Tripura

StateCommission

A/2/2016

The Branch Manager , SBI Life Insurance Co.Ltd & Others. - Complainant(s)

Versus

Smt. Bina Ghosh & 3 Others. - Opp.Party(s)

Mr. Bhaskar Deb, Smt. Sujata Deb

07 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No. A/2/2016.

 

 

1. The Branch Manager,

SBI Life Insurance Co. Ltd., Central Processing Centre,

Kapas Bhavan, Plot No.3A, Sector No.10, CBD Belapur,

Navi Mumbai – 400614.

 

 

2. The Branch Manager,

SBI Life Insurance Co. Ltd.,

Joynagar, South Side of Fire Service Office,

P.O. Agartala, P.S. West Agartala,

Agartala, Tripura West, PIN – 799001.

 

 

                   ….    ….    ….    ….    Appellants/Petitioners.

 

                   Vs

 

1. Smt. Bina Ghosh,

W/O- Lt. Bimal Ch. Ghosh

 

 

2. Smt. Sushila Bala Ghosh

W/O- Lt. Rasaraj Ghosh.

 

3. Miss Mousumi Ghosh

D/O-Lt. Bimal Ch. Ghosh

 

4. Miss Puja Ghosh

D/O- Lt. Bimal Ch. Ghosh

 

All R/O-Vill-Camper Bazar, Hairmara, P.O- S.D. Mission, P.S- A.D. Nagar, Agartala, Tripura West, PIN-799003.

                              ….    ….    ….    ….    Respondents/Opposite Parties.

 

 

 

PRESENT

 

HON’BLE MR.JUSTICE S.BAIDYA,

PRESIDENT,

STATE COMMISSION

 

MRS. SOBHANA DATTA,

MEMBER,

STATE COMMISSION.

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

 

For the Appellants             :         Mr. Bhaskar Deb, Adv. Paramita Roy, Adv.

For the Respondent No.1    :         Mr. Anjan Kanti Pal, Adv. Mr. D.C. Roy, Adv.

Date of Hearing       :         19.03.2016.

Date of delivery of Judgment:       07.04.2016.     

J U D G M E N T

 

S. Baidya, J,

This appeal filed on 29.01.2016 by the appellants under section 15 of the Consumer Protection Act, 1986 is directed against the Judgment dated 30.12.2015 passed by the Ld. District Consumer Disputes Redressal Forum (in short District Forum), West Tripura, Agartala, in case No.CC-90/2014, whereby the Ld. District Forum allowed the application filed under section 12 of the Consumer Protection Act, 1986 directing the opposite party-Insurance Company, the appellants herein, to pay death benefit to the petitioner being legal heir and attorney of other legal heirs, the other petitioners with a further direction to pay Rs.50,000/- for deficiency of service and also for the cost of petition immediately payable within one month, if not paid, will carry interest @9% per annum. 

2. The brief fact of the case as narrated in the memo of appeal, is that Late Bimal Chandra Ghosh, insured was the husband of the petitioner no.1 who purchased the insurance policy from SBI Life Insurance Co. Ltd., Agartala which was effective on and from 08.01.2010 by submitting a proposal form on 18.12.2009, but the policy-holder died on 26.02.2012. It has been stated that after the death of the policy-holder Bimal Chandra Ghosh, his legal heirs’ claim from the appellant is denied and therefore, they filed the complaint before the Ld. District Forum which was disposed of in favour of the present respondents.  
3. It has also been stated in the memo of appeal that the appellants in the instant appeal has assailed the impugned judgment dated 30.12.2015 to be arbitrary, illegal and unsustainable in law. It has also been alleged that on the basis of the proposal form submitted by the Deceased Life Assured (DLA) and believing the information furnished therein to be true and accurate, the appellants have accepted the risk cover under the doctrine of Utmost Good Faith and issued policy No.16016037108 for a sum assured of Rs.3.00 lakhs with date of commencement of policy as on 08.01.2010.
4. It has also been alleged that as the risk needs to be assessed while accepting the proposal form for insurance cover, it is essential that the proposer or the person whose life has to be insured will give true and correct answers to the questions in the proposal form, but in the instant case, DLA answered negatively to all the questions in the medical questionnaire including question nos. 8(iii), 8(xii) and 8 (xiii).    
5. It has also been alleged that the proposal form is the primary document for assessment of risk and answer to each and every question therein is vital for the underwriter to decide whether the proposed life is to be insured or not and as such, any incorrect information in the proposal form certainly vitiates the interest of insurer and hence, the insurer is well within its rights to repudiate the claim whenever material facts are suppressed by the life assured.
6. It has also been alleged that the DLA died after 2 years 1 month and 18 days of the commencement of the said insurance policy and as such, the SBI Life Insurance Co. Ltd. enquired into the matter and found that the DLA was suffering from Diabetes Mellitus and Hypertension prior to the date of commencement of the policy, which has not been disclosed in the proposal form.
7. It has also been alleged that as per the prescription slip dated 30.07.2009 given by Dr. Chinmoy Datta, the DLA was a patient of Hypertension with Diabetes Mellitus and as per prescription slip dated 18.02.2011 given by Dr. Amitabh Ghosh of Apollo Hospital, the DLA was a patient of T2DM with Hypertension. Both these prescriptions clearly establish the pre-existing illness of the DLA. It has also been alleged that on the basis of the said evidence, that claim of the legal heirs of the DLA was repudiated, but being not satisfied with such repudiation of the claim, the present respondents being the complainants approached the Ld. District Forum for redressal of their grievance.   
8. It has also been alleged that the Ld. District Forum did not place any reliance upon the prescription dated 13.07.2009 of Dr. Chinmoy Datta on the ground that Dr. Chinmoy Datta was not produced before the Ld. Forum to support the prescription issued by him and also upon the prescription dated 18.02.2011 of Dr. Amitabha Ghosh alleging that the said prescription has no relevancy being dated after the purchase of the policy.
9. It has also been alleged that in spite of clear proof regarding the suppression of material facts by the DLA in the proposal form submitted for insurance policy, the Ld. District Forum failed to appreciate the same and passed the impugned judgment. Being aggrieved by and dissatisfied with the impugned judgment, the present appellants have preferred the instant appeal on the grounds that the Ld. Forum failed to consider that the appellants did conduct any medical examination of the DLA at the time of proposal for insurance and as such, the policy was not issued to the DLA basing on the medical fitness certificate and the policy was issued on non-medical basis relying on the statements contained in the proposal form duly filled in and signed by the DLA, that the family members of the DLA admitted that the DLA had many diseases and his condition was improving for last one year meaning thereby that at the time of purchasing the policy, the policy-holder gave false statement concerning his health status, that the Ld. Forum failed to appreciate the case of the appellants and arrived at a conclusion which is erroneous and illegal and therefore, is liable to be unsustainable in law, that the Ld. Forum failed to appreciate that the life insurance contract is a contract of ‘utmost good faith’ where the proposer is duty bound to disclose everything concerning his health, habits and other related matters which are within his knowledge at the time of making proposal, failing which the insurer has every right to repudiate the claim, that the Ld. Forum passed the impugned judgment, although the insurance contract of the DLA has been vitiated due to suppression of material facts, that the Ld. Forum failed to appreciate that the complaint is totally frivolous and contrary to well established law and binding judicial proceedings vis-à-vis the insurer’s right to repudiate the insurance claim on account of suppression of material facts, that the impugned judgment passed by the Ld. District Forum is vitiated for non-application of mind and as such, it is not sustainable in law and is liable to be set aside and hence, the present appellant has preferred the instant appeal.

 

Points for Consideration

11. The points for consideration are (i) whether the Ld. District Forum was proper, legal and justified in passing the award by the impugned judgment and (ii) whether the impugned judgment under challenge in this appeal is liable to be set aside as prayed for.

Decision with Reasons     

12. Both the points are taken up together for the sake of convenience and brevity.
13. Going through the pleadings of the parties, the documents, oral evidences and the impugned judgment, we find certain admitted facts. Admittedly, Bimal Chandra Ghosh, DLA was working as a constable under SAF (Special Armed Force). It is also admitted fact that during his life time he submitted a proposal form for insurance from SBI Life Insurance Co. Ltd., Agartala on 18.12.2009 and on the basis of that proposal form, the insurance policy was issued in favour of the DLA w.e.f. 08.01.2010. It is also admitted fact that the DLA died on 26.02.2012. It is also admitted fact that the complainant no.1-respondent no.1 is the widow of DLA and remaining complainants-respondents are other legal heirs of the DLA. It is also admitted fact that after the death of the DLA, the complainant no.1, the nominee of that policy submitted claim application before the insurance company claiming insurance benefit accrued upon the said insurance policy. It is also admitted fact that the claim of the complainants was repudiated by the SBI Life Insurance Co. Ltd. vide letter dated 31^st August, 2012 alleging that the DLA suppressed material facts in respect of clause 8(iii), 8(xii) and 8(xiii) in the proposal form concerning the health status of the DLA at the time of submission of proposal form for insurance. It is also admitted fact that against the letter of repudiation, the complainant filed a representation for reconsideration of their claim before Claims Review Committee, but the said Claims Review Committee also accepted the findings of the SBI Life Insurance Co. Ltd.
14. The Ld. Advocate for the appellant-Insurance Company submitted that the claim of the respondents, the legal heirs of the DLA Bimal Chandra Ghosh was repudiated on the ground of suppression of material facts in proposal form submitted for insurance policy. He also submitted that the DLA was suffering from Hypertension and Diabetes Mellitus at the time of submitting proposal form before the SBI Life Insurance for insurance policy. He also submitted that the DLA knowing fully well beforehand about his ailments answered in the negative to the question nos. 8 (iii), 8(xii) and 8(xiii) relating to his health status in the proposal form. He also submitted that the DLA died on 26.02.2012 and the policy was effective on and from 08.01.2010 on the basis of the proposal form submitted on 18.12.2009. He also submitted that in fact, the DLA died after 2 years 1 month 18 days of the commencement of the said SBI Life Insurance Policy. He also submitted that when the respondent No.1 submitted the claim application before the SBI Life Insurance Authority, the appellant engaged an investigator to enquire into the matter and on enquiry it was found that the DLA was suffering from Diabetes Mellitus and Hypertension prior to the date of commencement of the policy, which the DLA has not disclosed in the proposal form. He also submitted that the investigator collected the medical prescription dated 30.07.2009 given by Dr. Chinmoy Datta and also the prescription dated 18.02.2011 given by Dr. Amitabha Ghosh of Apollo Hospital wherefrom it has been established beyond doubt that the DLA at the time of submission of the proposal form was suffering from Hypertension and Diabetes Mellitus, but he intentionally and fraudulently suppressed the said material fact in the proposal form and thereby influenced the SBI Life Insurance Company to accept the said proposal form and issue the insurance policy in favour of the DLA relying on the statements disclosed by the DLA in the said proposal form.
15. The Ld. Advocate for the appellants also submitted that admittedly, the SBI Life Insurance Policy in question is non-medical in nature and in that case, the medical examination of the proposer for insurance is not at all necessary. He also submitted that following the said practice, no medical examination of the DLA was held, rather the appellant relying on the statement of the DLA as true accepted the same and issued the insurance policy in favour of the DLA.
16. The Ld. Counsel for the appellants also submitted that it is not the case that the DLA was totally an illiterate person, rather he was working as constable under Tripura Special Armed Force and as such, as to what were written in answers to the questions mentioned in the proposal form submitted on 18.12.2009 by the proposer Bimal Chandra Ghosh was absolutely and exclusively known to himself and accordingly, it shall be presumed that the answers written to the questions mentioned in point no.8 of the proposal form was according to the version of the proposer who clearly answered in the negative in respect of question nos.8(iii), 8(xii) and 8(xiii) of the proposal form.
17. The Ld. Counsel for the appellants also submitted referring to Annexure-D, photocopy of the medical prescription dated 30.07.2009 issued by the Dr. Chinmoy Datta in the name of Bimal Chandra Ghosh who was, as per said prescription, suffering from Hypertension and Diabetes Mellitus, but the DLA in the proposal form clearly suppressed his diseases. He also submitted referring to Annexure-E, photocopy of medical prescription dated 18.02.2011 issued by Dr. Amitabha Ghosh of Apollo Gleneagles Hospital in the name of Bimal Chandra Ghosh that the said prescription clearly indicates that the DLA was suffering from T2DM with HTN (Hypertension). He also submitted that both the medical prescriptions have clearly established that the DLA was suffering from Hypertension and Diabetes Mellitus at the time of submission of the proposal form for insurance. He also submitted that the LA (Life Assured) Bimal Chandra Ghosh in the proposal form suppressed the material fact concerning his health status and thereby influenced the SBI Life Insurance Authority to accept the proposal form believing the statement concerning his health status as mentioned in the proposal form as true. He also submitted that this suppression of material fact has come to light through an investigation conducted by the investigator appointed by the appellant insurance authority. He also submitted that as the LA intentionally and fraudulently suppressed the material fact regarding his diseases in the proposal form, the appellant insurance authority was well within its right to repudiate the claim of the present respondents, but the Ld. District Forum erroneously ignored the suppression of the said material fact and passed the impugned judgment illegally which cannot be sustained in the eye of law and therefore, it is liable to be set aside.
18. The Ld. Counsel for the appellants has relied on the decision of the Chhattisgarh State Consumer Disputes Redressal Commission pronounced on 21^st February, 2014 between the LICI Vs Smt. Mathura Bai Nayak and also the decision of the Hon’ble Supreme of India pronounced on 10^th July, 2009 between Satwant Kaur Sandhu Vs New India Insurance Company Ltd. in Civil Appeal No.2776 of 2002. He also submitted that the principal of law laid down in the above cited two decisions renders the decision of the Ld. District Forum given in the impugned judgment unsustainable in law and therefore, the impugned judgment is liable to be set aside and the appeal should be allowed.
19. The Ld. Counsel for the respondents submitted that the respondents-complainants do not know as to who was the investigator allegedly appointed by the SBI Life Insurance Authority and also wherefrom the alleged investigator collected the photocopy of two medical prescriptions (Annexure-D & E). He also submitted that the appellants failed to examine the said Dr. Chinmoy Datta and Dr. Amitabha Ghosh for establishing that the LA Bimal Chandra Ghosh was actually suffering from diseases like Hypertension and Diabetes Mellitus etc. at the time when the LA submitted the proposal form for insurance. He also submitted that the photocopy of the medical prescription issued by the Dr. Amitabha Ghosh was of 18.02.2011, but the proposal form was admittedly submitted by LA on 18.12.2009. As the said prescription dated 18.02.2011 was subsequent to the date of submission of proposal form, it has got no relevancy in the instant case.
20. The Ld. Counsel for the respondents also submitted that the alleged investigator has not been examined by the appellants for establishing that the said investigator actually collected in proper way the alleged photocopy of the medical prescription dated 30.07.2009 concerning the health condition of the DLA. He also submitted that even the appellant-opposite party, SBI Life Insurance failed to produce the alleged investigation report, if any submitted by the alleged investigator before the appellant authority. He also submitted that rather the appellant-opposite party produced one office note in the name of Claim Investigation Report (Annexure-C) which itself discloses that LA had been attending his office duty normally. He also submitted that it is not the case of the appellants that the DLA before the submission of the proposal form was bed-ridden or hospitalized for any period in connection with his medical treatment like Hypertension or Diabetes Mellitus.
21. The Ld. Counsel for the respondents also submitted that as per proposal form, the educational qualification of the LA was SSLC and he was a mere constable. So, in that circumstance, it cannot be said that the LA was a good literate person to understand the entire contents of the proposal form. He also submitted that there is nothing to show that the said proposal form after being filled in was read over and explained to the proposer (LA) before its submission and as such, it cannot be said that the LA suppressed anything intentionally and fraudulently regarding his health status in the proposal form as alleged by the appellants. He also submitted that barring the photocopy of the prescription dated 30.07.2009 (Annexure-D), practically the appellant-opposite party miserably failed to adduce any cogent and reliable evidences for holding that the DLA at the time of submission of the proposal form was suffering from alleged Hypertension and Diabetes Mellitus. He also submitted that the Ld. District Forum meticulously considered the entire facts and circumstances of the case and rightly did not accept the version of the appellants holding that the repudiation of the claim of the respondents-complainants was not legal and justified and accordingly, passed the impugned judgment which from all standpoints, being proper, legal and justified, should be affirmed and the appeal, having no merit, should be dismissed.
22. The Ld. Counsel for the respondents has relied on the decision of the Hon’ble Jammu & Kashmir High Court reported in 2015 (3) JKJ301 and also the decision of the Hon’ble National Consumer Disputes Redressal Commission published on 9^th September, 2008 in revision petition No.2049 of 2000 between Smt. Santosh Kanwar Vs LICI. He also submitted that in the present facts and circumstances of the case, the decisions referred to by the Ld. Counsel for the appellant are not applicable in the instant appeal, rather the principle of law enunciated in the decisions referred from the side of the respondents are appropriately applicable in the instant appeal and as such, appeal preferred by the SBI Life Insurance Authority deserves to be dismissed.
23. The ground of repudiation of the claim of the complainants is that the L.A. suppressed material facts concerning his health condition by concealing his ailments like Hypertension and Diabetes Mellitus in the proposal form submitted by him for insurance and the alleged concealment is in respect of answering to questions nos. 8(iii), 8(xii) and 8(xiii) of the said proposal form. So, it is found necessary to see as to what are those questions which are as follows:

Question no. 8(iii) - During the last 10 years, have you undergone or advised to undergo hospitalisation, an operation or any investigation or tests or medical treatment? The answer given was “No”.

Question no. 8(xii) – Do you have High Blood Pressure or have you ever suffered or treated or have you been advised to undergo investigation for High Blood Pressure? The answer given was “No”.

Question no. 8 (xiii) – Do you have Diabetes or have you ever suffered or treated or have you been advised to undergo investigation or Diabetes? The answer noted was “No”.

24. We have gone through the entire materials produced and submissions of the Ld. Advocates of both sides made before us. From the photocopy of proposal form (Annexure-A) we find that it was filled in by the bank and not by the LA himself. The LA Bimal Chandra Ghosh put his signature in English, but the way or the manner in which the LA put his signature does not establish that he was well conversant in English as a well literate person. There is the point no.12 in the proposal form which runs as follows:- “Declaration When the proposal Form is filled by a person other than the proposer/proposer signs in a vernacular language/proposer is illiterate.”  This point no.12 provides for explaining the content of the proposal form to the proposer and not only so, this point no.12 demands a signature of the person making such declaration, but this point no.12 is found left unfulfilled. So, it cannot be said under any stretch of imagination that the bank employee who filled the proposal form explained the content of the proposal form to the LA before putting his signature thereon. The appellant-opposite party failed to examine the said bank employee for establishing that he filled the answers to the question or point no.8 of the proposal form as per the statement of the proposer Bimal Chandra Ghosh regarding his health status. From that standpoint it can be said without any hesitation that the LA/proposer Bimal Chandra Ghosh was practically not aware as to the answers noted by the bank employee to the questions under question no.8 of the proposal form including clause (iii), (xii) and (xiii) of question no.8.
25. Admittedly, the investigation report has not been produced before the Forum. Even the office note on claim investigation report does not disclose as to who was engaged by the appellant as investigator to investigate into the matter. The appellant-opposite party examined one Debjyoti Choudhury as the O.P.W.1 (O.P.No.2) on behalf of O.P.No.1. The O.P.W.1 is the Branch Manager, SBI Life Insurance Company Ltd., Joynagar, West Agartala P.S., West Tripura. Obviously, he was not the alleged investigator and as such, it can be said that this O.P.W.1 (O.P.No.2) has got no personal knowledge as to how the alleged investigation was conducted by the investigator, if any at all, appointed by the appellant. In that case, the examination of the said investigator before the Ld. Forum was highly essential, but the appellant-opposite party miserably failed to examine that investigator as a witness for the opposite party. Even the opposite party did not give any explanation as to why the said investigator or the alleged investigation report was not produced before the Ld. Forum. In that case, whatever noted in the office note as claim investigation report (Annexure-C) is nothing, but a hearsay statement which carries no evidentially value in the eye of law.
26. As per said office note (Annexure-C), the photocopy of two medical prescriptions (Annexure-D & E) were given to the investigator by the family members of the DLA. The PW-1 (complainant-respondent No.1) Smt. Bina Ghosh was examined in the Ld. Forum. The appellant got this witness in the witness-box, but the appellant miserably failed to secure an answer from the said PW-1 by way of putting any question that she handed over the said two photocopies of medical prescriptions concerning the alleged medical treatment of LA to the alleged investigator.
27. Admittedly, the DLA was a constable under SAF, Tripura. The appellant-opposite party failed to secure any document from the office of the LA for proving that the DLA was on leave or advised to remain on leave for any such sufferings from Hypertension or Diabetes Mellitus. As the photocopy of the medical prescription of Dr. Amitabha Ghosh (Annexure-E) was subsequent to the date of submission of the proposal form, it has got no relevancy in the instant case, because any person may suffer or may attack with any serious disease after the date of the submission of the proposal form for insurance, but that subsequent suffering from aliment does not establish that the proposer was suffering from any serious ailment at the time when the proposal form was submitted by him for insurance. So, the Annexure-E is found no helpful to the appellant. In fact, there is nothing on record to draw any presumption as to wherefrom the appellant collected the Annexure-D. It has not been proved that the PW-1 handed over the same to the alleged investigator or to the appellant. So, barring this photocopy of medical prescription of Dr. Chinmoy Datta (Annexure-D), the appellant miserably failed to produce any cogent and believable evidence for establishing that at the time of submission of the proposal form, the LA was suffering from Hypertension and Diabetes Mellitus and that alleged ailments have been suppressed by him in the proposal form while answering to the question no.8 of the said form.
28. On perusal of the decision of the Chhattisgarh State Consumer Disputes Redressal Commission referred by the Ld. Advocate for the appellants, it appears that in the said referred case the insurance company produced two types of vital documents of which one was a medical certificate for Government servant in Form No.3 in which it was clearly mentioned that the DLA was suffering from Hypertension+DM+SLD and was advised for bed rest for six months and the others are two leave applications form for 60 days+60 days. It further appears that relying on the said two types of documents, the Hon’ble Commission allowed the appeal and set aside the judgment appealed against holding that the DLA has suppressed material facts regarding his sufferance from diseases like Hypertension, Diabetes Mellitus and SLD and that material fact has been suppressed by the L.A. in his proposal form. In the instant case, barring a photocopy of a prescription whose authenticity is questionable for non-examination of the doctor and other corroborative documents, there is no other material evidence produced by the Insurance Authority for establishing that the LA has suppressed his suffering from serious illness in the proposal form at the time when it was submitted by him for insurance. So, the facts and circumstances of the instant case is altogether different from the facts and circumstances of the referred case. Accordingly, we are of the view that the decision of the Hon’ble State Commission referred by the Ld. Counsel for the appellants is not applicable in the instant case.
29. We have gone through the decision of the Hon’ble Supreme Court of India pronounced in Civil Appeal No.2776 of 2002 (Supra) referred by the Ld. Counsel for the appellants. In the said decision the definitions “proposal form” and “material” have been defined.

It has been held that “Proposal Form" means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake the risk, and in the event of acceptance of the risk, to determine the rates, terms and conditions of a cover to be granted.”

The term "material fact" is not defined in the Act and, therefore, it has been understood and explained by the Courts in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact which goes to the root of the Contract of Insurance and has a bearing on the risk involved would be "material".

It has also been held “Material” for the purpose of Regulation of the Insurance Regulatory and Development Authority (Protection of Policyholders' Interests) Regulations, 2002 shall mean and include all important, essential and relevant information in the context of underwriting the risk to be covered by the insurer." In the said referred case, it has also been held in paragraph 17 thereof, it transpires that the insurance company made enquiries from Madras Institute of Nephrology (Vijaya Health Centre) and obtained a certificate stating that the deceased was a case of Chronic Renal Failure/Diabetic Nephropathy and was also on regular haemodialysis at his place and that DLA was a known diabetic for the last 16 years. It further appears that the said DLA died within 7 (seven) months from the date of submission of the proposal form for the said mediclaim policy. It further appears from the said referred case that the medical history of the deceased was recorded in the said certificate of Vijaya Health Centre. It also appears that the claim has not been succeeded. In the instant case, the appellants could not collect any document from the AGMC & GBP Hospital where the LA died. The appellant also could not collect any official document from the office of the DLA showing any sufferance of the DLA from any illness at the time when the proposal form was submitted. In the instant case, only one photocopy of medical prescription of Dr. Chinmony Datta in the name of DLA has been produced from the side of the appellants, but its origin remains in abstract condition. Barring the said piece of prescription (Annexure-D), no other cogent and reliable evidences are forthcoming for establishing that the DLA was suffering from Hypertension and Diabetes Mellitus at the time when the proposal form was submitted and the DLA suppressed that material fact of his suffering from the above diseases in the proposal form intentionally and fraudulently with a view to influence the appellant to accept the proposal. So, it is clear that the facts and circumstances of the referred case is altogether different from the facts and circumstances of the instant case and as such, the principal of law laid down in the above referred case is not applicable in the instant case.

30. Going through the citation of AIR 1989 AP39 referred by the Ld. Counsel for the respondents we find that the appeals mentioned in the above citation are practically dealt with the matter of revival of insurance policy and accordingly, the principle of law laid down in the said referred case is not applicable in the instant case as there involves no question of revival of insurance policy.
31. It has been held in the decision reported in 2015 (3) JKJ301 (Supra) that in the absence of evidences of the investigator or doctor on the basis of which the petitioner repudiated the insurance claim of respondent no.2, it was not open to the petitioner to repudiate the claim of respondent no.2. In the instant case, the Insurance Company miserably failed to examine either the alleged investigator or the alleged Dr. Chinmoy Datta. The medical prescription (Annexure-D) was issued by Dr. Chinmoy Datta who has not been examined by the Appellant Insurance Authority in the District Forum for establishing that the repudiation of the claim of the present respondents was legal and justified. That being the position, the principal of law laid down by the Hon’ble Jammu & Kashmir High Court cited above is applicable in the instant case.
32. The law in the case on hand is the section 45 of the Insurance Act, 1938 which provides as follows:-

“No policy of life insurance effected before the commencement of this Act shall, after the expiry of 2 years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee or friend of the insured, or any other document leading to the issue of the policy, was inaccurate or false, unless, the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose;

Provided that nothing in the section shall prevent the insurer from calling for proof of age at any time, if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life assured was incorrectly stated in the proposal.”  

33. Going through the section 45 of the insurance Act we find that there are three conditions for applicability of the second part of the section namely (a) the statement must be on a material matter or must suppressed facts which it was material to disclose; (b) the suppression must be fraudulently made by the policy-holder; (c) the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.
34. According to the principal of law laid down by the Hon’ble National Commission in revision petition no.2049 of 2000 in the decision pronounced on 9^th September, 2008 in between Santosh Kanwar Vs LICI referred by the Ld. Counsel for the respondents, the burden lies heavily upon the Insurance Company to prove the said three conditions included in section 45 of the Insurance Act, 1938.
35. Admittedly, the LA Bimal Chandra Ghosh submitted proposal form for insurance on 18.12.2009 and the said insurance policy became effective on and from 08.01.2010 for an assured sum of Rs. 3.00 lakhs and the LA died on 26.02.2012. So, it is palpable that two years were passed as provided in first part of section 45 of the Insurance Act, 1938. But the bone of contention is in respect of second part section 45 of the said Act. In the instant case, it has already been mentioned that the Insurance Company miserably failed to examine the investigator, if any appointed by them to inquire into the matter. The doctor who allegedly treated the LA before date of submission of the proposal form has not been examined. The alleged investigation report also has not been produced and proved. The O.P.W.1 is found devoid of any personal knowledge about the alleged investigation. Admittedly, LA was a constable under SAF, Tripura. No leave statement or any official document from the office of the DLA showing that the DLA at the relevant time was either in bed rest or suffering from any disease like Hypertension, Diabetes Mellitus etc. for which he was absent from his official duty, was obtained and produced before the Ld. District Forum by the Insurance Authority. Even no medical document from the AGMC & GBP Hospital, Agartala where the DLA died, was collected and produced before the Ld. District Forum by the appellant. Barring a photocopy of medical prescription of Dr. Chinmoy Datta (Annexure-D), no other iota of evidence either oral or documentary has been adduced by the appellant for establishing that the LA was suffering from alleged Hypertension and Diabetes Mellitus at the time of submitting the proposal form and the LA suppressed his sufferance from alleged ailments in the proposal form while submitting it for insurance. When the burden lies heavily upon the appellants to prove that the LA Bimal Chandra Ghosh intentionally made a false statement regarding his alleged illness in the proposal form and he did it fraudulently with a view to influence the appellant to accept the statement made in the proposal form as true for issuance of the policy, in that case, a mere photocopy of the medical prescription of Dr. Chinmoy Datta cannot be considered as cogent and material evidence for holding that the LA suppressed material fact regarding his health status in the proposal form for insurance.      
36. We have gone through the impugned judgment and found that the Ld. Forum rightly held that the Insurance Company miserably failed to establish that the LA made false statement about his health condition while purchasing the policy. Be that as it may, in view of the discussions made above, we are of the view that the findings of the Ld. District Forum that the repudiation of the claim of the respondent-complainants by the SBI Life Insurance Authority was illegal, is proper and justified. So, the respondents-complainants are entitled to get the death benefit of DLA i.e. the sum assured of Rs.3.00 lakhs. Considering the mental agony and harassment of the complainants, we are also of the view that the awarding of compensation of Rs.50,000/- for harassment and deficiency in service on the part of the O.P.-appellant-Insurance Company including the cost of litigation is found justified. That being the position, we are also of the view that the impugned judgment is liable to be affirmed and the appeal having no merit should be dismissed.
37. In the result, the appeal fails. The impugned judgment dated 30.12.2015 passed by the Ld. District Forum in case no.CC-90/2014 is hereby affirmed. There is no order as to costs.

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura