(Delivered on 08/01/2018)
Per Mr. S.B. Sawarkar, Hon’ble Member
1. The present appeals are filed against the order of the District Forum, Chandrapur in complaint No. 132/2009 dated 25/02/2010.
A. The two members of the Forum passed impugned order whereby the complaint is partly allowed and thereby directed that opposite party to provide the claim of policy No. 090006250 of Rs. 3,00,000/- from the date of the claim i.e. from 05/03/2009 till final payment with interest at the rate of 12% p.a. The opposite party (short for O.P.) to further provide Rs. 5,000/- as physical and mental harassment and Rs. 1,000/- as cost of the complaint in the span of 30 days from the date of the receipt of the order & if not paid in 30 days then an interest at the rate of 9% p.a. would be payable.
B. The President of the District Forum however, passed a dissenting order of dismissing the complaint.
2. The complainant herein filed a complaint in brief as under,
a. Her mother Deceased Life Assured (DLA) had taken the policy from the O.P. through their agent. The DLA did not know the reading & writing except the ability of signing. The DLA took the policy of Rs. 3,00,000/- from the O.P. after paying Rs. 15,000/- from bank account on 25/03/2008 with a validity up to 25/03/2021. The agent did not give her the original copy of the policy. The policy form was filled and signed by the agents.
b. In December 2008 the DLA started developing health problems and found that her kidneys had failed. Hence, was admitted to the hospital and died on 05/03/2009. As the complainant was a nominee of the policy she filed the claim on 26/03/2009. However, the O.P. did not clear the claim and did not inform her also. When she enquired, the officers of the O.P. took her signatures, on various forms but did not pay the claim which is supposed to be cleared in three months.
c. Holding it to be deficiency in service she sent a notice to the O.P. on 27/09/2009 and filed a complaint after it remained un replied. She prayed claiming deficiency in service to the O.P. & requested to provide her the claim of the policy of Rs. 3,00,000/- with all benefits from 04/06/2009 with interest at the rate of 18% p.a. and a compensation of Rs. 50,000/- for physical and mental harassment and a cost of Rs. 5,000/-.
3. On notice the O.P. appeared and denied the claim stating that the complainant should have filed a complaint before the Insurance Ombudsman and then only has a right to approach the Forum.
4. The O.P. submitted that after getting the claim it conducted enquiry and found that the DLA was suffering with a diabetes and was taking treatment for different ailments. The treating doctor also informed that the DLA had suffered with colon cancer and had undergone operation at Nagpur and was taking medicine. She had taken dialysis treatment in the hospital. It was enquired through the enquiring agency and opinion was taken upon it.
5. The O.P. further submitted that the policy was given on the basis of replies given by the DLA wherein she suppressed the information regarding her health. It is also to be considered that the kidneys do not fail suddenly. Hence, it was found that as the DLA suppressed the information of suffering with diabetes. There is no deficiency in service in repudiation of the claim. It is not true that the claim was not processed but was processed rightly and hence, O.P. requested to dismiss the complaint.
6. The learned Forum heard both the parties and perused the evidence filed by them.
7. The two Members of the Forum below held that it is not necessary to approach the Ombudsman prior to approaching the learned Forum. The O.P. filed the ailment history of the DLA on which there is no signature & hence, cannot be believed. The information is got prepared after the death of DLA which cannot be accepted without evidence. They further held that there is no affidavit of any doctor along with the information.
8. The two Members of the Forum below also held that the suppressed information has to be important and it has to be suppressed with intention and it must be known to the DLA that she is giving false information. However, these three conditions do not stand applicable to the present case and hence, do not result in to the blame of suppression of vital information. Therefore, the O.Ps. are responsible for payment of claim of the policy. Hence, passed the order of partly granting the complaint and payment of claim, supra.
9. The learned President of the Forum held that the DLA had not given any information regarding her ailment when the reports filed by the O.P. show that the DLA had kidney failure with diabetic mellitus for the last four years which were prior to date on which the policy was taken.
10. The learned Forum President further held that the DLA had suppressed the information that she did not take any other policy and then took a policy of high value. The DLA had informed that she was 10th standard passed and was doing a business of tailoring and had given her date of birth as 01/07/1940 indicating that she was almost 68 years old on the day of taking the policy. She had signed below the Form along with the agent which clearly indicates that the DLA was more than 67 years of age and was suffering with the ailment which she suppressed. Hence, the O.P. conducted the enquiry .
11. The learned President of the Forum also held that the premium amount is not paid from the account of the DLA but was paid from the account of the claimant. Also the DLA had additional one more son in addition of the complainant. The complainant had claimed in the notice that the DLA was illiterate with only skill of signing ability.
12. The learned President of the Forum below further held that when the DLA had undergone a operation it cannot be held that she had no information about her ailment. Hence, observing upon the other claims of the complainant passed the order of dismissal.
13. Aggrieved against the order the original complainant filed an appeal No. 329/2010, Advocate Mr. Kullarwar appeared on behalf of her. He requested to grant entire relief sought for in the complaint.
14. The original O.P. also filed an appeal vide No. 428/2010 and advocate Mr. Deepk Gupta appeared for it and filed written notes of arguments. Because of the counter appeal filed against the impugned orders passed by the learned Forum Members and the President separately. We decided to maintain the nomenclature of the contesting parties , as per original complaint. .
15. The advocate for the complainant in appeal No. 329, relied on the following judgments.
i. Andhra Pradesh Consumer Commission order passed in New India Assurance Company Ltd. Vs. A. Tirupati Reedy and others published at II (2008) CPJ 262. Wherein the Hon’ble Commission held that when the discharged summary does not disclose positively the time period regarding the deceased suffering the diabetes which led to the hospitalization then the burden of proof to establish that the suppression of material facts by the complainant lies upon the insurer that the complainant was aware of the symptoms of disease prior to taking the policy.
ii. National Commission Judgment passed in Rashida Khatun Vs. Life Insurance Corporation of India published at III (2009) CPJ 91 (NC). Wherein the Hon’ble National Commission in the matter or suppression of material facts issue held that in the event of non submission of affidavit of concern doctor, the contentions remained un substantiated, un proved the State Commission erred in relaying upon un proved documents. Hence, Forum order restored.
16. The learned advocate for the complainant submitted that the O.P. has not proved by the affidavits of the doctors that the DLI was suffering with a diabetes. Also the DLA did not know writing and reading in English and the form was filled by the agent. It is only that she suddenly developed a failure of kidney and died because of that. Therefore, the learned Members of the Forum rightly considered the complaint of the complainant and passed the order which needs to be confirmed. He therefore submitted that the complainant has filed the present appeal with a request to provide her all the prayers as made in the complaint as not granted by two members.
17. The learned advocate of the O.P. was present but submitted that she relies on the written notes of arguments filed by her.
18.. The learned advocate of O. P. submitted in written notes of argument that the insurance was given which is a contract with the DLA in which it was specifically provided that the insured has declared that she herself certified on behalf of herself and on behalf of any other persons who may have claim or interest in the policy, is aware about the answers given which are full, complete and true and they understand that the O.P. believing them to be such will rely and act on them otherwise the proposed application may be void. The learned advocate of O.P. further submitted that on receiving the claim they conducted a regular investigation through a company and after receiving the detail report after examining the doctors, relatives and surrounding people came to know that the DLA has suppressed the material information that she was suffering with diabetes by taking regular treatment and had also undergone a surgery for colon cancer which clearly shows that she was well aware about her disease still gave the answerer suppressing the material information. Hence, committed breach of the conditions. Hence, the action of the O.P. is just & proper and deserves to be confirmed in view of facts submitted before the learned Forum along with evidence of enquiry.
19. He further submitted that still the learned Members erred grossly and recorded findings contrary to the documents on record and evidence. Hence, the order passed by the learned Members of the Forum below deserves to be set aside and order passed by the learned President deserves to be confirmed.
20. We considered the contentions of both the parties. We find that the learned Members have held that to decide the suppression of material facts it is necessary that the insurer should prove that the suppressed information is important, it has to be suppressed with intention and it should be known to the DLA that the given information is false and DLA is suppressing material information.
21. The learned Members held that as no affidavit of the doctor is filed by the O.P. it can be held that the DLA knew about the material suppressed by her and she suppressed it with intention and knowing it to be false. Thus the O.P. failed to prove it. Hence, passed the order separately.
22. Whereas the learned President held that the enquiry report submitted by the O.P. contained the question and answers issued by Dr. Kolte and Dr. Pimpalshende which contains the information that the DLA was taking treatment for diabetes mellitus for the last four years and had undergone operation for colon which clearly indicated that the DLA was suffering with a disease which she suppressed while providing information. The DLA took a policy of heavy amount and has declared that she was educated up to 10th standard. When she knew her birth date and was of 67 years 8 months and 17 days at the time of taking the policy she gave incorrect information. Also the first premium of the policy was paid from the account of the complainant and the policy taken was for almost for 14 years up to 25/03/2021. The complainant claimed that the DLA was illiterate and the form was filled by the agent for which the complainant paid the amount which is contradictory to the information filed in the form that the DLA was 10th standard passed and was getting income of Rs. 96,000/- per year. Therefore, the learned President held that the DLA many not know about any simple disease but would positively know about her operation. Therefore, the learned President held that the complainant could not prove that the O.P. committed mistake in repudiation of the claim. Therefore passed the order dismissing the complaint.
23. We considered the entire evidence and the two orders passed by the Members of the Forum and President. The insurance policy is always taken for protecting the family in the event of death. We find the DLA has taken the policy of such a high value when she was almost 68 years of age. The policy was also taken of long duration of 14 years and the yearly premium of Rs. 15,000/- was paid by the complainant who was nominated as beneficiary. We further find that the DLA has a son and the daughter but she nominated the complainant the daughter only.
24. We further find that the O.P. conducted a regular enquiry and asked the questions to Dr.Kolte and Dr. Pimpalshende. Both the doctors have signed on the questionary and there is a signature of a witness and recording officer of the agency which conducted the enquiry. In the questionary Dr. Pimpalshende has submitted that the DLA was suffering with the diabetes and had undergone the operation also and she died because of failure of kidneys within five days in the hospital where she was referred after for dialysis.
25. The doctors have thus given the certificates and their answers are supported by their signatures signed before the witness and the recording officers. We find no reason to disbelieve the same.
26. We further find that the circumstances in which the DLA has taken the policy of such high value after taking money from the nominee clearly answers the question raised by the Forum Members that whether she knew the suppressed material which she suppressed it with intention and whether knew that she is hiding it. The fact shows that the DLA was fully aware of her health conditions and she suppressed the information about it with intention and to secure the policy and the post death benefit of it for the nominee. The circumstances show that the nominee has taken the benefit of unhealthy condition of the DLA to encash her failing condition and ageing body by getting the policy and getting it nominated in her favour.
27. We therefore, find that the DLA knew about her health, her operation, her diabetes and gave the negative answer to suppress and get the policy. Therefore, we find that judgments cited by the complainant and also discussed by the learned Forum Members do not apply to the present case and need to be discarded. When the complaint itself does not stand, there is no deficiency of service by the O.P. Hence, no order regarding providing all prayers of the complainant.
28. We find the learned President has rightly considered the complaint and passed the order which deserves to be confirmed by setting aside the order passed by the learned Members. Hence, the order below.
ORDER
i. The order passed by the learned President of the Forum is confirmed.
ii. The order passed by the learned Members of the Forum is set aside.
iii. The appeal vide No.329/2010 is dismissed.
iv. The appeal vide No. 428/2010 is allowed.
v. The complaint stands dismissed.
vi. No order as to the cost in appeal.
vii. Copy of order be provided to both the parties, free of cost.
