Sh.Anoop Sharma, Presiding Member.

1.       Smt.Kiran Arora has brought the instant complaint under section 12  of the Consumer Protection Act, 1986 on the allegations that her husband procured the policy bearing No.21415798 on 23.10.2014 and he declared the complainant as nominee. The policy was for the term of 15 years for a sum of Rs.12 lacs. The policy holder suddenly fell ill and was got admitted in Smt.Parvati Devi Hospital on 3.9.2015 and died on 4.9.2015. The death of the policy holder was sudden. The complainant thereafter filed claim on 21.10.2015 and all the documents were annexed with the claim. Lateron the complainant received a letter dated 23.10.2015 which was delivered  to the complainant very late and due reply of the same was given by the complainant on 18.12.2015. Even before filing the reply, the complainant contacted on the toll free numbers and informed regarding providing all the documents. Lateron, the complainant again received a letter dated 17.2.2016 again  demanding the documents, which were already supplied alongwith claim form. After receiving the documents, the complainant again approached the local office of Opposite Party and told regarding the providing all the documents sought in letter dated 17.2.2016. After verifying the documents, the officials of Opposite Party informed the complainant that there is no need to file again the documents. Inspite of completing all the formalities and documents, till date the claim has not been released. Thereafter, the complainant got issued one legal notice dated 9.5.2016 calling upon the Opposite Party to make the payment of the claim amount, but neither the Opposite Party replied the said legal notice nor make the payment of the claim amount.  The complainant received letter dated 1.3.2016 which was received after issuance of legal notice, in which on the flimsy grounds, the claim of the complainant has been repudiated. The  deceased  was not suffering from any disease prior to the admission in the hospital and never taken any treatment for DM and repudiation of the claim on this ground  is not sustainable and is against the law. It is further submitted that the deceased was also insured himself from Bajaj Allianz General Insurance Company Limited under the medical policy, earlier, they also repudiated the claim on the flimsy ground of pre existing disease, thereafter the complainant filed complaint against the Bajaj Allianz in the Consumer Forum, in which they finally compromised the matter and agreed to make the payment of medical expenditure incurred by the complainant cover under the policy. But this act of Opposite Party amounts to deficiency in service and unfair trade practice which causes great mental tension, pain, agony and harassment to the complainant. The  complainant has prayed for the following reliefs  through the instant complaint.

a)       Opposite Party  be directed to make the payment of claim amount to the tune of Rs.12 lacs alongwith interest @ 12% per annum

b)      Opposite Parties  be directed to pay compensation of Rs.1,00,000/- for deficient services and for causing harassment and  mental agony to him.

c)       the cost of the complaint may also be awarded to the complainant.

Hence, this complaint.

2.       Upon notice, inspite of due service, none put in appearance on behalf of the Opposite Party  and as such, the Opposite Party  was ordered to be proceeded against exparte. 

3.       In her bid  to prove the case, complainant tendered  her duly sworn affidavit Ex.C1,  in support of the allegations made in the complaint and also produced copy of documents Ex.C2 to Ex.C10 and closed the exparte evidence.

4.       We have heard the ld.counsel for the  complainant and have carefully gone through the evidence on record.

5.       From the appraisal of the evidence on record, it becomes evident that husband  of the complainant procured the policy bearing No.21415798 on 23.10.2014, copy of policy accounts for Ex.C2 and he declared the complainant as nominee. The policy was for the term of 15 years for a sum of Rs.12 lacs. The policy holder suddenly fell ill and was got admitted in Smt.Parvati Devi Hospital on 3.9.2015 and died on 4.9.2015, copy of death certificate accounts for Ex.C3. The complainant alleged that the  death of the policy holder was sudden. The complainant thereafter filed claim on 21.10.2015 and all the documents were annexed with the claim. Lateron the complainant received a letter dated 23.10.2015 which was delivered  to the complainant very late and due reply of the same was given by the complainant on 18.12.2015, copy of the reply is Ex.C5. It was further alleged that even before filing the reply, the complainant contacted on the toll free numbers and informed regarding providing all the documents. Lateron, the complainant again received a letter dated 17.2.2016 again  demanding the documents, which were already supplied alongwith claim form. After receiving the documents, the complainant again approached the local office of Opposite Party and told regarding the providing all the documents sought in letter dated 17.2.2016. After verifying the documents, the officials of Opposite Party informed the complainant that there is no need to file again the documents. It is further submitted that inspite of completing all the formalities and documents, till date the claim has not been released. Thereafter, the complainant got issued one legal notice dated 9.5.2016 calling upon the Opposite Party to make the payment of the claim amount, copy of notice accounts for Ex.C8, whereas copy of postal receipt Ex.C9, but neither the Opposite Party replied the said legal notice nor make the payment of the claim amount.  The complainant received letter dated 1.3.2016 which was received after issuance of legal notice, in which on the flimsy grounds, the claim of the complainant has been repudiated. The  deceased  was not suffering from any disease prior to the admission in the hospital and never taken any treatment for DM and repudiation of the claim on this ground  is not sustainable and is against the law. The evidence produced by the complainant has gone unrebutted on record as  the Opposite Party,  despite due service, did not opt to appear and contest the proceedings. In this way, the Opposite Party has impliedly admitted the correctness of the allegations made in the complaint. It also shows that Opposite Party has no defence to offer or defend the complaint. The complainant has sought for the insured amount of Rs.12 lacs  alongwith interest @ 12% per annum besides compensation to the tune of Rs.1,00,000/-. Perusal of the copy of repudiation letter Ex.C7 shows that the Opposite Party has repudiated the claim of the complainant on the ground that the deceased insured was suffering from Diabetes Mellitus prior to the policy issuance.

6.       It has been held by the Hon'ble National Commission in case New India Assurance Co.Ltd & Anr Vs. Murari Lal Bhusri 2011(III) CPJ 198 (NC) that where the Insurance company failed to produce any evidence to show that respondent was aware of any pre-existing disease at the time when insurance policy was taken, opposite party was not justified in repudiating the claim of the complainant on the ground of pre-existing disease. It has been held by the Hon'ble Supreme Court of India in case P.Vankat Naidu Vs. Life Insurance Corporation of India & Anr 2011(3) CPC 350 that where no cogent evidence was produced by the respondent to prove that insured/deceased had concealed any fact about his illness or hospitalization, it was held that no material fact was suppressed by the deceased in this respect. It has been held by the Hon'ble State Commission of Punjab in case Life Insurance Corporation of India Vs. Miss Veenu Babbar and another 2000(1) CLT 619 that repudiation on the basis of history recorded in the hospital records is illegal and arbitrary and the same could not be treated as substantive material to base any decision. Same view has been taken by the Hon'ble National Commission in case Life Insurance Corporation of India & Ors. Vs. Kunari Devi IV(2008) CPJ 89 (NC) that where no document has been produced in support of allegation of suppression of disease at the time of taking policy or revival of policy, history recorded in hospital's bed ticket, not to be treated as evidence as doctor, recording history not examined, suppression of disease not proved, insurer was held liable under the policy. It has further been held by the Hon'ble National Commission in case Sahara India Life Insurance Co. Ltd. & Anr Vs. Hansaben Deeepak Kumar Pandya IV(2012) CPJ 13(NC) that where the opposite party insurance company has failed to produce on record any evidence to show that deceased insured ever consulted doctor for taking treatment of DM, the repudiation of the claim on the ground of suppression of material fact is totally illegal. As state above, none has put in appearance on behalf of the Opposite Party in the instant case, hence the averments made by the complainant in her claim has been impliedly admitted. So far as diabetes is concerned, Disease of diabetes is so common in our country men, at least in this part of the country, that almost every third person is suffering from it. If proper check is maintained on that disease it is not fatal and a person suffering from diabetes can live even for 20 to 30 years if he is taking proper medicines. Therefore non-disclosure of this disease by the assured does not entitle the Insurance Company to repudiate the insurance claim."

7.       In our considered view, the Opposite Party is liable to pay the insured amount of Rs.12 lacs to the complainant. But however, the claim for compensation to the tune of Rs.1,00,000/-  is concerned, the same appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would  be fully met if the complainant is awarded compensation to the tune of Rs.5000/- and we award the same accordingly. Besides this, the complainant is also entitled to litigation expenses to the tune of Rs.2000/-. Opposite Parties  are granted one month time to comply with the order, failing which the awarded amount shall carry interest @ 9% per annum from the date of passing the order until full and final payment. All the Opposite Parties  are held liable jointly, severally & co-extensively to comply with the order.  The complaint stands allowed exparte accordingly. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum