(Delivered on 01/03/2023)

PER SHRI A. Z. KHWAJA, HON’BLE PRESIDING MEMBER.

1.         Complainant – Smt. Vijeta Rajesh Tiwari  has preferred the present complaint  under Section12 of the Consumer Protection Act, 1986.

2.         Short facts leading to the present  complaint  may be narrated  as under:-

            Complainant - Smt. Vijeta Rajesh Tiwari   is the widow of deceased Rajesh Tiwari who died on 27/08/2016 at M.I.T. Hospital, Aurangabad due to the illness of Cirrhosis of lever with  portal hypertension.  The complainant  has contended that  deceased  Rajesh  had taken  Life Insurance Policy  bearing No. 52155723 on 22/04/2015 from the  respondent  for the period of 35 years  starting   from 22/04/2015 and  yearly premium of Rs. 9809.02  and sum assured   was Rs. 60,00,000/-. It is contended  by the complainant that  before the  issuance of  policy  the deceased – Rajesh had undergone  all the medical tests  performed  from Dr. Sarda who was the  panel physician of O.P.- Reliance Nippon Life Insurance  Co. Ltd. and thereafter, the O.P.  had accepted  the proposal  of  insured  and issued the policy.  The complainant  has contended that  while  filing the proposal form the deceased  had  answered  the question Nos. 27 and 28 in positive  form and  had answered  yes as  he was  having the ailment  of Vericos Veins prior to  one year from date  of filing proposal form and deceased  had not  suppressed  any facts from the  O.P.- Reliance Nippon Life Insurance  Co. Ltd. Prior  to  taking  the aforesaid   policy  the deceased – Rajesh  Tiwari had taken  another  policy  bearing  No. 513034241907 on 07/07/2013 from  Aegon Religare Life Insurance  and the yearly premium  was Rs. 7640/- and sum assured  was Rs. 50,00,000/- but  deceased – Rajesh had paid only one premium and had not  paid the second  premium and therefore the policy  was  terminated  and  it  lapsed  due to nonpayment of premium. The complainant   has contended that   the deceased – Rajesh  had taken  new  policy  from the respondent  after  the period of  9 month  from the  lapse of  earlier  policy.  The complainant  has contended that  due  to illness of  Vericos veins  the deceased  was in contact  with doctor of KEM and  doctor of KEM Hospital  referred  the deceased  to Global Hospital at Mumbai  and  Dr. Sathish Gaitonde of Global Hospital  performed  certain  tests on  09/12/2015. The complainant has contended that the health condition of deceased- Rajesh deteriorated day by day and he was admitted in the MIT Hospital, Aurangabad on 03/08/2016. The complainant has contended that several tests were performed and Dr. Sharad  Joshi of MIT Hospital gave opinion that the deceased   was suffering from the ailment of Cirrhosis of Liver with portal hypertension.  The deceased- Rajesh  ultimately died on 27/08/2016 due to ailment of Cirrhosis of Liver at the age of 40 years. The complainant  has contended that  she was  nominee of deceased  and  she informed  about  all facts to the  O.P.- Reliance Nippon Life Insurance  Co. Ltd. and submitted  all the documents  along with the  claim form.  The complainant  also issued  a letter  to the O.P. on 28/04/2017 to  settle the claim but   the  complainant  received the letter  of  repudiation  on 30/04/2017 from the  O.P.- Reliance Nippon Life Insurance  Co. Ltd.  informing that  the  claim  in respect  of  death of  deceased  was  repudiated   as per  term of  section 45 of the  Insurance Act.  The O.P.- Reliance Nippon Life Insurance  Co. Ltd.  has  taken  a plea that  there was  concealment of material facts  by  deceased – Rajesh  Tiwari as  he was suffering  from Cirrhosis of Liver  since  two  years  during  his  hospitalization  in  May 2016. The complainant thereafter issued a letter to the Grievance Redressal Officer of O.P. on 05/06/2017. The complainant has contended that the repudiation of death claim was not at all justified.  The complainant  had also filed  a complaint  with  Insurance  Ombudsman, Pune on 07/09/2017 but  the office of  Ombudsman  informed  that  the  complaint cannot be considered as the claim   exceeds Rs. 30 Lacs.  The complainant has contended that the O.P. -Reliance Nippon Life Insurance Co. Ltd. has repudiated that genuine claim of the complainant in unlawful manner. The complainant has contended that the deceased-Rajesh was not suffering from any ailment when the policy was taken and so there was no question of suppression of material   facts. The complainant has contended that by repudiating the genuine claim of the deceased the O.P.  had committed Deficiency  in service as well as unfair trade practice. The complainant had no source of income and she has to maintain a minor children. The complainant was therefore, compelled to file the present complaint with prayer to direct the O.P.- Reliance Nippon Life Insurance  Co. Ltd. to pay Rs. 60 Lacs. which was the sum assured  along with interest  at the rate of 18% and also  to pay Rs. 5 Lacs  by way of compensation  and cost of  litigation.

 3.         The O.P. Nos. 1&2 have appeared and resisted the complaint by filing written version on record.  The O.P. Nos. 1&2 have contended that the present complaint was not tenable in law as there was no deficiency in service or negligence on the part of the O.Ps. The O.Ps. have contended that  the deceased  has misled   the O.P. Company by submitting  false proposal  form to obtain insurance cover. The O.Ps. have contended that  the deceased  Rajesh Tiwari has deliberately concealed  that  he had taken  two policies  one from Aegon Religare Life Insurance for  Rs. 50 Lacs.  in the year  2013 and another  insurance policy from Bajaj  Allianz for Rs. 6 Lacs. taken in the year 2010. The complainant had not only committed mis–representation but had also committed fraud with the O.Ps.  The O.Ps.  had denied that  the earlier policy  taken  from Aegon Religare Life Insurance has  lapsed. The O.Ps. have contended that  the claim of the complainant  was  rightly  rejected  on the ground  that  the  deceased has suppressed   material facts that  he was suffering from Liver Cirrhosis  two years prior to date  of taking the policy.  There was no deficiency in service or unfair trade practice by O.P.- Reliance  Nippon  Life Insurance Co.  For the forgoing reasons the complaint filed by the complainant was not tenable in law and deserves to be dismissed with cost.

 4.         The complainant  thereafter  adduced evidence  by way of  affidavit  and also placed  reliance upon  several documents  which are placed on  record.  The O.P. has also adduced evidence by way of affidavit and has also placed reliance upon documents.  The complainant as well as  O.P.  filed their written notes of argument.

 5.         We have heard Mr. Kalantri, learned advocate appearing for the complainant and Mrs. Ashwini Athalye learned advocate appearing for the O.P.- Reliance  Nippon  Life Insurance Co.  The complainant has come with the specific plea that her husband deceased- Rajesh Bansilal Tiwari had taken one life insurance policy from the O.P- Reliance Nippon Life Insurance Co.   Bearing No. 52155723 on 22/04/2015 and period of the policy was for 35 years   commencing from 22/04/2015 and yearly premium of the said policy was Rs. 9809.02 and the sum assured was Rs. 60 Lacs. The complainant has contended that prior to  taking the said policy of the O.P.  all medical tests were also  conducted  and  report  was also  submitted  by Dr. Mr. Sarda who was  Panel of Physician. The complainant  has  further  contended  that  prior  to taking the said policy  the  deceased – Rajesh Tiwari had taken  another  policy  from  Aegon Religare Life Insurance bearing  policy  No. 513034241907 on 07/07/2013  and the sum assured  of Rs. 50 Lacs. The complainant has contended that  though  the  earlier policy  was taken from Aegon Religare Life Insurance, the deceased had paid  only one premium and therefore the  said policy  came to be terminated  and it  also  lapsed.  The said policy was valid only up to 07/07/2014 and due to nonpayment it had lapsed. The complainant has contended that at the time of taking the policy from O.P. -Reliance Nippon Life Insurance Co.  the  deceased  had also  filled  up  proposal form and had answered  the question  Nos. 27 & 28 in positive by  answering  Yes  as he was suffering  from  ailment of  Vericos Veins  since prior to one year  from the date  of  proposal.  The complainant had not suppressed any material   facts from the O.P.- Reliance Nippon  Life Insurance Co.  It is   contended  on behalf of the complainant that  due to  ailment of  Vericos Veins the deceased  was  in touch  with  doctor  of KEM Hospital  and  they  had referred to deceased  to Global  Hospital  at Mumbai where  further  medical tests  were  performed  on 09/12/2015 and it was disclosed  that  the  deceased was suffering  from Cirrhosis of  Liver with  portal  hypertension. The  deceased  was also treated  by  Dr. Vijay Jadhav and  thereafter the  health  of  the deceased   deteriorated  and ultimately  he died on 27/08/2016 due to  ailment  of Cirrhosis of Liver.  The complainant has also placed on record all the necessary documents including the copy of proposal form as well as copy of insurance policy taken from Aegon Religare Life Insurance. The complainant has also placed on record one copy of letter issued  to Grievance Redressal Officer on 05/06/2017. Further the  complainant  had also  placed on record  one copy of  repudiation  letter  dated 30/04/2017 by which  the claim submitted  by the complainant  came to be repudiated.  If we go through the copy of repudiation letter dated 30/4/2017 the claim came to be repudiated on the ground that the deceased – Rajesh Tiwari had concealed  material  facts  that  deceased  was   suffering  from  Cirrhosis of liver  since  2 years  during  the  hospitalization  in may 2016 and thereby  had  committed  breach of terms  and condition  of insurance  policy.  It is vehemently  submitted by  Mr. Kalantri, learned advocate  on behalf of the complainant  that  at the time of  taking the  policy on 22/04/2015 the  deceased  had not suppressed  any  material  facts at all  and on the contrary  the deceased  had himself disclosed  that  he was suffering  from   Vericos Veins. In this connection Mr. Kalantri, advocate  for the complainant  has also  drawn our  attention  to the copy of proposal  form wherein  the deceased – Rajesh Tiwari  had clearly answered  the question  Nos. 27 and 28 in positive and had stated that  he was suffering  from  ailment of Vericos  Veins prior  to one year from the date of filing  the proposal form. It is submitted by Mr. Kalantri, learned advocate for the complainant that the deceased husband of the complainant was  suffering from medical ailment and he was referred by KEM Hospital, Mumbai to Global Hospital where further tests were conducted and deceased husband of the complainant was diagnosed as suffering from Cirrhosis of liver with  portal hypertension. It is contended   by the learned advocate for the complainant that the ailment of Cirrhosis of liver  was detected   first time in the month of December-2015 and same was  not  detected  when the policy  was taken.  On the contrary it is submitted by the learned advocate for the complainant that the disease to the husband of the complainant was detected on 03/11/2015 after six month of taking the said policy. The learned advocate for the complainant  has contended that  though  the  O.P. has repudiated  the claim as per repudiation  letter  yet no   other  documents are filed on record  which could  go to show that the deceased has  suppressed material facts and  that suffering from  Cirrhosis of liver  detected much prior  insurance policy   was taken. During the  course  of argument,  Mr. Kalantri, learned advocate for the complainant has drawn our attention  to the copy of the proposal  form filled by the deceased husband of the complainant and more particularly  question  No. 18 where  the deceased was asked  whether he  was  currently  insured  or was applying   for  life insurance  cover.  Further, Mr. Kalantri, learned advocate for the complainant has also  drawn our attention  to  question Nos.27, 28 and 29 as to whether  the  deceased  was suffering  from any illness .  It is argued by the learned advocate for the complainant that the deceased/insured had already  disclosed  that  he was  suffering from Varicos veins but the deceased/insured was not suffering from any ailment like Cirrhosis of liver  when the  policy  was taken. At the time of taking the policy said ailment was not detected.  It is submitted  by the  learned advocate  for the complainant  that only  after  tests were conducted by Dr. Joshi of  MIT, Hospital   opinion was given that  the deceased  was suffering  from Cirrhosis of liver with  portal  hypertension and then he was admitted  in the MIT  hospital   and  unfortunately  died on 27/08/2016. In this connection  the learned advocate for the complainant  has drawn our attention  to the various  medical  papers  consisting of medical test  reports  of  Global Hospital, Mumbai and same shows that  tests were  conducted on 09/12/2015  whereas policy  was taken  on 22/04/2015. We have heard learned advocate for the O.P. on this count and he has submitted that  the deceased husband of the complainant  had deliberately  mislead  the O.P. company  in to believing   that  he has  healthy  and had  no previous  history. It is submitted by him that the claim form –B shows that  the deceased was suffering  from Cirrhosis of liver with hyper tension and same  was pre existing  before taking the policy.  It is also contended that in claim form No.-B there is also over writing with respect to  question No.7 and so we have carefully gone through the claim form-B.  But  prior  to dealing with the same it is necessary to point out  that  as per medical papers  filed on record by the  claimant  from Globe Hospital , Mumbai, it is crystal clear that  the ailment of Cirrhosis of liver was detected  for the first time in the month of December-2015 and more particularly on 09/12/2015 whereas  admittedly  the  insurance  policy  was taken  by the  deceased husband of the complainant  on 22/04/2015. We have also gone through  the copy of claim form-A as well as  copy of claim form-B and  the same also supports  to the case  of  the complainant  that the  deceased husband of the complainant was not suffering  from Cirrhosis of liver when he had taken  the policy  and had also  answered  the questionnaire   at the time of  taking the policy. Apart from this, the O.P.  Company has not placed on record any other  documents  to show that  the deceased- Rajesh Tiwari was suffering  from  the ailment  prior  to taking the insurance policy .

 6.         During the course of argument   Mr. Kalantri, learned advocate for the complainant has also placed reliance upon several judgments of Hon’ble National Commission. At the outset he has relied upon the judgment  of Hon’ble National Commission in the case of  LIC of India Vs. Pankaj Pandey, reported in 2016,NCJ, 376 (NC). In that case  also the  facts  were  quite  similar and it was observed by the Hon’ble National Commission that if  the policy holder  suffers  any disease   after issuance  of policy, same will not have weightage.  Further  he has also relied  upon the judgment  of Hon’ble National Commission in the case of  Padmavathy Venkatesh Vs. Oriental Insurance Company, reported in 2016 NCJ 135(NC). In that case  it was observed that  since  insurance company  has failed to prove concealment of previous  ailment  or  misrepresentation, the Consumer  is  entitled  for insured amount  of policy.  Further Mr. Kalantri, learned advocate for the complainant has also relied upon one judgment of Hon’ble  National Commission in the case of Birla Sun Life Insurance Co. Vs.  Gudela Shiva, reported in 2018(2)CPR 739 (NC) as well as one  judgment  in the case of Life Insurance Corporation of India & others Vs. Pariapally Sujatha and another , reported in 2009 STPL(CL) 3817.  In that case no affidavit   of doctor was produced by the insurance company to show that deceased was actually suffering from serious disease.  On the basis of aforesaid  judgments it  is submitted by the learned advocate for the complainant that  no  inference can be drawn that the deceased insured has suppressed  material  facts  or that  deceased insured had committed  breach of  terms  and conditions of  insurance policy by  suppressing  material  facts. We do find considerable force in this contention of the learned advocate for the complainant, in view of the documents  and medical papers  placed on record which  do not show that the  deceased insured  was suffering  from Cirrhosis  of Liver since prior  to taking the insurance  policy  as mentioned in the repudiation  letter  dated 30/04/2017.

 7.         Coming now to the second objection, it is contended on behalf of the O.P.  that the  deceased insured  had deliberately  suppressed the material  facts. The deceased insured   had earlier taken two policies one from Bajaj Allianz for Rs. 6 Lacs. in the year 2010 and  another  from Aegon Religare Life Insurance   for Rs. 50Lacs in the year 2013 and  so the deceased insured  had also  played  fraud  with the  O.P. However, the  complainant has  himself  admitted  that  the deceased  had taken  policy  bearing  No. 513034241907 on 07/07/2013 from Aegon Religare Life Insurance  and yearly premium   was Rs. 7640/- and sum assured   was Rs. 50 Lacs.  It is argued by the  learned advocate  for the complainant that  after taking  the said policy  deceased –Rajesh Tiwari had paid  only one premium and thereafter  had not paid  the second  premium and  therefore,  policy was terminated and had lapsed. It is submitted that the said policy was valid up to only 07/07/2014 and so deceased –Rajesh Tiwari had taken new policy.  The learned advocate for the O.P. has contended that there was misrepresentation as the deceased –Rajesh Tiwari had not disclosed this aspect.  The learned advocate for the complainant has submitted that at the time of taking the policy the deceased –Rajesh Tiwari was asked as per question No. 18. We have  gone through  the copy of proposal form as well as question No. 18 and same shows that  the  deceased- Rajesh Tiwari  had answered  question No. 18 in the negative as  he was not insured  at  the time of taking the policy. In view  of this  answer  to  question No. 18 it cannot be said that the deceased-Rajesh Tiwari had suppressed any material   information or  material  facts so as to  invoke section  45 of the Insurance Act. We are therefore of the view that the repudiation of the insurance claim as per letter dated 30/04/2017 on the ground of concealment of material facts was not justifiable.  On the other hand, the complainant has placed on record number of medical papers to show that after taking the policy insured died on 27/08/2016 due to Cirrhosis of liver with portal hypertension.  We also feel that the O.P.- Insurance company was not justified in   denying legitimate  insurance claim of  the complainant. Admittedly, as per the insurance policy documents the sum assured was for  of Rs. 60,00,000/- as per  policy No. 52155723 and so  the  complainant was entitled  for the said amount.  Accordingly, we hereby  hold that the O.P. Reliance Nippon Life Insurance Co. Ltd. has committed deficiency in service by repudiating the legitimate insurance claim of the complainant for which she was entitled.  Further we hold that the complainant is also entitled for  interest on the said  amount  as well as compensation for mental and physical  harassment as well as cost of litigation  and so we pass the following order.

ORDER

 i.          Complaint filed by the complainant is hereby partly allowed.

 ii.          It is hereby declared that the O.P.Nos.1&2 have committed Deficiency in service as well as Unfair trade practice.

 iii.         O.P. Nos. 1&2 are hereby directed to pay sum of Rs.60,00,000/-  to the complainant, towards  insurance claim under policy  bearing No. 52155723, along with interest  at the rate of 12% from the date of order  till its actual realization.

 iv.        O.P.Nos.1&2 are further directed to pay compensation of Rs.2,00,000/- towards mental  and physical  harassment and Rs. 25,000/- towards cost of  litigation.

v.         Copy of order be furnished to both the parties, free of cost.