Date of Filing            : 12/08/2011

Date of Admission   : 18/08/2011

Date of Judgment    : 10/04/2013

 

Shri Ram Sevaldas Keswani

Age – 47, Occu – Business

R/o.M/s.Kriti Cloths,

Near Nagarparishad, Ichalkaranji,

Tal.Hatkanangale, Dist.Kolhapur                                     ……. COMPLAINANT

 

1. Tata AIG Life Insurance Company Ltd.,

Br.Office- Sangli Near Ram Mandir Corner,

Opposite Jimkhana, Sangli.

 

2. Tata AIG Life Insurance Company Ltd.,

Registered & Corporate Office

Delphi, B-Wing, 2^nd Floor, Orcharde Avenue,

Hirachandani Business Park,

Pavai, Mumbai – 76.

 

3. Bhaswar Roychaudhary (Head Of Claims)

Age – Major, Occu - Service

Tata AIG Life Insurance Company Ltd.,

 

4. Mr.Sourav Majamuder

Age – Major, Occu – Service

(Zone Head (operations) West)

Tata AIG Life Insurance Company Ltd.,

 

5. Mr.Shardul Prabhudesai (SN-02)

Tata AIG Life Insurance Company Ltd.,

Opponents No.3-5 R/o Delphi,

B-Wing, 2^nd Floor, Orcharde Avenue,

Hirachandani Business Park, Pavai,

Mumbai – 76.                                                                        ……. OPPPONENT

 

 

 

 

 

 

 

1.         This complaint u/s 12 of the Consumer Protection Act has been filed by the complainant alleging unfair trade practice and deficiency in service on the part of the respondent insurance company.

 

2.         The complainant has also prayed for an amount of Rs. 15,00,000/- (Rs.Fifteen lacs) being sum assured for the life of his brother Mahesh Sevaldas Kesawani, who has died on 17/7/2010 and he has further claimed the amount of Rs.2,00,000/- (Rs.Two lacs) being compensation for loss, mental harassment and agony caused due to the opponent and further amount of Rs.15,000/- being notice charges and Rs.5,000/- being costs.

 

3.         The case of the complainant can be summarized as that, his brother Mahesh Sevaldas Keswani had taken a Life Invest Assure Flexi (110L55VO1), regular premium Unit Link Plan policy from respondent on 22/5/09. The sum assured was Rs.15,00,000/-. The term of policy was 34.  Its number was U160857484, bearing code No.SN02. The yearly premium was Rs.30,000/-. The complainant is a nominee of said policy. Mahesh Sevaldas Deshwani paid two premiums.

 

4.         Mahesh Sevaldas Keshwani died on 10/7/10. After his death, being Nominee, the complainant submitted insurance claim, bearing No.SN-10004881. The said claim was received by respondent on 5/10/10. The said claim was repudiated by respondent company, by its letter dated 13/4/2011, on the ground that the investigations have revealed that the deceased Mahesh was suffering from Diabetes and hypertension, since prior to application for insurance and this information was suppressed by Mahesh, while answering to specific questions asked, in the application dated 13.4.2009, and hence, it was not a valid claim.

 

5.         The complainant contends that Mahesh Sevaldas Keshwani was not suffering from any disease either prior to or on the date of application for insurance, and he had not suppressed any material facts while applying for insurance. That only six months prior to the death of Mahesh, it was diagnosed that he was suffering from diabetes mellitus. That since Mahesh Sevaldas Keshwani was not suffering from any disease, on the date of application for insurance, the respondent company did not bother to get the medical examination of Mahesh done at the time of insurance proposed. That the insurance claim has been repudiated on false grounds, and thus, the insurance company has committed unfair trade practice and has committed deficiency in service. On such contentions, the complainant has claimed aforementioned amounts.

 

6.         The complainant has filed an affidavit in support of his complaint at Exh.10 and also has filed as many as 18 documents alongwith the list of documents at Exh.4.

 

7.         The respondents No.1 to 5 were duly served, but they failed to appear and contest this complaint by filing their written statement. Hence, under the order passed by our Ld. Predecessor, dated 14/6/12 below Exh.1, they were ordered to be proceeded Ex-parte. As such, there is no contest to this claim.

 

8.         We have already pointed out above, the ground on which the claim was repudiated. We need not repeat the same for the sake of brevity. There cannot be and there is no contest to the contention of complainant that he is a consumer and can file a complaint. 

 

9.         The crux of the matter lies in the question as to whether the repudiation of the claim on the aforementioned grounds is proper or not. The respondent insurance company has taken plea that the insured had suppressed material facts while applying for insurance and that the deceased was suffering from diabetes mellitus, as on the date of application for insurance. The complainant has denied that the deceased was suffering from any disease as on the date of said application. The burden to prove that on the date of application for insurance, the deceased was suffering from any disease and had suppressed said information was quite heavily placed on the respondent.

 

10.       In Gurram Varalaxmi Vs. LIC of India, reported in 2005 STPL (CP) 872 NC, the Hon’ble National Commission has held that the burden of proof is on the insurer to establish that there was suppression of material facts on the part of insured, and unless the insurer is able to do so, there is no question of policy being avoided on the ground of misstatement of facts. In the facts of the said case, there was no evidence on record to establish that the deceased had suppressed material facts at the time of taking the insurance policy. The insurance company had failed to bring on record any documentary evidence in that behalf.

 

11.       In New India Assurance Co.ltd. Vs. Lalit M. Bhambani & Anr.; reported in 2009 STPL (CP) 784 NC and in Laxman Prasad Pandey Vs. LIC of India; reported in 2006 STPL (CP) 1115 NC, also the National Commission has taken the same view. Thus, it is clear that the burden was on the respondents to prove that at the time of taking insurance and while submitting proposal form, the deceased had suppressed material facts, regarding his disease. Since the respondents are proceeded Ex-parte and since they have not led any evidence whatsoever, their substantial defense is not proved at all.

 

12.       The respondents, appear to have taken the defense above, from the physician’s statement, made by one Dr. C.P. Patil, which is appended to the Application form for Death claim, submitted to the respondent No.1; by the complainant. The copy thereof is filed alongwith List Ex.4, by the complainant. In that physician’s statement, Dr. C.P.Patil has stated that deceased Mahesh had suffered from DIABETES MELLITUS. Duration of such disease was initially written as one year but it was scored out and the words six months were written. Now, this scoring out and correction is not initialled by anybody. Certainly said Dr.C.P. Patil is not examined by respondents to prove that for certain duration, prior to his death, Mahesh Keswani had suffered or was suffering from said disease. The death certificate issued by Dr. Y.B. More, which is filed by complainant at Exh.4/1, does not give the cause of death, due to which the deceased Mahesh died. Certainly that Death certificate does not show that deceased Mahesh has died due to Diabetes Mellitus. The death of Mahesh Keswani took place, two years after he took insurance policy. It is difficult to hold that as on the date of submitting application/proposal for insurance, the deceased was in fact suffering from any disease and had suppressed the said fact from insurance company. Therefore, the insurance company could not say that deceased had, in fact, suppressed material facts and therefore, it had validly repudiated the insurance claim. The repudiation of claim by respondent No.1 is, therefore, invalid and it amounts to deficiency in service. We therefore, hold accordingly. 

 

13.       When it is held that the complainant has proved that the Respondents have committed deficiency in service in not validly accepting the claim of the Complainant, the Complainant would be entitled to the relief in this complaint. There is not dispute to the fact that the life of Mahesh Sevaldas Keswani was assured for the amount of Rs.15,00,000/- by the Opponent Insurance Company. The nature of the policy appears to be slightly different which is said to be a Unit Linked Plan Policy. The Respondent Insurance Company appears to have paid certain amount to the claimant being the value of the units, purchased from the premiums paid by the deceased Mahesh. The said amount has no bearing on the amount of the sum assured. Therefore, the Complainant appears to be entitled to receive the amount of insurance to the extent of sum assured i.e.15,00,000/- on account of death of his brother Mahesh Keswani. The documents, which are filed along with the list at Exh.4/8 shows the name of the Complainant Ram Sevaldas Keswani appears to be as nominee and as such the Complainant is entitled to receive the said amount. This Forum, therefore, held that the Complainant is entitled to receive the amount of Rs.15,00,000/- from the Respondents.

 

14.       However, we are of the opinion that other amounts claimed by the Complainant are quite exorbitant. We have already outlined further claims of the Complainant in the forgoing paras of our Order. The Complainant has claimed Rs.2,00,000/- being the compensation for the loss, mental hardship and agony caused due to the Opponents, Rs.15,000/- being notice charges and Rs.5,000/- being the cost. The last two items are certainly quite exorbitant. The Complainant has not led any specific evidence on account of his claim for compensation for Rs.2,00,000/- on the grounds above. However, Complainant ought to have suffered some agony on account of the repudiation of the claim by the Respondents. For that, certain amount of compensation is liable to be paid to the Complainant but considering the huge amount of Rs.15,00,000/-, which is entitled to get on account of insurance, all these mental agony, loss etc. would be minimized and as such a certain amount of Rs.5,000/- would meet the ends of justice. Similarly, an amount of Rs.500/- on account of notice charges and the same amount towards the cost of this litigation would be more than sufficient and we held the Complainant to be entitled to receive these amounts. We, therefore, hold accordingly and proceed to pass the following order.

 

 

1)    The complaint is partly allowed.

 

2)    The Respondent Nos.1 & 2 do hereby jointly and severally pay the amount of Rs.15,00,000/- to the Complainant being an insurance amount payable on account of death of Mahesh Sevaldas Keswani.

 

3)    The Respondent Nos.1 & 2 shall also pay jointly and severally an amount of Rs.5,000/- to the Complainant on account of loss, mental agony etc., and the amount of Rs.500/- being the notice charges and the amount of Rs.500/- being the cost of the litigation.

 

4)    These amounts shall be paid within 45 days from the date of this order.

 

5)    The Respondent Nos.1 & 2 shall also pay the interest on the amount of insurance only @ 8.5 p.a. from the date of the complaint till realization.

 

6)    On failure of the Respondent Nos.1 & 2 to comply with this order within a time limit prescribed, the Complainant shall be entitled to pursue his remedies either under Section 25 or under Section 27 of the Consumer Protection Act as being fit.

 

 

SANGLI

Dated : 10/04/2013