SMT. CHANDRIMA CHAKRABORTY, MEMBER
Claiming himself as a Complainant, the Complaint was filed by the Complainant seeking the redrssal against the Opposite Parties.
In epitome, the fact of the case is that the deceased father of the complainant Manmatha Gude @ Gure had purchased a policy of life Insurance from the OP TATA AIA Life Insurance Company Ltd. being policy No. C232373026 for the period from 28.02.2017 to 28.02.32. Said Manmatha Gude @ Gure died on 10.11.2017. The Complainant submitted all relevant documents before the Opposite Parties and prayed for the insurance coverage of Rs. 487680/- only.
On 02.02.2018 the Opposite Party sent a letter to the complainant informing that the policy is canceled since its inception and there is no liability of the company to pay the insurance coverage and repudiated the same. It is further case of the complainant that the OP canceled the policy after 10 months from the date of issue which is contrary to natural justice and is improper. The complainant asserts that this act of the OPs is a deficiency in service resulting the loss of Rs. 487680/- only which is due on account of his deceased father's insurance.
In the above circumstances the complainant has prayed for a direction upon the OPs to pay the above insurance claim and other adequate reliefs.
Both the Opposite Parties contested the case by filing a single written version wherein they denied the case of the complaint and stated inter alia that Manmatha Gude approached the Opposite party for a policy namely “ TATA AIA Life Insurance Gold Income Plan”. In the usual course the representative of the Ops asked the said Manmatha Gude to fill up an application form. The Policy was issued with risk commencing from 28th march 2017 being policy No. C232373026 after completely understanding the terms and conditions of the policy the insured signed the same form. In the said proposal form the health details of the insured was furnished in details wherein the insured answered in the 'negative' against questionnaire Nos. 2 ,3 and 4 and in 'affirmative' against question Nos. 1 and 3 regarding life style details.
The OP issued Insurance Policy on the basis of such responds of the insured in the proposal form. The OP subsequently made requisite investigation and discovered said Manmatha Gude had been bed ridden / Paralyzed during one and half years back. The Opposite Party further procured a certificate from Baishnabchak gram panchayet and found that the deceased was a beneficiary of old age pension scheme of the Govt. of West Bengal and also a recipient of Geetanjali Housing Scheme under the Govt. West Bengal and was suffering from paralysis. It is the further case of the OP that the DLA declared his annual income at the time of failing the application form as Rs. 500000/- from a proprietary farm and the DLA belonged to BPL regarding life style details. The OP issued Insurance Policy on the basis of such response of the insured in the proposal form. The OP subsequently made requisite investigation and discovered that said Manmatha Gude had been bed ridden / Paralyzed during one and a half years back. The Opposite Party further procured a certificate from Baishnabchak Gram Panchayet and found that the deceased was a beneficiary of old age pension scheme of the Govt. of West Bengal and also a recipient of Geetanjali Housing Scheme under the Govt. West Bengal and was suffering from paralysis. It is the further case of the OP that the DLA declared his annual income at the time of filling the application form as Rs. 500000/- from a proprietary farm. The DLA belonged to BPL Category.
The Ops contends that in the policy application form the complainant suppressed some material facts which negatives the claim of the complainant. Further the complainant himself was an agent of the Opposite Party company being agent Code No. 4618281. He signed the declaration form knowing all the terms and conditions of the policy.
In the above circumstances the Ops pray for dismissal of the complaint on the sole ground that the DLA suppressed some materials fact in the policy documents.
POINTS FOR DETERMINATION
I. Whether the complaint is maintainable in its present form ?
- Whether the complainant is entitled to get the reliefs as prayed for ?
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Contentions of the Ld Advocates for the parties
Ld Advocate for the complainant has submitted that the complainant is the son of the deceased life insured. The complainant submitted all relevant documents to the OP to release the claim but the ops informed the complainant that the policy being no- C232373026 had been canceled since its inception absolving of its any liability to pay; according to him it is improper. He has pointed out that this complainant received claim of Rs.4,87,680/- against the death of his father ,deceased life assured in similar circumstances from the Future General India Life Insurance Co. Ltd. He also received claimed amount from the LICI. He has added that the ops have illegally canceled the insurance on a baseless ground of suppression of information regarding pre-existing disease of the life assured and practicing fraud by the complainant. He has contended that the ops have failed to prove by producing medical documents that the deceased life assured has pre-existing disease. According to him the ops have committed deficiency in service. Hence the complaint case should be allowed.
Per Contra
Ld Counsel for the ops submitted that on account of suppression of pre-existing disease the ops had rightly canceled the insurance in view of the mischief of the provision under section 45 of the Insurance Act. The ops have not committed any deficiency in repudiating claim. The purported demand contained herein is clearly actuated by ulterior motives and with intent of illegally profiteering.
It is also submitted that insurance is governed by the legal doctrine Uberrima fides meaning utmost good faith. This means all parties to an insurance contract must deal in good faith making a full declaration of material facts in the insurance proposal.
OPs conducted an investigation in respect of this policy, and understood that the insurance policy in question was fraudulently obtained by concealing the true health status of the deceased insured at the time of proposal .The issuance of the insurance policy is the result of non-disclosure of material fact and concealment with clear intent to cheat the company. Thus the insurance policy was void ab initio. The instant claim is barred by provisions of section 45 of the Insurance Act,1938. He has added that Complainant was the agent of the Op at the relevant time. Complainant along with his deceased father made false statement .The ops had terminated the agent ie the complainant from their system and he had been blacklisted. Therefore, the complainant has failed to prove any deficiency in service and unfair trade practice against the ops. As such the instant claim case is liable to be dismissed with costs.
Decision with reasons
Re: Points no-I & II:- Both the points, being inter related , are taken up together for discussion and decision for sake of brevity and convenience.
We have given thoughtful consideration to the rival contentions advanced by the the Ld Advocates for the parties and examined the evidence produced by both parties and other materials on record. The facts and circumstances of the case reflect that the the instant case is maintainable in its present form and in law. Indisputably, the father of the complainant purchased the insurance policy in question from the op insurer. Now, let us examine carefully whether the complainant has been able to show any deficiency of service against the ops or not. There is no dispute that life assured died within less than 8 ( eight) months since inception of the insurance policy. Now, it is the allegation of the ops that the deceased had pre-existing disease, he was suffering from paralysis. This fact was suppressed.
Admittedly ,Complainant who posed himself as the nominee of the deceased life assured was the Agent of the Principal herein the Ops. The Principal Agent relationship is an arrangement in which one entity legally appoints another to act on its behalf In a Principal Agent relationship, the agent acts on behalf of the Principal and should not have a conflict of interest in carrying out the act. Five duties of the Agent are:-Performance-doing the Job using reasonable skill and care. Notification- Obligation to keep principal informed .Loyalty- Act solely for the interest of the principal. Obedience-follow all lawful orders. Accounting- Not to mix personal assets with property of the principal. Insurance agent may owe a fiduciary duty to both to the company it represent and to the insurance buying public. The agent occupies fiduciary position ,and,therefore,it his duty not to do any thing which would bring his personal interest and his duty to the principal in conflict with each other. The conflict invariably arises when the agent is personally interested in the principal's transaction. Section 215 of the Contract Act,1872 mandates the duty of an agent to avoid conflict of interest. When agent buys an insurance policy in his fathers name showing the agent himself as nominee , a conflict of interest would surely surface . There involves absolute good faith in the conduct of act of agency. If the principal itself points out the fraudulent acts on the part of the agent posing himself as a nominee, it is a conflict of interest of the agent with the principal. It is also the duty of the agent ,knowledge which is acquired by an agent in the course of business of agency he must share it with the principal ; and which he converts into disadvantage require accountability. When the agent acts otherwise, if any loss sustained ,he must make it good to his principal.
Now, having given our anxious consideration to the evidence in the nature of investigation report including the certificate issued by Baisnabchak Gram Panchayat , we find that the deceased life assured was suffering from paralysis since prior to buying the insurance policy in question, the complainant ,a nominee who made the deal as an agent suppressed the said facts which he was bound to disclose to his principal. It is further evident from the investigation report that life insured belonged to BPL category ,he used to get benefit of old age pension and recipient of Geetanjali Housing Scheme; but he disclosed his annual income at Rs.5 lakh. He gave false statement to the insurer.
Moreover, the Complainant a signatory to the said declaration form can not disown his duty as an “Agent”. Insurance is a contract of utmost good faith. Failing to report the pre-existing disease at the time of entering into insurance contract is a decisive and a determinate factor against the complainant. The agent being posed as nominee in the present case has caused a conflict of his interest violating the norms of contract. The contentions of the Ld Advocate for the complainant to the effect the ops have to discharge the burden of proof by adducing medical evidence or producing medical report regarding pre-existing disease has got no leg to stand upon.
In the instant case the OPs have produced the certificate from the Gram Panchayat. There is no reason to disbelieve the Certificate issued by the Gram Panchayat .
In State of Nagaland vs Lipok AO and Others, (2005) 3 SCC 752, the Hon'ble Court after referring to New India Insurance Co. Ltd. Vs Shanti Misra,(1975) 2 SCC 840 ,N. Balakrishnan vs M. Krishnamurthy, AIR 1998 SC3222,State of Haryana vs Chandra Mani,(1996) 3 SCC 132 and Special Tehesildar, Land Acquisition vs K.V.Ayisumma, (1996) 10 SCC 634, has been pleased to hold that adoption of strict standard of proof sometimes fails to protect public justice and it may result in public mischief. The facts and circumstances of this case in hand is a peculiar one, this complainant while acting as agent placed himself as the nominee a prospective beneficiary in case of the death of the life assured, such a case can not be put in any straight jacket formula that the ops should be burdened with strict proof of the facts of pre- existing disease .
Here, a question may arise as to why the agent did not take any step for medical examination of the life assured before giving proposal for insurance on behalf of the insurer/principal; the agent violated the duty of the agent. The claimant/Complainant -cum agent the nominee in disguise can not absolve his liability of performance with skill and full care ; now he can not be allowed to blow hot and cold in the same breath that the ops are bound to prove by medical certificate that the life assured was suffering from any pre-existing disease or the ops did not take any step for medical examination of the life assured before issuing insurance policy. It has also come to light that the agent herein the complainant has been terminated from his job of agency by the ops in the meantime and he has been black listed. The complainant has not come before this forum with clean hand. He might have received the benefits from other insurance Company but this can not be taken as precedent in the case in hand, here the complainant himself has played a dual role the agent and the nominee .We, from our above discussion,are of the view that there was no deficiency in service on the part of the OPs . So the complainant is not at all entitled get any relief against the OPs in the instant case.
Thus the unanimous decision of the Forum is that the Complainant fails to prove his case.
In the results the instant Complaint Case fails.
Thus we pass the
O R D E R
That the Complaint case being no. 140 of 2018 be and the same is dismissed on contest ,however without any costs.
Let a plain copy of this judgment be supplied to the parties of this case free of cost.
