Haryana

Yamunanagar

CC/686/2012

Manju Kaur Lamba w/o Sh.Amrinder Singh Lamba - Complainant(s)

Versus

The Branch Manager, ING - Opp.Party(s)

J.K.Gupta

14 Jun 2017

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

                                                                                                Complaint No. 686  of 2012.

                                                                                                Date of institution: 03.07.2012

                                                                                                Date of decision: 14.06.2017

1. Manju Kaur Lamba aged about 50 years wife of Sh. Amrinder Singh Lamba,
2. Amrinder Singh Lamba aged about 54 years son of Shri Tirath Singh both residents of H. No.14, Harbans Pura, Workshop Road, Near I.T.I. Yamuna Nagar.                                                                                                                                                                                                                                                     …Complainants.

                                    Versus

1. The Branch Manager, ING Life Insurance Ombudsman, S.C.O No. 101-103, 2^nd Floor, Batra Building, Sector 17-D, Chandigarh.
2. Manager, ING Life Insurance Ombudsman, ING Vysya House 5^th Floor, 22 M.G.Road, Banglore.
3. the Manager ING Life Insurance Ombudsman Comp. Ltd. Near BSNL Office, Yamuna Nagar.                                                                                                                                                                                                        

                                                                                                             …Respondents.

 

BEFORE:       SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

                        SMT. VEENA RANI SHEOKAND, MEMBER.

 

Present: Sh. J.K.Gupta, Advocate counsel for complainant. 

Sh. Vikas Aggarwal proxy counsel for Sh. Akshay Jain, Naveen Aggarwal & Sh.     Parkash C.Sharma, Advocate, counsel for respondents.  

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act, 1986 as amended up to date.

2.                     Brief facts of the present complaint as alleged by the complainants are that Ms. Ramneet Lamba daughter of the complainants had purchased a life insurance policy from the respondents (hereinafter respondents will be referred as OPs) vide policy bearing No. 01806130 with the date of commencement 04.03.2010 for a sum insured of Rs. 12,50,000/- and premium of Rs. 6400/- yearly was payable and to this effect the daughter of the complainants had completed all the formalities and paid the first premium of Rs. 6400/- on 03.03.2010 and filled a proposal form which was duly accepted by the Ops. After acceptance of all the documents, the Ops issued the policy to the daughter of complainants which came into force on 04.03.2010. Due to bad luck of the complainants, their loving daughter expired on 07.12.2010. Subsequently, the complainants approached the OPs and informed them regarding the death of their loving daughter and also completed all the formalities required by the OPs for giving the death claim under the policy which was insured by their loving daughter Ms. Ramneet Lamba but they put off the matter on one pretext or the other. Thereafter, the complainants represented them through a letter and requested them to release the death claim amount of their loving daughter but instead of making the payment they had issued a letter to the complainants and on false and bogus grounds without any merits rejected the claim of the complainants. Lastly, prayed for directing the OPs to make the payment of death claim of Remneet Lamba to the complainants with immediate effect and further to pay compensation as well as litigation expenses.  Hence this complaint. 

3.                     Upon notice, OPs appeared and filed its written statement by taking some preliminary objections such as complainant has concealed and suppressed the material and relevant facts of this case. The complainants are guilty of suppression vari and suggestion false as will be evident from the facts of the case. The complainants have not acted in good faith with respect to this complaint and has approached this Forum with unclean hands, hence in view of doctrine One who seeks equity must come with clean hands. The complaint has been filed merely to harass and gain undue advantage and unjustified monies from the OPs and hence the complaint deserves to be dismissed in limine. It has been submitted that the daughter of the complainant No.2 i.e. Ms. Ramneet Lamba had applied for a life insurance policy plan named “ING term Life Plus- Regular” on 03.03.2010 for which the Life Assured duly filled and signed a proposal form and thereby duly accepted all the terms and conditions of the said policy plan. The OPs Insurance Company after receiving the duly signed and filled proposal and to believe upon the statements with regard to health made under the proposal form and the declaration given therein for each and every material fact, the medical examination was not conducted as the Life Assured had given detailed declaration under the Proposal Form with regard to her good health and had further declared that she had not diagnosed and treated earlier. The Insurance Company believing upon the statements made by the Life assured issued the policy and no medical examination was conducted.  The authorization and declaration which was given by Life Assured at the time of filling proposal form/signing the insurance contract that nothing has been concealed or wrong information has never been furnished by the policy holder. After receiving the above stated proposal form and medical examination report, the OPs Company believing the material facts like past medical history, present health status, annual income, profession, family history etc. as provided by the LA has issued a policy No. 01806130 on 04.03.2010 on standard Premium Rates in favour of Life Assured. The complainant No.2 presented a Death Claim Intimation Form dated 30.12.2010 by stating that the Life Assured had died on 07.12.2010 (within 9 months from the issuance of policy date i.e. 04.03.2010) and requested to release the claim amount and further stated through the Death Claim Form that the death was natural in nature. After receiving the claim form alongwith documents pertaining to Life Assured, the OPs had conducted an investigation regarding the claim process. The Ops during the investigation process of the claim also gathered few documents and information pertaining to Life Assured. The OPs during the investigation and after careful evaluation found that the Life Assured at the time of making the policy contract concealed the health information regarding the diagnosis and treatment taken in the year of January, 2009 (just prior to filling the proposal form on 03.03.2010). The life assured has withheld the material information that “ she had a pre-existing history of IGA Nephropathy, CKD-ESRD which was prior to the date of proposal i.e. 03.03.2010. The Life assured was known case of suffering from Nephropathy IGA and Progressive Glomerulosclerosis prior to submission of proposal form which is evident from the following records. documents gathered during the investigation by the Insurance company” (Annexure R-5):-

*           Surgical Pathology report from postgraduate institute of medical Education & Research, Chandigarh with Biopsy No. S-331/2009, CR No. 219528 Request Date: 09.01.2009 and Report Date: 12.01.2009 revealed-

                        Diagnosis:

                        Kidney, biopsy             Nephropathy IGA

                                                            Progressive Glomerulosclerosis

• In continuation, LA was again hospitalized on 27.03.2010 in the same hospital with Admission No. 58199/10 and underwent living related renal donor transplant ( LRRDTx) on 29.03.2010 (Donor- mother) CR No. 219528, admission notes indicate medical history as “Patient is a case of CGN, CRF with ESRD, Kidney biopsy: S-331/09- IgA Nephropathy with progressive glomerulosclerosis”.
• LMAC and Medical Certificate of cause of death issued by Postgraduate Institute of Medical Education & Research, Chandigarh revealed LA died at the same hospital (PGI), Chandigarh on 07.12.2010 with primary cause of death as raised ICT with meningitis and secondary cause of death as IgA Nephropathy CKD-ESRD, Post, renal transplant done in March, 2010.

 Whereas the OPs Insurance Company accepted the proposal form duly filled and signed which was based on the answers, statements, declaration provided by the Life Assured in the proposal form.  Had the life assured disclosed that she had a pre existing history of IGA Nephropathy, CKD-ESRD and underwent treatments for the same, the OP Insurance Company would have declined her proposal for insurance on her. The clause No.9 of the terms and conditions of the insurance policy in question clearly states that “ in issuing this policy, the company has relied on, and may rely on, accuracy and completeness of the information provided by the proposer/life assured and any other declarations or statements made as may be made hereunder by the policy holder/Life assured.

            The contract of the Insurance including the life insurance contract are based on the principle of uberrima fides and the proposer is under solemn obligation to disclose all the material facts to the insurer at the time of taking the insurance policy, failing which the contract of insurance rendered void ab-initio, invalid and unenforceable. The life assured while entering into policy contract has wrongly answered to the Question Nos. 71 & 74 and concealed the true information regarding her pre health condition. The questions were as under:

Q. No.71,  Have you suffered from any illness, disorder, disability or injury during the last 5 years which has required any form of medical or specialized examination (including chest X-rays, EGC, Stress test, Angiography, MRI/CT Scan or blood tests), consultation, hospitalization or surgery?

Answer is “NO”

Q. No. 74.  Have you ever been diagnoses or have suffered from any of the following:

            j) Thyroid or any other hormonal disorder, kidney disorders, Bladder disorder, urine abnormality or genital organ disorder-

Answer is “NO”.

            The Life Assured had also authorized the OPs Insurance Company to repudiate the claim in case the company founds mis-statement/suppression in the proposal form. Therefore, the OPs, vide its letter dated 11.05.2011, repudiated the claim of the complainant No.2 on valid and correct grounds and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections.  Lastly, prayed for dismissal of complaint. 

4.                     To prove the case, counsel for the complainant tendered into evidence joint affidavit of complainants as Annexure CW/A and documents such as Photo copy of claim repudiation letter as Annexure C-1 to C-3, Photo copy of proposal deposit acknowledgement as Annexure C-4, Photo copy of death certificate of Ramneet Kaur Lamba as Annexure C-5, Photo copy of medical certificate of cause of death as Annexure C-6, Photo copy of renewal premium receipt of LIC of India as Annexure C-7 and closed the evidence on behalf of complainants.

5                      On the other hand, counsel for the OPs tendered into evidence affidavit of Sh. Chethan P. General Manager as Annexure RW/A and documents such as photo copy of proposal form as Annexure R-1, Photo copy of terms and conditions as Annexure R-2, Photo copy of death information cum claim form as Annexure R-3, Photo copy of claim repudiation letter dated 11.05.2011 as Annexure R-4, Photo copy of medical certificate of cause of death as Annexure R-5 and closed the evidence on behalf of OPs. .

6.                     Written arguments filed on behalf of OPs. We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7.                     It is  not disputed that the daughter of complainants deceased Ramneet Kaur was not insured under the policy bearing No. 01806130 with the date of commencement 04.03.2010 for a sum insured of Rs. 12,50,000/- and the premium amounting to Rs. 6400/- was payable yearly. The only version of the complainants is that the daughter of the complainants had died on 07.12.2010 due to bad luck. It is also not disputed that Miss Ramneet Lamba life assured daughter of the complainant had expired on  07.12.2010 i.e. within a period of 9 months from the commencement of the policy in question which is duly evident from the photo copy of death certificate Annexure C-5 and death certificate showing cause of death issued by the PGI, Chandigarh Annexure C-6. Learned counsel for the complainants argued that the Ops Insurance Company has wrongly and illegally repudiated the claim of the complainants on the false and manipulated grounds whereas the life assured had died due to natural death. Learned counsel for the complainant  referred the case law titled as New India Insurance Company Ltd. Versus Priya Blue Industries Private Ltd. 2011(2) Supreme Court Cases page 60 wherein it has been held that “ Consumer Protection Act, 1986 Section 2 plea of suppression of material facts and repudiation of policy raised for the first time at the time of filing of written statement it is only a after though not to support which plea- evidence on record well considered- award passed by National Commission upheld. Lastly, prayed for acceptance of complaint.

8.                     On the other hand, learned counsel for the OPs argued at length that claim of the complainants has been rightly repudiated by the OPs Insurance Company vide its letter dated 11.05.2011 Annexure C-1/R-4 which is in detail and self explanatory. Learned counsel for the Ops further draw our attention towards the proposal form Annexure R-1 and argued that at the time of making the policy contract the life assured wrongly answered to the question No.71 and 74 and concealed the true and material information regarding her health related issues whereas from the medical record it is duly evident that she had a pre existing history of IGA nephropathy CKD-ESRD  which was prior to the date of proposal form dated 03.03.2010. The life assured Miss Ramneet Lamba was known case of suffering from Nephropathy IGA and Progressive Glomerulosclerosis prior to submission of proposal form which is duly evident from the medical record Annexure R-5 at page No. 33 to 41. Learned counsel for the OPs further argued that Miss Ramneet Lamba life assured died at same hospital i.e. PGI Chandigarh on 07.12.2010 with primary cause of death as raised ICT with meningitis and secondly cause of death as IGA nephropathy CKD-ESRD post renal transplant done in March, 2010. Lastly, learned counsel for the OPs argued that contract of insurance including the life insurance contract are based on principle of uberrima fides and the proposer is under solemn obligation to disclose all the material facts to the insurer at the time of taking the insurance policy, failing which the contract of insurance rendered void ab-initio, invalid and unenforceable. And lastly referred the case law titled as P.C. Chacko Vs. Chairman, LIC (2008) 1 S.C.C. page 321 wherein it has been very categorically held that “ the well settled law in the field of insurance is that contracts of insurance including the contracts of life assurance are contracts uberrima fides and every fact of materiality must be disclosed.”

                        Also referred the case law titled as Satwant Kaur Sandhu Versus New India Assurance Company Ltd (2009) 8 SCC page 316 wherein it has been held that “ in a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk is a material fact. If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form. Needless to emphasize that any inaccurate answer will entitle the insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance.

                        And referred the case law titled as Life Insurance Corporation of India and others Versus Asha Goel (2001) 2 SCC page 160 wherein it has been held that contracts of insurance including the contract of life assurance are contracts uberrima fides and every fact of material must be disclosed, otherwise, there is good ground for rescission of the contract.

                        Lastly, learned counsel for the Ops referred the case law tiled as Life Insurance Coporaton of India Versus Smt. Kusum Patre, Revision Petition No. 1585 of 2011 decided on 19.03.2012 and another case titled as Suraj Mal Ram Niwas Oil Mills (P) Ltd. Versus United India Insurance Co. Ltd. and another, Civil Appeal No. 1375 of 2003 decided on 08.10.2010 and lastly prayed for dismissal of complaint.

9.                     After hearing both the parties and going through the written arguments submitted by the counsel for the OPs and case law referred by both the parties, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of OPs as from the perusal of death certificate issued by PGI MS, Chandigarh Annexure R-5, it is duly evident that the deceased/life assured Miss Ramneet Lamba was having pre existing history of IGA Nephropathy, CKD-ESRD- post renal transplant. Further even from the perusal of surgical pathology report dated 12.01.2009 at page No.34 of the Annexure R-5, it is duly evident that deceased Manpreet Lamba was suffering from Kidney disease as in this report it has been specifically mentioned that “ Result- Kidney Biopsy shows 11 glomeruli, all of which are globally sclerosed with fibro-cellular crescent in two. There is moderate tubular atrophy alongwith moderate mixed inflammation and inters-titian fibrosis. Some of the tubeless also show protein absorption droplets. The arteries show hyperplastic arteriopathy with nodular halinosis. Immunofluorescence (F-18/09) show 4 scclerosed glomeruli one of which shows 2 to 3+ positively fro IGA in mesangium and bowman’s capsule. In addition trapping of C3 is noted along the periphery IgG and light is negative.

Overall features are of progressive glomerulosclerosis evolving from IgA nephropathy”

            Meaning thereby that from this report it is duly evident that the deceased miss Ramneet Lamba was having pre existing disease as this report is of dated 12.01.2009 whereas the policy in question has been obtained on 04.03.2010. We have also perused the proposal form Annexure R-1 wherein the deceased Miss Ramneet Lamba has answered the questions No.71 and 74 as “NO”. It is well settled principle of law that any incorrect information and false statement by the insured regarding health, age and income makes the insurance contract null and void. The same view has been held by the Hon’ble National Commission in case titled as Life Insurance Corporation of India Versus Meenu Kalita 2000(III) CPJ page 10 National Commission, even in another case titled as Mithoo Lal Versus Life Insurance Corporation of India AIR 1962 Supreme Court 814 Hon’ble Apex Court has held as under:

             “ Contract of life Insurance entered into as a result of fraudulent suppression of material facts by the policy holder- policy is vitiated- person holding assignment of policy cannot claim benefits of contract.

            Even in further case law titled as Modern Insulator Ltd. Versus Oriental Insurance Company Ltd. 2000 (2) Supreme Court Cases page No. 734 it has been held that “It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties knows……….”.

            Even in the latest law titled as Life Insurance Corporation of India Versus Bimla Devi 2016(1) CPJ page 57 wherein it has been held by the Hon’ble National Commission that “ in a contract of insurance, any fact which would influence the mind of the prudent insurer in deciding whether to accept or not to accept the risk is a material facts. If the proposer has knowledge of such fact, he is obliged to disclose its particularly while answering questions in the proposal form. Needless to emphasis that in any accurate answer with entitled the insurer to repudiate his liability because there is clear presumption that any information sought from the proposal form is material for the purpose of entering into a contract of insurance”.

            Even the same view has been held by the Hon’ble State Commission, Panchkula, in case titled as Smt. Bharpal Versus Birla Sun Life Insurance Company Ltd. in Frist Appeal No. 789/2016 decided on 24.01.2017.

10.                   In the present case, from the perusal of medical record at page No.36 to 41 of Annexure R-5 and death certificate issued by PGI, Chandigarh showing the cause of death, and from the surgical pathology report dated 12.01.2009 at page no.34 of Annexure R-5, it is duly evident that the deceased Miss Ramneet Lamba was suffering from pre existing disease. The case law referred by the counsel for the complainants is not disputed but not helpful in the present case whereas the case law referred above titled as Life Insurance Corporation of India Versus Meenu Kalita, Mithoo Lal Versus Life Insurance Corporation of India, Modern Insulator Ltd. Versus Oriental Insurance Company Ltd,  Smt. Bharpal Versus Birla Sun Life Insurance Company Ltd (supra) are fully applicable to the facts of the present case.

11.                   Resultantly, in the circumstances noted above, we are of the considered view that the insured had concealed the true facts regarding her health which was material at the time of obtaining the policy in question. Since the policy was obtained by the insured on mis statement and by concealing the true facts, so, the insurer is not liable to pay the sum assured to the complainants. Hence, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 14.06.2017.        

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

 

                                                                                     

                        (VEENA RANI SHEOKAND)         (S.C.SHARMA )

                         MEMBER                                           MEMBER.