BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM.
KAMRUP
C.C.No.48/2014
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA - Member
Shri Aswini Bezbaruah -Complainant
S/0 Late Ningna Bezbaruah
R/O-Pandu Rest Camp
Guwahati-781012,
District: Kamrup,(Metro) Assam
-vs-
I) SBI Life Insurance Co. Ltd. - Opposite parties
Guwahati Regional Office,
Ulubari, Guwahati-781005, Assam
II) SBI Life Insurance Co. Ltd.
“Natraj” M.V.Road & Western Express
Highway Junction, Mumbai-69
Appearance
Learned advocate Mr.D.Deka, Mr.R.Kaman for the complainant .
Learned advocate Mr. S.H.Sarma for the opposite parties .
Date of argument:- 19.10.20
Date of judgment: - 15.12.2020
JUDGMENT
1) This is a complaint filed under section 12 of the Consumer Protection Act, 1986. The complainant Sri Aswini Bezbaruah filed the present complaint against SBI Life Insurance Company Ltd. Guwahati Regional office, Ulubari and SBI Life Insurance Company Ltd., Highway Junction, Mumbai-69
2) The fact narrated by the complainant is that his brother Dinesh Bezbaruah obtained two online policies from the respondent company in the month of July,2012 being the policy No. 47003030809 with a cover policy for Rs.10,00000/- (Rupees ten lakhs) only in the event of his death. The complainant was the nominee for the aforesaid policy.
3) On 13.10.2013 the insured Dinesh Bezbaruah went Sualkuchi to one of his relatives and accidently fell slipped in river Brahmaputra while went for a bath and went missing.
4) The complainant filed an F.I.R. to the Pandu River Police Station while his dead body was located and identified by his brother . The Pandu River Police forwarded the F.I.R. to Sualkuchi River Police and the Sualkuchi River Police registered an UD case.
5) On 4.11.2013 the death certificate was issued by the department of Health Services and subsequently another certificate was issued by the Superintendent of Forensic Medicine, Guwahati Medical College Hospital stating that death of the deceased was due to drowning.
6) The complainant therefore approached the respondent authority and requested them to settle the policy and complied with all the necessary formalities and assured all desired assistance needed for settling claims.
7) The respondent company vide letter dtd. 10.2.2014 repudiated the claim of the claimant on the context that there was concealment of the material information. It was further alleged by the respondent company of the non-disclosure of the complete factual position and led to repudiation of the claim of the complainant. The respondent have also enclosed a cheque of Rs.30/- bearing cheque No. 569917 drawn on SBI , Mumbai issued in favour of the complainant towards deposit balance as per terms and condition of the policy .
8) The complainant stated that deceased was young and healthy man without any disease and his unfortunate demise had left the family saddened. The deceased was a businessman and he had a good earning obtaining the policy and the respondent have issued the policy after verifying the contents of the proposal forms and there were no concealment of any material facts.
9) The claimant stated that the deceased died due to drowning and he was drown in an accidental slip in the river Brahmaputra and therefore, the claim of the complainant was legal. However the respondent are trying to evade their liability to make payments as regards the policy concerned, and on that pretext tried to fish out frivolous information and on such a ground legal and bonafide claim of the complainant which is utter illegality on the part of the opp.pary.
10) The claimant further stated that the respondent have acted harshly and illegally and deficiency in service on the part of the respondents is palpable and therefore the respondent be held liable to make good of the dues of the complainant.
11) The complainant , therefore pleaded for settlement of the policy No. 47003030809 in favour of the complainant and to direct the respondents to pay an amount of Rs.10,00000/- (Rupees ten lakhs)only for favour of the complainant along with interest @ 18% per annum w.e.f. 10.2.2014 till realization and to further direct the respondents to pay an amount of Rs.5,00,000/- towards compensation and deficiency in service and to direct to pay an amount of Rs.25,000/- towards the cost of litigation.
12) The opp.party appeared and contested the proceeding by filing written statement where it has been stated that the suit is bad for territorial jurisdiction as address opp.party No. 2 is at Mumbai. It is submitted further that the contract between the proponent and the opp.party is on good faith and proponent need to disclose everything about his health , previous insurance policies and other related matters. But the proponent , Late Dinesh Bezbaruah have committed a breach of principle by suppressing of material fact that he was suffering from diabetes mallitus and he has existing insurance with other insurance companies and two of his proposals were rejected by other insurance companies prior to commencement of the present policy. It is stated that at the time of signing proposal on 4.7.2012, he replied in negative to question No. 11, 13(iv) and 13(xiv).
13) It has been mentioned in the written statement that the proponent had existing insurance covering with other insurance companies and two of his such proposals were rejected and was suffering from diabetes mallitus prior to the date of commencing of the policy. It is submitted that proponent had deliberately suppressed the material fact and obtained the insurance cover fraudulently for which the complaint petition is not maintainable and should be dismissed.
14) By citing a case law Life Insurance Corporation of India –Vs-Surinder Kaur & Others ( Civil Appeal No.5334 of 2006, SLP © No.7865-7866 of 2005), the Hon’ble Supreme Court of India has made it clear that “Jurisdiction of Consumer Forum can be invoked only in case where there has been a deficiency in service on the part of the insurer.” It is alleged that insurance cover was fraudulently obtained by the deceased by suppressing his previous insurance details with other insurance companies and rejection of insurance cover through insurer and preexisting illness are the caused for dismissal of the complaint.
15) In this regard the opp.party took reliance of a reported case law from Hon’ble National Commission in case of Era Mehta -Vs- SBI Life where it was “ We find that the life assured made a deliberate mis-representation in the proposal form by giving wrong information regarding his pre-existing insurance policies in the following words “no existing policy”. I have already discussed that as per the relevant underwriting guidelines, the life assured could have taken insurance worth up to the maximum of Rs. 38,25,000/-. Therefore, had he disclosed the fact that he was already having life insurance policies for a total sum of Rs.37 lakhs as it….. Thus, the order of the State Commission holding that the repudiation of the claim does not amount to defieiency in service cannot be faulted.”
16) In an another case, Satwant Kaur Sandhu 18………………. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus , it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not.”
17)` It is again submitted by taking a plea by the opp.party that there is no deficiency in service on the part of the opp.party and the complaint does not cover within definition of Section 2 (1) (c ) and Section 2(1) (g) of the Consumer Protection Act and the deceased proponent himself is guilty of suppressing and concealing the material fact.
18) To summing up the pleading of the opp.party the brief fact is that the proponent applied for SBI Life Insurance claim with an initial proposal deposit of Rs.2,304/- for a sum assured of Rs.10,00,000/- vide No. 47QG530138 dtd. 4.7.2012 with date of commencement as 24.9.12. The sum assured of Rs.10,00,000/- was issued for a term of 15 years by the opp.party. In the aforesaid policy proponent have answered negative to the relevant quarries about the previous insurance details and the health of the proponent at the time of insurance policy. The proposal form was signed on 4.7.12 and all the relevant questions were answered . The other terms and conditions of the company were agreed by the proponent.
19) It is stated by the opp.party that while signing in the proposal form and it was clearly mentioned that in any omission on the part of the proposal shall render the contract of assurance invalid.
20) It is further mentioned by the opp.party that proponent had insurance with other insurance company for a huge amount of Rs. 44,75,859/- and two of his proposals have been rejected /declined by the Birla Sun Life , Kotak Life Insurance for the reason as he was suffering from diabetes mellitus prior to applying for insurance policies.
21) It is pleaded that proponent reported died on 13.10.13 and policy resulted in a claim in just 01 year 19 days for which insurance company investigated the matter and found that the deceased had previous insurance covers which were rejected by other insurance companies prior to the date of commencement of the present policy in dispute.
22) It is again stated that the opp.party have received confirmation from the respondent company through e.mail , excel sheet received from other insurance companies . In this regard a document has been submitted in the pleading of the parties as Annex.C which shows total sum assured in Birla Sun Life Insurance and ING Exide Life Insurance including Bharti Axa Life Insurance was Rs. 29,75,859/-. The other mail received from Bharti Axa , Birla Sun Life and Exide Life (ING) has been annexed with the pleading which were amounting to Rs. 6,13,300/- and Rs.14,90,000/-.
23) For the reason of above fact and documents available with the opp.party the proposal of the proponent had been rejected and as he was suffering from diabetes mellitus prior to the date of commencement of the risk under the policy dispute. It is alleged that the proponent had obtained the insurance policy fraudulently by suppressing the material fact. The decision of the opp.party to repudiate the claim is as such claim to be justified and legal and on 10.2.14 the decision of the opp.party was communicated to the complainant along with a cheque of Rs.30/- as per policy terms and conditions.
24) Here the opp.party took reliance of some case decided by the Hon’ble Supreme Court and Hon’ble National Commission. The following are the decisions
“ Hon’ble Supreme Court in the case of Chackochan –vs- LIC of India (2007XAD (SC) 429, Civil Appeal no. 5322 of 2007) has clearly held that the Insurer is justified in repudiating a claim wherever there is a suppression of material fact.
SBI Life interalia relies on the following citations.
Hon’ble Supreme Court - Sealark v. United India Insurance Co.Ltd.
Hon’ble National Commission - HDFC Standard Life Insurance Co. Ltd. v/s Smt. Jayalakshmi (R.P.No. 336 of 2007),
Hon’ble National Commission - Neelam Gupta -vs- Reliance Life Insurance & Another (R.P.No.4486 of 2010)
Hon’ble National Commission - LIC V/s Mansa Devi- II (2003) CPJ- 135 (NC)
Hon’ble National Commission Judgment dated 19.3.12- LIC of India v/s Kusum Patro,
Hon’ble Supreme Court - Satwant Kaur Sandhu V/s LIC
Hon’ble Supreme Court - LIC v/s Asha Goel
Hon’ble National Commission Judgment dated 23.8.12 -LIC of India V/s Mandava Geetha,
Hon’ble National Commission order dated 10.9.2013- LIC of India v/s Smti Shahida Khatoon.
25) In the present case opp.party pleaded that in the disclosure sub clause 9.6.1, it has been mentioned that personal statement, medical report and other documents if found incorrect or false or complainant have withheld any material information the company will disclose the policy null and void, but subject to sec.45 of the insurance Act,1938.
26) It is further mentioned in the written statement itself by the op.party at clause 9.6.3, the company will not pay any benefit and will also not return the amount party have paid. The opp.party claimed that policy documents is the evidence of insurance contract, the duty of the court is interpret the words in which the contract is exposed by the parties.
27) It is alleged that the proponent have failed to disclose the material fact in the proposal form and thereby the contract is void ab- initio in terms of Section 17 of Indian Contract Act, 1872.
28) It is further alleged that claim was repudiated within two years of the date of acceptance of the risk. Hence this case does not come within the purview of the section 45 of the insurance Act, 1938.
29) The opp.party again pleaded that there is no deficiency in service as contemplated of Section 2(1)(g) of the Consumer Protection Act and hence the present complaint is liable to be dismissed.
Points for decision:-
30) Issue No. I- Whether the claim of the complainant repudiated for the reason of concealed of material information by the proponent at the time of exhibiting the policy form.
II) Issue No. II- Whether the repudiation of the policy by the opp.party is illegal and complainant is entitled for claim as made.
31) Reasons for decision:-
From the pleading of the party and the documents available with record the issues here-in-above are discussed one after another .
Issue No. I- Whether there is any concealment of material fact by the proponent at the time of filing proposal form. C.W.1 , the complainant himself Aswini Bezbaruah is examined who claim himself to be the nominee of policy No. 47003030809 having covered for Rs.10,00,000/-. He testified the post mortem report as Ex.1 and Ex.2 as F.I.R.,Ex.3 as death certificate, Ex.4 cremation certificate and Ex.5 Forensic report and these certificate are not disputed . As such, further discussion is not necessary on those issues.
32) According to the complainant he approached the respondent company and requested them for settlement of the claim. He claim further that deceased brother the proponent had no any existing diseases let alone , the diabetes mellitus as had been alleged while filing the proposal form. He denies the fact that his brother was suffering from diabetes mellitus. He contradicted the report saying that same name has been examined by the G.M.C.H. against the R.T.I. application having similar name treated in the hospital.
33) The respondent company has committed irregularity and illegality by submitting unverified documents before the forum. He testified the Ex.9 and Ex.9(1) as reported receive from G.M.C.H. To substantiate the fact that proponent was never suffered from any kind of diabetes mellitus during the year of 1.1.2012 to 31.12.2013 and was not treated at Sualkuchi F.R.U. during the year 2013 as indoor patient. Ex. 9 (1) is not clear enough where the proponent Dinesh Bezbaruah was suffering from any diabetes mellitus or not. It is only report that during the year 2013 he was not treated as indoor patient at Sualkuchi F.R.U. Having such contradictory claim made by the parties it became necessary to look into the evidence placed on record by the opp.party in support of the fact that whether the proponent had concealed any fact about suffering from diabetes mellitus and made a false statement in the proposal form which is term as Ex. A . On Ex.A at clause No. XIV it was filled up as “No” by tick mark where the question is “do you have diabetes or ever suffering during or have you been advised to undergo for investigation on diabetes ?” Apparently in the proposal form the reply was “no” by the proponent while filling up the proposal form.
34) Now, if we look into the pleading of the opp.party then it is found that Ex.D(1) is placed on record to show that the policy in the name of Dinesh Bezbaruah by B.S.L.I. policy No. 5186213 was repudiated . But these documents is not clear enough to indicate that repudiation was for any cause of concealment of diseases like diabetes mellitus.
35) Ex D(2) is a similar e.mail copy where the opp.party try to show that policy No. 2451218 proponent in the name of Dinesh Bezbaruah having proposal dtd. 28.4.2012 for B.S.A. amount of Rs.15,05,859/- was there in the name of Dinesh Bezbaruah, C/O Aswini Bezbaruah, Pandu Rest Camp, P.O. Maligaon, Guwahati
36) From the discussion already made and from the documents submitted by the opp.party as Ex. A, B, C & D we cannot say that proponent was suffering from diabetes mellitus. The evidence of the C.W.1 is very clear and had submitted that one R.T.I. report which is exhibited as Ex.9 and Ex.9(1) the reply dtd. 11.9.15 and it reveals the fact that the deceased proponent was never treated in the G.M.C.H. in between 1.1.2012 to 31.12.2013. Ex.9 (1) is further indicating the fact that deceased proponent was not treated at Sualkuchi F.R.U. during the year 2013 as indoor patient . The cross examination of C.W. by the opp.party is found not sufficient to establish any other fact as to the ailment of the deceased proponent . Mere claiming that deceased was suffering from diabetes mellitus without adducing any medical report is not sufficient to hold.
37) On the other hand, the evidence adduced by the claimant in his evidence as C.W.1 testified Ex .1 the post mortem report, Ex. 2 the F.I.R., Ex.3 death certificate , Ex.4 cremation certificate and Ex.5 certificate of superintendent of Forensic medicine etc. which proves the fact that deceased proponent died owing to drowning on 17.10.13 in the river Brahmaputra at Sualkuchi and the police report, medical report are available on record and these are sufficient prove on date of the deceased not owing to any ailment , but was due to drowning .
38 ) Under the above circumstances , it is very difficult to hold on view conclusively that deceased proponent was suffering from diabetes mellitus as alleged by the opp.party. The preponderance of probability is that a person of the age of 29 years drawn in the river Brahmaputra and his cause of death was drawning and not suggestive of the fact that he was suffering from any diseases like diabetes mellitus. As such, the plea taken by the opp.party about concealment of fact relating to existing diseases in the proposal form is not substantiated by adducing sufficient evidence by the opp.party.
39) So far concealment of material fact regarding any other policy in the name of the proponent is taken up bythe opp.party depending on two of the e.mail report which has already been discussed on the earlier paragraph. These documents testified as Ex.D(1) which was reportedly repudiated on e.mail reply collected by the opp.party on 8.11.2011. But present policy was open by submitting proposal form in the month of July,2012. Similar D(2) document reveals the fact that another insurance policy was repudiated on 28.4.2012 i.e. both the policies referred by the opp.party in the present case claiming to have existing policy or concealment of fact is not correct as because the earlier policies were not in place when the present proposal form was submitted.
40) Now , if we look at a proposal form as Ex.A and after carefull perusal of Cl.11 of the proposal form it appears to us the question put to proponent is indirect form which read as under
“ Do you have any other individual Life Insurance Policy or have you applied for one ?” In this question proponent replied in negative by putting tick mark by specific column that no mark put on the proposal. In such a question cannot be said that he had existing policy at the time of submitting the proposal form because as earlier policy if any were not in existence as because these were repudiated or rejected by the other companies . Prior to submitting or apply proposal form in the company of the opp.party i.e. the documents upon which the opp.party took deeply about concealment of fact of having existing policy is not correct and specific to the fact where the queries is directed for having any other policy prior to applying for the present policy by the proponent.
41) Our prolong discussion and deliberation on the above issue lead to arrive at a decision that there was no pre-existing policy in the name of the proponent as per question put to him at Clause 11 of the proposal forum. This type of technical reasoning to discard the claim is not justified and reasonable. A layman for a hope and belief open a policy with hard earned money , but dis-honouring of claim on flimsy and technical ground cannot be accepted as it is against social justice. Hence we are of the opinion that issue No. 1 is decided in negative and in favour of the claimant.
42) So far the issue No. 2 is concerned we are of the clear opinion that proposition of law discussed on placed on record on the basis of the pleading of the opp.party are the admitted position of law. Concealment of fact is definitely fatal and unwarranted for any kind of agreement . In the present case the proposal form is definitely based on good faith and proponent have disclosed his health condition and other requirement as indicated in clause 11 & 13 of the proposal form, but there is no specific evidence from the opp.party to show that the proponent have concealed any material fact him-leading the opp.party while opening the policy.
43) We have gone through the evidence of the O.P.W. Miss Sanchita Dhar. Her testimony reveals the fact that a proposal form was signed by the proponent on 4.7.2012 and age of the proponent was 28 years . She testified Ex.F which was issued by head office , Mumbai, SBI Insurance. The cause of repudiation putting 11-13-IV and Q- 13 (XIV) are the questions put in the proposal form and we have already discussed in the earlier issues about the relevancy of those questions and answers put in the form of objective way without explaining or in a narrative manner . There is no evidence of any existing disease or under-going hospitalization or any operation by the proponent and there is no evidence to show that proponent was suffering or under-gone investigation for diabetes. Hence the reason for repudiation discarding the claim as per Ex.F is not justified and repudiation of the claim is not maintainable.
44) In the result, having regards to the propositions of law placed on record by the opp.party we are of the view that the cited law by the op.parties are undisputed. But since there is no evidence to show that proponent had made any concealment of pre-existing disease and having concealed any other insurance policy at the time of submitting the proposal form of the present claim, he is found entitled for the assured amount as per rule of the insurance policy.
45) Accordingly, issues taken up for discussion are decided in favour of the complainant . The complainant is entitled for his claim of Rs.10,00,000/- (Rupees ten lakhs)only from the date of repudiation with an interest of 6% per annum till realization and opp.party is directed to make the payment. The another amount of Rs.20,000/- (Rupees twenty thousand)only is to be paid to the complainant as compensation and also an amount of Rs.10,000/- (Rupees ten thousand) only to be paid to the complainant for cost of the proceeding within 45 days from the date of judgment . In default of payment of the decretal amount an interest @ 12% is to be paid to the claimant upon the entire decretal amount from date of judgment till realization.
Given under our hand and seal of the District Forum, Kamrup, this the 15th day of December/2020.
Member Member President
Smt A.D.Lahkar Md.J.Islam Shri A.F.A Bora
