The complainant Savita Singh has filed this complaint petition against TATA AIG Life Insurance Company Ltd. Mumbai through its Branch Manager, Muzaffarpur for realization of Rs. 10 lacs/- for none delivered critical illness claim, Rs. 1,50,000/- as sum assured and Rs. 1 lacs as compensation total RS. 12,50,000/-.
The brief, facts of the case is that the complainant’s Husband Sri Anil Kumar Singh had applied for TATA, AIG health protector and 5 year guaranteed renewal accident and health Plan (110NO39VO1) from the o.p on 13-03-2008 which included various benefits including the benefit for critical illness of an amount of Rs. 10 lacs/- and terms life benefit of Rs. 1,50,000/-. The further case is that after medical examination of Sri Anil Kumar Singh (L.A) o.p company issued policy bearing no.-CO12934737 with effect from 27-03-2008. The L.A. paid life Insurance premium of Rs.10,333/- on 13-03-2008 for which insurance company issued temporary receipt No. R4839304 dated 13-03-2008. The further case is that the L.A, paid the second annual premium of Rs.9,967/- on 25-03-2009. The further case is that after medical test of D.L.A above insurance was approved on 27-03-2008. The further case is that on 16-06-2009, the L.A. complaint for pain in back and bleeding from Urine . So, he rushed to Prashant Memorial Hospital at Juran Chapra, Muzaffarpur. After examination of the condition of Sri Anil Kumar Singh, the said hospital referred him to All India Institute of Medical Sciences New Delhi or Sum other Super Seciality hospital. The further case is that in compliance to the above Advise Sri Anil Kumar Singh was taken to Lucknow in SGPGI on 19-06-2009 were he was diagnosed to be suffering from Kidney ailment were after intensive and extensive treatment entailing expenditure of about of Rs. 10-11 lacs/- It was found and opined that Sri Anil Kr Singh requires Kidney transplant for survival. The further case is that insurance company was approached by the complainant for Monetary Support under the ‘Critical illness benefit’ as provided in the said insurance policy of Sri Anil Kumar Singh with all the relevant papers on 29-09-2009. The further case is that on receipt of the above claim the representative of the insurance company visited Lucknow and made appropriate inquiries/ check from the insured /other persons/ authorities concerned. But even after that no action was taken by the insurance company regarding further claim. The further case is that in course of dialysis, L.A. was developed with hepatitis-B and due to which ultimately he succumbed to death on 13-11-2009 during treatment at the SGPGI, Lucknow. The further case is that o.p company repudiated the claim of the complainant on dated 24-02-2010 on allegation that insured was suffering from ‘chronic Kidney disease ‘since prior to the application for insurance which was not disclosed by insured in his application for insurance dated 13-03-2008.
The complainant has filed the following documents with the complaint petition - photocopy of policy annexure-1, photocopy of 1st money receipt annexure-2, photocopy of policy form -annexure-3, photocopy of money receipt- annexure-4, photocopy of claim intimation policy No.- C012934737 -annexure-5, photocopy of legal notice- annexure-6, photocopy of repudiation letter annexure-7, photocopy of death certificate annexure-8.
On issuance of summon o.p appeared and filed his w.s. on 11-10-2010 with prayer to dismiss the complaint petition. It has been mentioned in the w.s. that the L.A obtained the insurance by suppressing material information about his health. It has been further mentioned that this forum has got no jurisdiction to entertain the present complaint since the complainant has failed to show any deficiency in service on the part of the o.p. It has been further mentioned that the complainant has raised disputed question on fact and law and as such only civil courts have the proper jurisdiction attached upon the question raised therein after proper and elaborate trial. It has been further mentioned that the company investigated the claim and found that the L.A was suffering from severe ‘Chronic kidney disease’ and Autosomal Dominant Polycystic kidney disease (APDKD) since last 3 years before his death. It has been further mentioned that it was found by investigator that L.A. fraudulently suppress the material fact regarding his pre-existing disease at the time of filing of the application form for the said policy by giving fraudulent answer to question no.- (b) of step six and question no.-6 under step-8. It has been further mentioned in the w.s. that there is no cause of action. It has been further mentioned that the insurance was admitted in ‘Santushti Hospital ,Varanashi’ on 19-06-2009. It has been further mentioned that he was discharged on the same date. It has been further mentioned that as per the discharge summary he was diagnose by renal failure with respiratory distress . It has been further mentioned that insured then underwent consultation at Sanjay Gandhi Post Graduates Institute of Medical Sciences on the same date that is on 19-06-2009. The report of SGPGI shows that insured is a “known case of K/C (of) ADPKD for 3 years. It has been further mentioned in the w.s. that discharge summary of SGPGI is annexed but the same was not annexed at the time of filing of w.s. Later on 14-09-2019, photocopy of discharge summary SPGI in one page has been filed. The o.p has denied the contents of para-4 of complaint petition in reply at para-4 of complaint petition of para-4 of w.s. only on merit and it has been mentioned that there was no medical tests conducted at the time of issuing the policy, on the contrary the policy was issued solely based on the replies given by the insured in the application form.
The complainant was heard by this forum on 19-08-2013: On that date and before that, the o.p were absent, so the forum was pleased to fix the matter for order on merit on 23-08-2013. The forum was pleased to allow the complaint petition on the same date and ordered to o.p to pay Rs. 10 lacs/.- as compensation for critical illness, Rs. 1.50,000/- as sum assured, Rs. 20,000/- as a physical and mental harassment and Rs. 5000/- for litigation cost within 30 days from receiving the certified copy of the order, on failing the o.p shall be responsible for payment of the aforesaid amount with 10 % p.a. interest from the date of order till realization.
Being aggrieved by that order the o.p preferred an appeal bearing No. 111/2014 before S.C.D.R.C Patna Hon’ble State Commission vide order dated 25-01-2016 setaside the order of this forum and remanded back the complaint no.- 48/2010 to this forum for deciding a fresh the complaint after hearing both parties preferably within 3 months from the receipt of the order. The Hon’ble State Commission has observed in para-6 of its order which is as follows.-
“Having considered the submissions of parties and on perusal of the order passed by the District Forum as also the material available on record, it appears that the District Forum has not analyzed the whole matter in details and has not considered the points raised by the parties in right perspective. It is undisputed fact that the husband of the respondent Anil Kumar Singh had taken a policy from the appellant company for Rs. 11,50,000/- and during insurance period, he died during treatment of Kidney disease in Lucknow S.G.PG.I Hospital on 13-11-2009. On the basis is of the investigator report, the appellant company repudiated the claim of the respondent stating that the life assured was suffering from chronic Kidney disease from the last three years before taking Insurance Policy which has been suppressed by the proposer. The appellant has annexed the prescription of Lucknow S.G.P.G.I. The burden of proof regarding false representation and suppression of material facts lies on appellant company. We agree with this Principle which has been held by several rulings of the Hon’ble Apex Court. But on perusal of the record, it reveals that there is no evidence on affidavit of any Doctor and other relevant documents to substantiate the allegation. The appellant has raised objection that only two members cannot pass any final order in absence of the president under section 14 (2). It is not a correct interpretation of law. Under section 22 ‘D’ of the Consumer Protection Act, 1986,” when the office of a president of District Forum/State Commission is vacant or a person occupying such office is by reason of absence or otherwise unable to perform the duties of his office. These shall be performed by the senior most member of the District Forum. If a retired Judge is available among members then he will be the president of the bench. Thus, the order passed by any two non-judicial members is legal and justified. But on perusal of the order passed by the District Forum, it appears that one of the member signed the order on 23-08-2013 and the counsel for the complainant received a copy on 29-08-2013. Then another member signed undated and the same counsel received that order on 31-08-2013. It is not proper and justified. Both members, who heard the case jointly , should had to pass the order jointly and should had to sign the order on the same day.
The complainant has examined herself as AW-1 on affidavit.
On behalf of o.p, o.p w-1- Rajesh S Dhane, Manager Legal of TATA AIG, has been examined as o.p w-1.
The Learned Lawyers for both the parties have already been heard. The learned lawyer for o.p has submitted that the L.A was suffering with pre-existing chronic Kidney disease (C.K.D) and autsomal poliysystic kidney disease, (A.D.P.K.) since prior to filing of application form. He has further stated that L.A has suppress the material fact in his application form. He further submits that the policy is being issued on the principal of ‘utmost good faith’ and the complainant obtained the policy by fraudulentl misrepresentating the pre-existing disease, so this complaint petition is liable to be dismissed. He relied on the observations made by Hon’ble Supreme Court of India in civil appeal No.-3944/2019/SLP © 5001/2019 vide order dated 15-04-2019.
Learned Lawyer for complainant has submitted that the policy was issued after medical test of the life assured and the complainant has categorical mentioned the above fact in his complaint petition in para no.-3 and 4. He has further submitted that the o.p no.-2 has not specifically denied the above fact in para and no.-3 w.s. in para-11 of on reply . The complainant has annexed the annexure-7 and the o.p company has also relied on this paper. O.P. has repudiated the claim of the complainant on the ground that investigation establishe that the insured was suffering from Chronic Kidney disease (C.K.D) autosomal dominant polycystic kidney disease (A.D.P.K.D.) since prior to the filing of application for insurance of policy. It has been also mentioned in the annexure-7 that such information was not disclosed in reply to the specific questions in step 6 & 8 in the application dated 13-03-2008 for the above policy.
Issuance of policy and filing of claim petition before o.p company is an admitted fact. The Hon’ble S.C.D.R.C Bihar, Patna has observed in para-6 of the order dated 25-01-2016 which is as follows.” The burden of proof regarding false representation and suppression of material facts lies on appellant company. We agree with this principle which has been held by several rulings of the Hon’ble Apex Court. But on perusal, it reveals that there is no evidence on affidavit of any Doctor and another relevant documents to substantiate the allegation”.
The o.p has not examined the Dr. as observed by State Commission. Only photocopy of discharge sheet/slip of SGPGI, Lucknow with respect to Anil Kumar Singh and photocopy of prescription report of Sanjeevani Health care have been filed to show that the L.A. was suffering for (A.K.P.D) for 3 years, from the date of his admission. The same has been objected on behalf of complainant by filing rejoinder petition. It has been mentioned in the rejoinder petition that the document mentioned at serial no.- 2 &3 of the list of o.p is not legally valid for having evidential value unless it is testified by the Doctor concerned to confirm their authorship of documents issued by them. The insurance company/o.p has failed to do it in course of hearing of this case and now no option is left for him for remedy. The para- Second, Third, fourth of the complaint petition shows regarding medical examination of L.A. at the time of issuance of policy. In para-3 of complaint petition, it has been mentioned that pursuant thereto the insurance company referred the applicant Anil Kumar Singh to its proved medical examination/laboratory for certain required tests namely viz. BPB (HIV, cholesterol , Trigly cerides, Glucose, creatinine, , Urea, S.Bilirulin, Hbs Ag, SGOT,SGPT,ALK, phos, Gamma GT, Albumin) and ME (with Urine dipstick) which Sri Anil Kumar Singh underwent. It has been further mentioned in para-4 of the complaint petition that subsequent to the aforesaid required tests the medical assessment of Sri Anil Kumar Singh was made by approved medical examination of its basis and the insurance company being duly satisfied with the overall health condition of Sri Anil Kumar Singh accorded approval to the said insurance policy no.-C01294737 with effect from 27-03-2008.
The complainant AW-1 Savita ;Singh has supported this fact in his examination has support this fact in his examination in chief filed on affidavit . The o.p has not denied the para-3 of the complaint petition and has mentioned in para-3 of the reply. On merits that the contents of para 3rd of the complaint are matter of record, hence it need no reply. In para-4 of reply on merits he has denied the averments of para-4 of complaint petition. It has been mentioned in para-4 of reply of merit of w.s. that there was no medical test conducted while issuing the policy, on contrary the policy was issued solely best on the replies given by the insured in the application form. No doctor has been examined on behalf of o.p to deny the fact of previous examination by the doctor. No document has been adduced on behalf of o.p to controvert the above facts. The document produced on behalf of parties does not suggest that the policy was issued without medical test from the complaint petition and the document produced on behalf of complainant, it appears that firstly provisional policy was issued and the receipt was issued to the L.A. So, the ruling filed on behalf of o.p is not applicable in this case.
The o.p has not examined any doctor as observed by the Hon’ble State Commission. He has only filed a discharge slip of o.p of SGPGI Lucknow and photocopy of prescription of Sanjeevini health care only to show that there is history of suffering of L.A. from ADPKD from 3 years but no test, no prescription of any doctor has been filed to prove that before attending in the Sanjeevini care Hospital L.A. was suffering from kidney illness. In the circumstances, we are of the opinion that the o.p has wrongly repudiated the claim of the complainant, and there is deficiency of his part.
Accordingly, the complaint petition is allowed and o.p is directed to pay Rs. 10 lacks/- towards none critical illness, Rs. 1,50,000/-( sum assured), Rs. 20,000/- as compensation within two month from the receipt of the copy of the order, on failure they shall be responsible for payment of aforesaid amount with 8 % interest p.a. till realization. Let a copy of this order be furnished to both the parties as per rule.
