West Bengal

Paschim Midnapore

CC/84/2016

Sri Arpan Lodha - Complainant(s)

Versus

Sr. Divisional Manager, LIC of India - Opp.Party(s)

Kushal Mishra

04 Jan 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

     Bibekananda Pramanik, President,

     Pulak Kumar Singha, Member. 

and 

   Sagarika Sarkar, Member.

 

Complaint Case No.84/2016

 

             Sri Arpan Lodha, S/o Late Kamal Kishore Lodha, Vill. & P.O. & P.S. Salboni,

             District - Paschim Medinipur, PIN-721147.   

                                                                                                                    ………..……Complainant.

                                                                              Vs.

1. Sr. Divisional Manager, LIC of India, Kharagpur Division, Claims Department, Near Lal Bungalow, P.O. Nimpura, Kharagpur, Medinipur (W), PIN-721304,
2. The Zonal Manager, LIC of India, Eastern Zonal Office, 4, C.R. Avenue, Hindustan Building, Kolkata-700 072.

                                                                                                 .....……….….Opp. Parties.                                                    

              For the Complainant: Mr.  Kushal Mishra, Advocate.

             For the O.P.               : Mr. Diptendu Ghosh, Advocate.

 

Decided on: -04/01/2018

                               

ORDER

                          Bibekananda Pramanik, President –This consumer complaint u/s 12 of the C.P. Act has been filed by the complainant Sri Arpan Lodha against the above named O.Ps, alleging deficiency in service on their part.

              Complainant’s case, in brief, is as follows:-

                Kamal Kishore Lodha, since deceased, the father of the complainant Arpan Lodha, purchased an insurance policy being no.459384103 from the O.P.-LICI after submission of the proposal form.  For initiation of the said insurance policy, the office of the O.Ps directed the insured to get himself examined by their own doctors at their own diagnostic centre and accordingly Kamal Kishore Lodah went to Astha Diagnostic &

Contd…………………..P/2

 

 

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Analytical Centre at Rabindranagar, Paschim Medinipur on 31/03/2013 and all necessary medical tests were done and certified by Dr. P.K. Giri and verified by Dr.T.K. Chakraborty under the supervision of medical examiner Dr.S.S. Roy of the O.Ps.  From such report, it was found that all parameters were within normal value.  Kamal Kishore Lodah, the father of the complainant, was also personally examined by Dr. S.S. Roy, Medical Examiner of the O.Ps at Astha Diagnostic & Analytical Centre at Rabindranagar, Paschim Medinipur.  After verifying all health related information given by the father of the complainant through the authorized doctor and pathological centre of the O.Ps and after having been satisfied about the health condition of the insured, the O.Ps accepted the proposal and only thereafter the O.Ps issued the insurance policy no. 459384103 in favour of the deceased- insured.  It is stated that from the report dated 31/03/2013, it would be found that Blood Glucose Level (F) of the insured was found to be 80 mg/dl which is well within the normal value.  The deceased Kamal Kishore Lodha was a person aged 52 years having body weight of 76 kgs. and cannot be said to be suffering from obesity.  The deceased father of the complainant also purchased several other insurance policies from the O.Ps and quite naturally the database of the O.P in respect of the health related and other information of the father of the complainant was known to the O.Ps and those were often referred to and consulted with.  After the death of the father of the complainant, a claim was registered against the insurance policy with the O.Ps but the O.Ps repudiated the claim by their letter dated 12/09/2015.  The complainant thereafter made representation before the higher authority of the O.Ps against such repudiation which was also turned down.  From the letter of repudiation dated 12/09/2015, it is found that the O.Ps have tried to ascribe false allegation upon the deceased father of the complainant for withholding material information regarding chronic diabetes and obesity.  It is stated that the father of the complainant was admitted in the hospital on the date of his death at 01.55 a.m. under a very critical condition due to cardio respiratory failure.  He died within 15 minutes before having any kind of medical test.  He was also not in a condition to talk at that time.  The complainant and his mother were not in a state of talking at such sudden shocking incident.  Moreover immediately on reaching the hospital, they were asked to bring an injection and the complainant and his brother immediately went to find out the injection.  Some of the neighbours completed all the paraphernalia at the time of admission.  They might have stated some statements regarding the deceased father of the complainant to the doctor as of their own and without having any specific knowledge about the physical state of the deceased father of the complainant.  The statement of medical attendant regarding diabetes and obesity of the deceased father of the complainant is devoid of any medical evidence and was not the statement of the deceased father of the complainant or of any of his family

Contd…………………..P/3

 

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members.  It is stated that actually he was not suffering from diabetes or obesity.  O.Ps have no right to repudiate the just and proper claim of the complainant on some false and frivolous ground, especially when there is specific medical reports accepted by the O.Ps which prove the grounds of repudiation to be baseless and incorrect.  The complainant is the nominee of the policy in question and consumer of the O.Ps.  Such act of repudiation of a just and lawful claim is an act of deficiency in service on the part of the O.Ps and hence the complaint, praying for directing the O.Ps to pay the entire insured amount of Rs.15,00,000/- to the complainant and an award of compensation of Rs.2,00,000/- and an award of cost and other reliefs.     

               Both the opposite parties have contested this case by filling a joint written version.  

                   Denying and disputing the case of the complainant, it is the specific case of the O.P.-LICI that Kamal Kishore Lodha purchased one LIC policy being no. 459384103 on 23/05/2013 for a sum assured of Rs.15,00,000/- from the O.P.-LICI and he made his son Arpan Lodha, the complainant, as nominee of the said policy.  At the time of the purchase of the said policy and during filling up the proposal form, Kamal Kishore Lodha, the insured had suppressed material facts in respect of his health condition regarding his long suffering of ailments and the fact that he was a patient of known diabetes and that he had been suffering from obesity, abdominal pain and chest pain etc.  He was suffering from diabetes with obesity since long and it was his chronic disease and by that time several complications had developed and resulting of such complications, Kamal Kishore Lodha died on 11/12/2014 at 2.10 a.m. at Salboni Rural Hospital.  He was hospitalized in the said hospital on 11/12/2014 with the problem of breathlessness in case of diabetes with obesity, abdominal pain, sweating and chest pain.  The attending doctor namely Dr. Swarnali Dey issued death certificate stating that the cause of death of Kamal Kishore Lodha was “cardio respiratory failure in case of chronic diabetes and obesity”. During enquiry period by the LICI, the Block Medical Officer of Health, Salboni R.H. sent a letter dated 20/08/2015 vide memo no.444 to the O.P.-LICI thereby stating the aforesaid facts and cause of death of Kamal Kishore Lodha.  It is stated that the blood sugar (fasting) of the life assured on 31/03/2013 done at Astha Diagnostic Centre does not necessarily mean that he was not under medication.  It is stated that with the use of insulin or any other appropriate medicine, the said report of blood sugar of 80 mg/dl at that point of time is not unusual.  From that report it cannot be conclusively said that the patient was not a chronic diabetes.  It is stated that Kamal Kishore Lodha was suffering from diabetes with obesity since long back and the said fact was deliberately suppressed by him and thereby misguided the O.P.-LICI.  Within 1 year 6 months 18 days of commencement of the said

Contd…………………..P/4

 

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policy, the proposer -insured Kamal Kishore Lodha died and before his death,  he only paid the first premium which casts a great doubt.  It is stated that if the insured disclosed his illness and treatment etc. as per requirement, then O.P.-LICI might have not issued the policy in his favour.   It is stated that Kamal Kishore Lodha purchased another three policies in quick succession which gives rise to so many suspicions because of deterioration of health, the said policies were taken by the proposer.  In the aforesaid reasons, O.P-LICI repudiated the claim of the present complainant in respect of policy nos. 459384103 and 459384104 vide their letter dated 12/09/2015, for which the present complainant filed appeal before the Zonal Manager of LICI but the Zonal Manager also upheld the decision of the Divisional Manager of LICI and the said fact was intimated to the present complainant vide letter dated 19/12/2015.  It is stated that therefore the entire matter has been decided finally and the complainant has no scope to seek any relief before this Forum as the matter is barred by re-sjudicata.  It is further stated that the complainant has filed the present complaint case being C.C. no.84/16 and another case being C.C. no.85/16 and both the cases are same and the total amount of two policies is Rs.30,00,000/- which is beyond the pecuniary jurisdiction of this Forum and as such the instant case is liable to be dismissed.  O.Ps. have denied that there is any deficiency in service on their part and they claim dismissal of the case with cost.

               To prove his case, the complainant Arpan Lodha has examined himself as PW-1 by tendering a written examination-in-chief and during his evidence, few documents were marked exhibit 1 to 7 respectively.  During the cross-examination of PW-1, few documents were marked as exbt. A to C respectively.  On the other hand, O.Ps. have examined one witness namely Sri Ashoke Kumar Ganguly as OPW-1 and during his evidence,  few documents were marked as exbt. D to G- series respectively. 

                                                                 Points for decision

1. Is the case maintainable in it’s present form and prayer?
2. Has this Forum pecuniary jurisdiction to try this case?
3. Is the case barred by principal of res-judicata?
4. Is there any deficiency in service on the part of the O.Ps in repudiating the claim of insurance?
5. Is the complainant entitled to get the reliefs, as sought for? 

                   

Decision with reasons

           Point nos.1 to 3-

          For the sake of convenience and brevity, all the above three points are taken up together for consideration.

Contd…………………..P/5

 

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                  Maintainability of this case has been questioned by the O.P. on two fold grounds, namely:-

1.  This Forum has no pecuniary jurisdiction to try this case.
2.  The present case is barred by principal of Res-judicata.

                   Regarding pecuniary jurisdiction, it is the case of the O.P. that the complainant Arpan Lodha has filed this case and another case being no.85/2016 and both the cases are same and total amount of two policies of  these two cases is Rs.30,00,000/- which is beyond the pecuniary jurisdiction of this Forum.  We have gone through the policy in question of this case and the policy in dispute of another case namely CC 85/2016.  On perusal of these two policies, we find that the sum assured of these two policies are Rs.15,00,000/- each and the complainant has filed two separate cases for those two separate policies.  Since the policies are different and the amount of each policy is Rs.15,00,000/-, so the said objection regarding pecuniary jurisdiction of this Forum has no leg to stand in as much as the sum assured of the present policy in question is Rs.15,00,000/- which is within the pecuniary jurisdiction of this Forum.  So the said objection is overruled and it is therefore held that this Forum has ample jurisdiction to try this case.

                             Maintainability of this case has also been questioned by the O.P.-LICI on the ground that the O.P.-LICI repudiated the claim of insurance of this policy and after such repudiation, the present complainant approached before the Zonal Manager of the LICI and the Zonal Manager concerned upheld the decision of the Divisional office of the  O.P. and therefore the entire matter has been decided finally and the complainant has therefore no scope to seek any further relief before this Forum as the matter is barred under the principal of Res-judicata.  It is not denied and disputed that after such repudiation of the claim of insurance by the O.P., the complainant approached before the higher authority of the O.P. and after hearing, the higher authority of the O.P. upheld the decision of the Divisional Manager of LICI.  Now the question arises as to whether under such circumstances the present case is maintainable or not.  On this point, we may refer section 3 of the Consumer Protection Act which provides that the provisions contained in the Act are in addition to and not in derogation of the provision of any other law for the time being in force.  There is no provision in the Act which bars filing of a complaint by consumer after availing other statutory remedies.  Therefore we are of the view that this Forum has ample jurisdiction to try the present case and the present case is not barred by principal of Res-judicata.  In view of our above discussion, it is held that the present case is well maintainable.

     All the above points are accordingly decided in favour of the complainant.

Contd…………………..P/6

         

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          Point no.4:- 

                        Admittedly Kamal Kishore Lodha , the father of the complainant,  purchased the policy in question from the O.P.-LICI on 23/05/2013 and the sum assured was Rs.15,00,000/-.  The present complainant is admittedly the nominee of the said policy.  After the death of insured on 11/12/2014, the present complainant, being the nominee, submitted claim of insurance before the O.P.-LICI and the O.P.-LICI vide their letter dated 12/09/2015 admittedly repudiated the claim of insurance on the ground of withholding material information regarding chronic diabetes with obesity at the time of effecting the assurance with them.  Admittedly after such repudiation an appeal was preferred before the Zonal Manager of O.P.-LICI and the said appeal was admittedly dismissed and the decision of repudiation was upheld.  Now the question arises for consideration is whether the O.P.-LICI was justified in repudiating the claim of insurance on the ground of  withholding of material information regarding alleged chronic diabetes with obesity at the time of obtaining the policy by the deceased insured.  On this score, we find from the written version as well as from the evidence of the O.P.-LICI that it is the case of O.Ps that prior to obtaining the said policy in question, the deceased-insured had been suffering from diabetes and obesity and he was also medically treated in Apollo Hospital, Chennai.   Medical papers of such treatment of the insured in Apollo Hospital, Chennai have been filed by the O.P.-LICI and those were marked as exbt.G- series.  Relying on those medical papers, it was submitted on behalf of the O.P.-Insurance Company that Kamal Kishore Lodha was admitted there for treatment and it was found that he had ailment of diabetes mellitus and obesity.  According to the O.P at the time of filling up the proposal form of insurance, the insured suppressed his ailment of diabetes and obesity while answering the question in the proposal form in the negative.  Further according to the O.P.-LICI, the death certificate issued by Dr. Sarnali Dey of Salboni Rural Hospital goes to show that the cause of death was “Cardio Respiratory failure in a case of chronic diabetes with obesity”.   O.P.-LICI alleged that had it been disclosed by the insured at the time of obtaining the policy that he was suffering from diabetes and obesity, they would not issue the policy.  As against this, it is the case of the complainant that the insured was not suffering from any such ailment of obesity and diabetes  at any point of time and the insured was duly examined by the authorized medical examiner of the O.Ps at Astha Diagnistic and Analitical Centre at Rabindranagar, Paschim Medinipur and after having been satisfied about the health condition of the insured and after verifying all  health related information, the O.P-LICI accepted the proposal and thereafter they issued the insurance policy in favour of the deceased- insured.  Those medical papers of Astha Diagnistic and Analitical Centre have been filed by the complainant and from those medical papers we find

Contd…………………..P/7

 

                                                                                    ( 7 )

 that there is nothing to show that Kamal Kishore Lodha, since deceased, had been suffering from any such ailment of diabetes and obesity.  O.P.-LICI have not denied the said case of the complainant that before issuance of such policy,  Kamal Kishore Lodha was  medically examined by them at Astha Diagnostic and Analitical Centre on 31/03/2013.  According to them as stated in paragraph 21 of the written version, the blood sugar report (fasting) of the life assured on 31/03/2013 undergone in the Astha Diagnostic of 80 mg(dl) does not necessarily mean that he was not under medication as because with the use of insulin or any other appropriate medicine,  the said report of blood sugar at that point of time is not unusual.  O.P.-LICI produced no sort of evidence at all to show and to prove that the insured took any such medicine at the time of such medical examination.  On the contrary, from the report of HBA1C done at Astha Diagnostic the ratio of blood sugar was found to be 5.4% which was well within normal value.  In his cross-examination, it is none but the OPW-1, Ashoke Kumar Ganguly, the Manager (L&HDF) of O.P.-LICI has admitted in his cross-examination that from sugar test of HBA1C position of sugar can be ascertained for last six months.  In that view of the matter, it cannot be presumed that at the time of sugar test at Astha Diagnostic by the Medical officers of the O.P, the insured took any insulin or other medicines for maintaining normal range of sugar label.  In view of that and since the deceased- insured after submission of proposal form was thoroughly examined by panel doctors of the O.P.-LICI at Astha Diagnostic, who found no sign of diabetes, so it cannot be said that at the time of obtaining policy in question the deceased insured had any ailment of diabetes and obesity.

                    Now about the alleged medical papers of Apollo Hospital at Chennai, Ld. Lawyer of the O.P. submitted that long before the date of submission of proposal form, the deceased-insured was admitted in the said hospital for treatment of diabetes mellitus but at the time of filling up the proposal form, the deceased-insured suppressed his said ailments of diabetes with obesity and regarding his treatment in Apollo Hospital. As against this, Ld. Lawyer for the complainant submitted that Kamal Kishore Lodha was not at all admitted in the said hospital for treatment of any such ailment and the O.P-LICI has also not proved those medical papers by any competent person or doctor of the said hospital and therefore the complainant got no opportunity to cross-examine the author of those documents.  Further according to him, mere marking of a document as an exhibit does not dispense with it’s proof.  Having heard the above submissions of both sides, we are of the view that since the O.P has made out a case that the deceased insured was admitted in Apollo Hospital, Chennai for treatment of diabetes with obesity, so it was for them to produce tangible evidence to prove such case.  It is the settled law that mere marking of a document as an exhibit does not dispense with it’s proof.  O.P. took no steps to examine any doctor of the said hospital to

Contd…………………..P/8

 

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 prove those medical papers and the complainant also got no opportunity to cross examine the author of those documents regarding it’s correctness and therefore no reliance can be placed upon those medical papers to hold that the deceased-insured was at all admitted there in the said hospital for his treatment of alleged illness of diabetes with obesity.

                  Now about the death certificate (exbt.-E) issued by Dr. Sarnali Dey, the Medical Officer of Salboni Rural Hospital.  Relying upon the said death certificate and another document (exbt. –B) which is a claim ‘Form-D’, ld. Lawyer for the O.P.-Insurance Company submitted that it would be evident therefrom that the insured died due to Cardio respiratory  failure in case of chronic diabetes and obesity and history of ailment of diabetes and obesity was stated by the patient party i.e. wife of the patient.  It is therefore submitted on behalf of the O.P. that the insured had been suffering from chronic diabetes and obesity and he died due to such chronic illness of diabetes but the insured suppressed the said material fact at the time of filling up the proposal form.  As against this, it is the case of the complainant, as made out in the petition of complaint, that the complainant and his mother were not in a state of talking at such time of shocking incident and therefore some of their neighbour completed all paraphernalia at the time of admission and they might have stated some statement regarding the deceased- insured to the doctor without having any specific knowledge about the physical state of the deceased-father of the complainant. Further according to the complainant, the statement of the Medical Attendant regarding diabetes and obesity of the deceased father of the complainant is devoid of any medical evidence and was not the statement of the deceased-insured or any of his family members.  In support of their contention, the complainant has relied much on “Claim Form-B”, issued by Dr. Sarnali Dey of Salboni Rural Hospital.  From this “Claim Form-B”, we find that the history of ailment was reported by the patient party and nowhere in the said form it has been stated that the history of ailment was reported by the wife of the deceased-insured.  Curiously enough, in “Claim Form-D”, the said doctor reported that the patient’s wife reported the history of ailment at the time of admission.  These two documents namely “Claim Form-B” and “Claim Form-D” are mutually contradictory regarding the reporting of history of the patient at the time of admission, although those two documents were issued by the same doctor.  More so, we also find from “Claim Form-B” that proper diagnosis regarding ailment could not be done as the patient died within 15 minutes of his admission.  From this “Claim Form-B”, we find that the cause of death was reported after seeing the symptoms of severe breathlessness and sweating.  It thus appears from this ‘Claim Form-B” that no diagnosis regarding the ailment of the patient could not be done by Dr. Sarnali Dey, the Medical Attendant and after seeing the symptoms, she gave the cause of death of the patient.  It is not understood as to how the said doctor gave such cause of death without making any diagnosis

Contd…………………..P/9

 

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 of the patient and gave opinion regarding ailment of diabetes and obesity after hearing the alleged history of diabetes and obesity from the patient party.  Therefore no reliance should be placed upon such opinion regarding the cause of death of the deceased-patient, particularly when the said doctor, who issued the death certificate, has not been examined as witness by the O.P.-LICI and the complainant also got no opportunity to cross-examine the said doctor, who issued the death certificate (exbt.E) and two contradictory claim forms.  Therefore we are unable to place any reliance upon the death certificate (Exbt-E) and to hold that the deceased-insured was admitted in the hospital with the history of illness of diabetes and obesity.

                   In the above facts and circumstances of the case and the discussions, made above, we are constrained to hold that the deceased-insured suppressed no material fact regarding his health condition at the time of filling the proposal form and we are therefore of the view that the O.P-LICI was not justified in repudiating the claim of insurance on the alleged ground of suppression of ailment of diabetes and obesity in the proposal form.

                 This point is accordingly decided in the affirmative and in favour of the complainant.

Point no. 5

                 In view of our  above findings, the complainant is entitled to get the reliefs as prayed for.

     All the points are accordingly disposed off.

     In the result, the complaint case succeeds,

                                          Hence, it is,

                                                Ordered,

                        that the complaint case no.84/2016  is allowed on contest with cost against the O.P.  O.P.-LICI is directed to pay the entire insured amount of Rs.15,00,000/- to the complainant along with interest @ 6% p.a. from the date of filing of the complaint till payment.  O.P.-LICI is further directed to pay Rs.20,000/- as compensation and Rs.10,000/- as litigation cost to the complainant.

    All such payment shall be made within a month from this date of order.

                         Let plain copy of this order be given to the parties free of cost.

          Dictated and Corrected by me

                    Sd/-B. Pramanik.             Sd/-P.K. Singha           Sd/- S. Sarkar             Sd/-B. Pramanik. 

                         President                           Member                      Member                       President

                                                                                                                                      District Forum

                                                                                                                                   Paschim Medinipur