered in “NO” to relevant questions No.11 (e ) (h) and (i). It is urged that Deceased-Life Assured had died on 05.11.2015 due to Cancer, and this type of ailment, was/is, intrinsically connected to long smoking beeri and alcholic addiction of deceased-life assured.  It is urged that claim lodged by complainant-widow and “nominee”of deceased-Rohtashunder policy has been rightly and legally repudiated by insurer//appellant by invoking exclusion clause.  On these submissions; learned counsel has urged for acceptance of appeal.

11.    There is no denying fact that insurer-appellant issued policy No.178413107 in name of Rohtash and said policy commenced on 24.10.2013 and admittedly sum assured under policy was Rs.5,00,000/-. Admittedly, premium under policy was also paid till death of Rohtash due to Cancer.  Admittedly, complainant being widow of  deceased life assured-Rohtash was his “nominee” under this policy in question.

12.    The moot question arises for adjudication of this Commission is: Whether act of insurer-appellant in repudiating death claim of complainant (nominee of life assured) under policy, by invoking exclusion clause, was legally justified or not?    This poser obviously invites its answer in negative i.e. ‘No’.  Reasons in this regard are obvious.  Insurer-appellant has based repudiation of death claim by it on ground that deceased-life assured-Rohtash had given misleadingand  wrong answers in ‘No’ while replying to material questions in proposal form dated 10.10.2013 concerning his personal health.    A specific stand has been taken by complainant (nominee as well as widow of deceased-life assured-Rohtash) in her complaint, in para 3 thereof, that before issuance of policy,  he was medically examined by doctors of insurer-appellant and his health was found OK and after that he was insured by appellant. While furnishing reply to this paragraph, it has not been specifically denied that deceased-life insured-Rohtash was not medically examined by doctors of insurer-appellant before inception of policy and its issuance.     Meaning thereby, it stood admitted by insurer-appellant that before issuance of policy in favour of deceased-life assured and its commencement on 24.10.2013, deceased-life assured was medically examined by doctors of insurer-appellant and his heath condition was sound.  The insurer-appellant cannot wriggle out from legal consequences emerging  from quality of its written version, which tantamount to admission on its part regarding prior medical check-up of deceased life insured before issuance of policy.

13.    Law on exclusion of insurer’s liability towards insured, from policy is no more res integra. It is, by now well settled legal proposition that if insurer invokes exclusion from policy; then it (insurer) alone has to lead specific positive evidence in order to establish its exclusion.  Reliance, in this regard can be placed upon ratio of law laid down by Hon’ble Apex Court in case of National Insurance Company Limited Vs. Vedic Resorts and Hotels Pvt. Ltd. in Civil Appeal No.4979 of 2019 decided on 17.05.2023; wherein it has been held that “It is trite to say that wherever such an exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview of such clause.”  Looking at this case from the parameter of law laid down in above-said judgement:  it is established that there is no intrinsic evidence brought on record by insurer-appellant which could have, ex facie, sailed the insurer/appellant out from its liability, under policy.  Tall plea has been taken by the insurer-appellant, in para No.2 of preliminary objection as well as in para 3 of its reply on merits of complaint, that it(insurer-appellant) is in possession of sufficient, cogent and undisputable evidence, which would prove that deceased life assured was addicted to smoking and alcholic drink, since long. Curiously enough, this plea of insurer-appellant remained on paper alone and insurer-appellant could not substantiate the same by leading convincing evidence.

14.    Of course, patient’s summary Annexure R-8 issued by Radio Therapy Department of Acharya Tulsi Regional Cancer Treatment and Research Centre, S.P.Medical College and AG of Hospital at Bikaner, Rajasthan, do carry recital, under head previous treatment in column: life-styleby stating consumption of beeri and alcohol, but, there is no corroborative evidence that said consumption had ultimately occasioned to the development of Cancer to deceased-life assured.Repudiation of death claim by insurer-appellant on the pedestal that mere consumption of beeri and alcohol had led deceased-life assured to suffer from cancer, is sheerly based upon assumption, without there being any support through medical evidence.  There is no document on record showing that any treating doctor of life assured-Rohtash had ever stated in writing to insurer-appellant about the fact that Cancer on deceased-life assured had developed, due to his long addiction of smoking beeri and consuming alcohol.  In absence of such quality evidence, this Commission is satisfied that insurer-appellant has miserably failed to prove its plea and justifying exclusion from its ensuing liability under policy.  Purportedly, insurer-appellant has taken plea of deceased-life assured being addicted to smoking Beeri and consuming alcohol, since long, for namesake just to wriggle out from legal import flowing from the insurance policy regarding its liability.It is well settled legal adage that anything recorded in the history sheet cannot be taken as gospel truth, as evidence.Consequently, this Commission is of firm opinion that: repudiation of death claim by insurer-appellant was accentuated with element of fallacy on its part. Rightly, insurer-appellant has been non-suited by learned District Consumer Commission, Jind.

15.    The impugned judgement dated 15.11.2018does not suffer from material illegality or perversity , as evidence available on record has been appreciated in proper legal perspective. Accordingly, the judgement/impugned order dated 15.11.2018 passed by District Consumer Commission, Jind in complaint No.43 of 2017 is maintained and affirmed. Present appeal is devoid of merits and same is hereby dismissed.

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18..   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.

19.    File be consigned to record room.

 

Date of pronouncement: 24thApril, 2024

 

 

 

                             Manjula Sharma                            Naresh Katyal                                          Member                                 Judicial Member

Addl. Bench-II                      Addl. Bench-II