DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE No.04/2008. Date of filing of the Case: 08.01.2008 Complainant | Opposite Parties | Anju Chakraborty Wife of Dipak Chakraborty Vill. Pirojpur, (Women’s College Road), P.S. English Bazar, P.O. & Dist. Malda. | 1. | Senior Divisional Manager Life Insurance Corporation of India, Divisional Office, P.O. & Dist. Jalpaiguri, Pin No.735101. | 2. | Branch Manager Life Insurance Corporation of India, Malda Branch – II, Sukanta More, N.H. 34, P.O. Jhaljhalia, Dist. Malda. Pin No.732102. |
Present: | 1. | Shri A.K. Sinha, Member | 2. | Smt. Sumana Das, Member | | |
For the Petitioner : Amar Kr. Mishra, Advocate. For the O.Ps.: Narendra Mohan Majumder, Advocate. Order No.15 Dt.17.07.2008 The petitioner’s case in a narrow compass is that her son purchased one LIC Policy bearing No.452742144 on 07.01.2002 with sum assured of Rs.40,000/- for a term 20 years and she was selected as nominee. It is alleged that prior to acceptance of the proposal form the insured Saikat Chakraborty was checked up medically by the panel doctor of LIC and after he was found physically fit, the policy in question was issued on payment of policy premium. On 22.11.2006 the insured Saikat Chakraborty died at Agarpara, in the District of 24 Parganas (N) due to cardio respiratory failure. After the death of the insured the petitioner filed claimed petition on 26.12.2006 which was accepted by O.P. No.2 on the selfsame date but the O.P. No.1 (Sr. Divisional Manager, Jalpaiguri, LIC) vide his Memo No.JDO/MKtg/D.C. claim repdn-666/13-08-2007 dated 30.7.07 informed the petitioner that LICS has decided to repudiate all liability under the policy and this gives rise to the present petition for the reliefs as have made in the petition of complaint. Both the O.P. No.1 and 2 contest the case by filing joint written version denying all material allegations contending inter-alia that the claim has been repudiated by LICI on the ground of suppression of material fact i.e. suppression of previous disease of the deceased insured which has been evident from treatment documents. The O.Ps. alleged that at the time of signing the proposal form of LICI the deceased was well aware of his disease. “Bronchial Asthma” and treatment at Sadar Hospital Malda and had intentionally suppressed the fact to defraud LICI and hence this petition is liable to be rejected with cost. On pleadings of both parties the following points have emerged for effective disposal of the case. 1) Whether the service of the O.Ps. suffers from any deficiency? 2) Whether the petitioner is entitled to get the reliefs as prayed for? :DECISION WITH REASONS: Points No.1 & 2: Both the points are taken together for simultaneous disposal as they are interrelated. At the outset let us analyse the evidences put forward by the petitioner to substantiate his claim. The petitioner in her affidavit in chief claimed that the proposal form was filled up by one Ranjit Das, the agent of LIC and her deceased son only put his signature. The original policy documents alongwith claim form have been sent to Divisional office LICI at Jalpaiguri. The premium of the policy was paid till 2006. It is also stated that her son Saikat expired on 22.11.2006 at Agarpara, in the District of 24 Parganas (N) due to cardio respiratory failure. She submitted claim form with all relevant documents to O.P. No.2 on 26.12.2006 but the O.Ps. have repudiated her claim as nominee by a letter dated 30.7.2007. She has denied that her deceased son was a patient of Bronchial Asthma prior to subscribing the policy, she has submitted two discharge certificate relating to admission & treatment of her son at Malda Sadar Hospital in reply to the letter dated 9.2.2007 of the O.Ps’. claims department. It is also denied that her son deliberately made misstatement and with held material information regarding his health at the time of filling up proposal form. She has claimed that she is entitled to the reliefs as prayed for. Ld. advocate for the O.Ps. submitted that personal statement regarding health of the deceased insured as has been made on 7.1.2002 is absolutely false and there was mis-statement of having good health. It is also submitted that the policy holder having given deliberately false declarations of good health has committed breach of confidence “uberrima fides i.e that the contract of utmost good faith. Hence, claimed that the petition is liable to be dismissed due to non-disclosure as well as mis representation of material fact by the deceased. Having regard to the observations of National Commission in Revision petition No.2148, 2232, 1260 & 1261 of 2003 referred to 2005 CTJ 1008 (CP) (NCDRC) in para 13 that “The onus probandi, in case of fraudulent suppression of material facts rests heavily on party alleging namely the insurer ……….. Burden is cast on the insurer to show that the statement was on a material matter or facts have been suppressed which it was material for the policy holder to disclose”. Let us discuss as to how the O.Ps. have discharged their burden to show that the statement was on a material matter or facts have been suppressed and mis-statement was fraudulently made by the policy holder with the knowledge of the falsity of statement or that the suppression was of material facts which had not been disclosed. The O.Ps. have filed affidavit in chief. It is admitted that on receipt of death certificate of deceased issued by Panihati Municipality on 15.12.2006 and the claim form B (No.3784) completed by Dr. Sumit Karmakar Anandaloke DNB Road, Agarpara, 24 Parganas (N), the primary cause of death was known to be Cardio Respiratory failure and the secondary cause was Acquite Myocardial Infection. The death certificate was received by the O.Ps. on 26.12.2006 which has been filed with the petition of complaints. The medical attendance certificate issued by Dr. Sumit Karmakar referred to above has been marked Ext.D. A perusal of the Ext.D para 6, it appears that Dr. Karmakar has answered to the prescribed questions:- 1. What other disease or illness (i) preceded (ii) or co existed with that which immediately caused his death? Answer is (i) Chronic Obstructive pulmonary disease (ii) Bronchial asthma. Question (a) Date when first observed. Ans (a) Since child hood. Question (b) By whom treated. Ans (b) local doctor. Question (c) – By whom history reported to you? Ans. (C) Relatives. The O.Ps. in course of investigation issued memo No.JDO/Claims/dated 9.2.2007 requested the petitioner to submit all the treatment particulars of the insured pertaining to treatment from 7.1.1999 to 7.1.2002 for Bronchial Asthma & COPD which is marked Ext.E. The O.Ps. has also filed the xerox copy of letter of the petitioner dated 27.4.2007 for submitting discharge certificate of hospitalization on 15.11.1999 to 17.11.1999 and 16.2.2001 to 19.2.2001 for Bronchial Asthma (Ext.F). Discharge certificate of Malda District Hospital in the name of Saikat Chakraborty for treatment at the hospital from 16.11.1999 to 17.11.2001 and from 16.2.2001 to 19.2.2001 marked Ext.G series. On scrutiny of the Ext.G series its appears that deceased insured was admitted to Malda Sadar Hospital on the above two occasion for his treatment of Bronchial Asthma which have also been corroborated by the petitioner in her letter vide Ext.F. Her signature was marked F/1. The O.Ps. have filed xerox copy of the proposal form of deceased insured Saikat Chakraborty dated 7.1.2002 which is marked Ext.A. A perusal of Ext.G series submitted by the petitioner alongwith her letter (Ext.F) it cannot be believed by any stretch of imagination that the deceased insured had not been suffering from Bronchial Asthma since 16.11.1999 to 19.02.2001 and for treatment of such disease he had to be admitted at Malda Sadar Hospital on two occasions during the above period (Ext.G series). But strange enough to note that in question No.11 (a)(b) (d)(i) (Personal History) of the Proposal Form (Ext.A) the insured made mis-statement regarding treatment of any ailment during last five years, admission to any hospital / nursing home, suffering from ailment pertaining to liver, lungs etc and about usual state of health. In the cross examination the O.P.W. – 1 Asst. Administrative Officer LICI stated that it is not mandatory to give declaration by the person concern filling up the proposal form if the same is signed in English by the declarent. Ext.A also reveals that agent Mrinmoyee Das (Saha) has given a declaration that all the contents of the form has been explained to the insured and truthfully recorded the answers. In view of the above facts and circumstances it can be safely said that the deceased insured knew and aware at the time of filling up the proposal from that he was a chronic patient of Bronchial Asthma which is a disease of lungs and has been suffering from the disease. Inspite of the fact he made mis-statement in column No.11 (personal history) of the proposal form. The documents collected from attending doctor and Hospital regarding pre-existing disease of the insured have constituted strong ground to establish the direct nexus between the death and the disease. Having given our anxious consideration over the matter supra we conclude that the policyholder has given mis-statement in column 11 (a)(b)(d)(i) (personal history) of the proposal from and thereby committed breach of confidence between insurer and the insured. The O.Ps. have been able to prove their case that the insurance policy was not based on utmost good faith and there is suppression of material facts. This Forum holds that the service of the O.Ps. do not suffer from deficiency and the petition is liable to be dismissed. Both the points thus disposed of. Proper fees have been paid. Hence, ordered, that Malda D.F. Case No.4/2008 is dismissed on contest against both the O.Ps. (Senior Divisional Manager, Life Insurance Corporation of India, Divisional Office, P.O. & Dist. Jalpaiguri, Pin No.735101 and Branch Manager, Life Insurance Corporation of India, Malda Branch – II, Sukanta More, N.H. 34, P.O. Jhaljhalia, Dist. Malda. Pin No.732102). In the peculiar circumstances there will be no order as to cost. Let copy of order be given to both parties free of cost at once. Sd/- Sd/- Sumana Das A. K. Sinha Member Member D.C.D.R.F., Malda. D.C.D.R.F., Malda. | 
