Complainant through Adv : MR.L.N. CHAURE
Opponent : MRS. SUCHITA DEHADRAI
PER :- Hon’ble President, Shri. B. B. YOGI
Place :- Gondia
-: ORDER :-
( Passed on dated 16th Jan, 2019 )
1. The consumer complaint is filed U/s 12 of the Consumer Protection Act, 1986 against the opposite party-Insurance company for wrongfully repudiating the insurance claim.
2. Brief fats of the complaint are as under:
The complainants’ husband late Shri Dilip Chauhan has taken insurance policy for Rs.2,00,000/- bearing policy no. NN0614-00033595 Plan: Shriram Life Cash Back Term Plan for 20 years on 28/05/2014 by paying premium amount of Rs. 6,515/- and after one year and 15 days apprx. he died due to Dengue Fever on 13/06/2015.
The complainant is wife of the policy holder and she is beneficiary under the Consumer Protection Act, 1986 and also nominee of the policy holder as per Insurance policy issued by the Opposite party. The complainant has filed this consumer complaint for an amount of Rs.2,00,000/- along with Rs. 25,000/- for mental & physically harassment & Rs. 10,000/- towards cost of litigation, when Opposite Party repudiated the claim on 12/10/20/16 on the grounds (i) submission of fake school certificate (ii) income mis-statement (BPL -category) and lastly (iii) for pre-existing adverse health.
3. The Opposite Party no. 1 & 2 has filed their written version jointly stating that the complainant’s husband was suffering from pre-existing aliments of Diabetes, final diagnosis of “K/C OM WITH VERTIGO” & “ TYPE 2 DM & DCM WITH CCF”-means Dilated cardio myopathy-which is a condition in which the heart becomes enlarged and cannot pump blood effectively and CCF means congestive cardiac failure a condition in which the heart muscles is weakened and cannot pump as well as it usually does and the complainant’s husband has supplied false information about Good Health and diseases like heart dysfunction & diabetes etc. which amounts to breach of the principle of uberrima fides meaning “utmost good faith” and hence the opposite party No. 1 & 2 has rightly repudiated the claim of the complainant for deliberate suppression of material facts which were supposed to be disclosed and admitted that they wrongly mentioned in the letter that the school certificate submitted for proof of age was fake certificate and later issued second repudiation letter on two grounds (i) supersession of material facts of income and (ii) pre-existing ailments.
4. We have verified the documents file by the parties and heard both the Ld. Advocates of the parties in details and gone through the citations submitted by the parties and our finding with reasons are as under:
FINDING WITH REASONS
5. The opposite party has appointed an investigative agency namely “centre point services” which has submitted its report to the opposite party wherein it is mentioned that the date of investigation assignment is of dt: 20/07/2016 and cause & place of death – Diabetes mellitus/HTN & pre-existing alcoholism. In its conclusions it was mentioned as under:
1. Detailed enquiries in this case has been made and it merged that LA had dies on 13-June-2015 due to high fever preceded by serious pre-existing ailments like diabetes and other associated problems due to heavy consumption of alcohol.
5. After taking lead from hospital that LA has taken treatment in the past. The IO visited family again and asked for LA’s medical papers and pressurized them too give medical papers otherwise claim may be rejected. The nominee handed over complete medical file of LA where LA’s entire medical papers are available which proves that LA had taken treatment from many hospitals including Nagpur medical file is attached with the report.
6. The School Leaving certificate –(SLC) of LA was given verified from school and found to be in order.
7. The LA fell under BPL family and family BPL ration card is attached as evidence. The LA didn’t have lands and his only source of income was betel shop which was being run from his residence.
Likewise the investigator has also verified death certificate and mentioned as under”
Verification of death certificate:
The investigator has verified the death certificate from the source of origin and it is in order. Copy of verified and attested death certificate is attached as ANNEXURE –F.
From the above discussion now only two grounds needs to be discussed, in view of admission of the mistake done by the opposite party regarding- submission of fake school certificate -(i) income mis-statement (BPL -category) and (ii) for pre-existing adverse health.
6. We verified the BPL Ration card copy submitted by the Opposite party which we find is of Shri Tejram Chauhan and late Dilip Chauhan is his son as shown the ration card. That too, at least when the husband of the complainant was of somewhere 27 years of age. Thus it cannot be presumed that the complainant’s husband was also presently in BPL category and more so there is no legal bar that a BPL category person cannot take term policy /life policy. Therefore, the opposite party defense regarding BPL category is rejected being devoid of any merit.
Secondly, the defense of pre-existing ailments. It is admitted fact that the age of the complainants husband was near about 45 years when he has taken the term policy. Here it is important to note the guideline taken from IRDA website regarding to pre-medical check –up which is herein reproduce for ready reference as under:
INSURANCE REGULATORY AND DEVELOPMENT AUTHORITY (HEALTH INSURANCE) REGULATIONS, 2013 notified by the GOVERNMENT OF INDIA, NEW DELHI, MONDAY, FEBRUARY 18, 2013/MAGHA 29, 1934
h. Cost of pre-insurance health check up
i. The cost of any pre-insurance medical examination shall generally form part of the expenses allowed in arriving at the premium. However in case of products with term of one year and less, if such cost is to be incurred by the insured, not less than 50% of such cost shall be borne by the insurer once the proposal is accepted, except in travel insurance policies where such costs need not be reimbursed.
ii. Insurers shall maintain a list of and the fees chargeable by, institutions where such pre insurance medical examination may be conducted, the reports from which will be accepted by them. Such list shall be furnished to the prospective policyholder at the time of pre-insurance medical examination.
7. The Opposite party is duty bound to inform the policy holder to take medical check-up before issuing any policy which would be beneficial to both the parties to avoid future complication. It would also help the insurance company to decide premium to be paid by the policy buyer. There is mandatory provision for pre-policy check-ups for first-time buyers above the age of 40-45 years to ensure that they are free from pre-existing diseases.
But this mandatory check-up never sounded an attractive proposition for policy buyers hence certain private insurance companies have come up with products that require no pre-policy medical check-ups. However, issuing policy without a mandatory pre-policy medical check-ups the insurance companies are indulging into unfair trade practices as the principle of uberrima fides meaning “utmost good faith” is applicable to both the parties - insured and insurer and there is provision to borne 50% of expenses by the insurer in case of one year term policy and to include the expenditure in premium in other types of policy. Thus the Opposite Party to save some money not informing the policy buyer to do compulsory medical pre-policy check-up, which amounts to short coming in the service provided by the Opposite Party and also indulging in unfair trade practice.
8. Now coming to the fact that the complainants husband-policy holder died due to dengue fever is an admitted fact as investigator found in his enquire with the neighbors. Though the Opposite Party has filed all other documents but not annexed the death certificate surreptitiously which would speaks volume regarding the cause of death? Therefore we take adverse inference against the opposite party and hold that the death of the complainant’s husband was due to dengue fever.
Again the medical papers submitted by the Opposite Party does not have any direct relation with the cause of death (dengue fever) and it is also not the position that the complainants husband was suffering from dengue fever before taking policy and he had suppressed the fact regarding that fever. It is clear that disease did not exist when the proposal form was filled. Clearly there is no suppression of material information in respect of this disease (dengue fever) which is main cause of death. The other disease VERTIGO and TYPE 2 DM & DCM WITH CCF is no direct nexus with the cause of death hence the repudiation is against the settled principles of law as no direct evidence is brought by the Opposite Party.
This view is also upheld by the Hon’ble National Consumer Disputes Redressal Commission New Delhi in case of Neelam Chopra Vs. LIC in Revision Petition No. 4461 of 2012 judgment dated 08/10/2018.
9. In view of findings in Para 05 to 08, we proceed to pass the following order.
ORDER
(1) Consumer complaint is partly allowed.
(2) It is hereby declared that the Opponents is deficient in rendering service to the complainant.
(3) The Opponents is directed to pay Rs. 2,00,000/-[Rupees Two Lakhs only] along with interest @ 8 % P.A. from 25/08/2016 date of wrongful repudiation to the complainant within 30 days from date of receipt of the order.
(4) The Opponents do pay an amount of Rs.20,000/- [Rupees Twenty Thousand only] to the complainant towards compensation for mental pain and agony.
(5) The Opponents do pay an amount of Rs.5000/- [Rupees Five Thousand only] towards costs of litigation
(6) Certified copies of this order be furnished to the parties forthwith.
