Date of Filing: 25.11.2013 Date of Final Order: 12.05.2015
Smt. Anita Das Sarkar, W/o. Late Ramani Kanta Sarkar, has filed the present case U/S 12 of the Consumer Protection Act, 1986 against the Opposite Parties praying for issuing a direction upon the Opposite Parties to pay the policy amount as death benefit to the Complainant also to pay compensation, deficiency in service and cost amounting of Rs.4,10,000/- in total and other relief(s) as the Forum may deem feet and proper.
The gist of the complaint as culled out from the record is that the husband of the Complainant during his life time obtained a policy from the O.P. No.1 i.e. Life Insurance Corporation of India, Cooch Behar Branch through their agent with assurance that they will render proper service towards the policy holder. The O.P. No. 1 after observing all the formalities issued a Policy Certificate bearing No.453870334, dated 28-03-2005 sum assured of Rs.3,00,000/-, in favour of the Deceased Policy Holder Ramani Kanta Sarkar and the husband of the Complainant used to pay the premium of Rs.5557/- quarterly until his death. At the time of taking said policy the deceased Ramani Kanta Sarkar had nominated to Smt. Anita Das Sarkar, the present complainant as his nominee being the wife for getting death benefit from the O.Ps in the event of his death.
On 26-01-2012, husband of the Complainant felt cardio-respiratory problem and after consultation with a doctor he was admitted in the Shila Nursing Home but unfortunately, he expired on 31.01.2012 at about 9.45p.m due to Cardio-respiratory failure. After the sad demise of husband the complainant being the nominee and beneficiary of her deceased husband preferred a claim to the O.P. No.1 and their higher authorities, O.P. No.2, along with original Policy Certificate, Death Certificate and Xerox copy of other supporting documents. After receiving the said claim the O.P. No. 2 issued a letter on 19.07.12 stating that all the money under the policy stands forfeited and advised to send her claim to the Zonal Office for reconsideration. As per advice of the O.P. No. 2 the Complainant again placed her claim before the Zonal Office but on 15.11.2012 by a letter informed the Complainant that the decision of the Divisional Office is upheld for which it is not possible to settle the claim. In this way the O.Ps harassed the Complainant in various ways instead of settling the genuine claim and thereby causes gross deficiency in service on their part and the Complainant suffered irreparable loss and injury due to negligence act on the part of the O.Ps. Thus, finding no other alternative the Complainant has filed the present case before this Forum seeking redress and relief.
Hence, the complainant filed the instant case No. DF-147/2013 with enclosed some Xerox copy of documents together with ten I.P.Os. of Rs.200/- before this Forum for redress of the dispute and prayed for direction to the O.Ps to (1) Rs.3,00,000/- as death benefit of deceased policy holder, (2) Rs.50,000/- as compensation for mental pain, agony & unnecessary harassment, (3) Rs.50,000/- for deficiency in service, (4) Rs.10,000/- towards litigation cost, besides other relief(s) as the Forum deem fit, as per law & equity.
The Opposite Parties after entered their appearance jointly, through Ld. Agent have contested the case by filing written version contending inter-alia that the case is not maintainable either in fact as well as in law; the present case is vexatious and liable to be dismissed with cost etc. The main contention of the O.Ps is that the deceased husband of the Complainant obtained the policy by suppressing all material facts concerning his health. The said deceased policy holder was under treatment for Diabetic Millitus and Hyper Tension for the last 12 years i. e. prior to commence of said policy and with that pre-existing disease he obtained the policy by suppressing such ailments. The DLA was under constant treatment of Dr. S. C. Saha, MD, M.R.C.P, F.C.C.P, F.I.C.A, and F.R.C.P for such Diabetic Millitus and Hyper Tension but he did not disclose such fact at the time of taking the Policy in question. The further contention of the O.Ps. is that the LICI act on good faith and a policy is a contract between policy holder and the Corporation based on utmost good faith and the present case in hand there is suppression of material facts resulting breach of trust on the part of DLA. During the scrutiny as to the death claim of the Complainant the O.Ps observed that there is gross suppression of material facts concerning the health of DLA and for which the O.Ps repudiated the claim of the Complainant. Thus the O.Ps have no deficiency in service and the present complaint is deserve to be dismissed with cost.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service by repudiating the claim of the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.1 & 2.
On perusal the record it appears that the deceased husband of the Complainant during his life time obtained a Life Insurance policy from the Opposite Party Company. The Opposite Party No 3 issued a policy in favour of the DLA against received of certain premium. The present Complainant is the Nominee of the DLA. Thus the relation of the Complainant with the Opposite Parties as came to be established from the record we are convinced to hold that being the Nominee, the Complainant is the consumer of the Opposite Parties.
In the present case the Branch Office of the O.P. No. 1 is situated in this district also this complaint valued at Rs.4,10,000 /- i.e. within prescribed limit as per C.P. Act for which there is no dispute in the point of territorial as well as pecuniary jurisdiction.
Thus, the above points are decided in favour of the Complainant.
Point No. 3 & 4.
Both the points are taken up for together for convenience of discussion. Admittedly deceased Ramani Kanta Sarkar, H/o of the complainant, Anita Das Sarkar took a policy from the O.P. No.1 i.e. Life Insurance Corporation of India, Cooch Behar Branch on 28-03-2005 after filling up the Proposal Form and after considering declaration made by Ramani Kanta Sarkar and requisite documents submitted by him his proposal was accepted and policy certificate was issued in the favour of late Ramani Kanta Sarkar. Sum assured of said policy was Rs.3,00,000/- quarterly subscription was fixed at Rs.5557/- and the present complainant, Anita Das Sarkar was made his nominee being his wife for getting death benefit from the O.Ps.
It is also admitted fact that on 31-01-2012 said Ramani Kanta Sarkar had died due to Cardio-respiratory failure. It is the case of the complainant that she has filed an application for getting death benefit of her husband but the O.Ps did not pay any heed.
It appears from the letter dated 19/07/2012 issued by LIC that it was informed to the complainant, Anita Das Sarkar by the O.P, LIC that in the proposal for Assurance dated 22/03/2005 signed by the deceased assured on 22.3.2005 he had answered the following Questions as under noted :
QUESTIONS ANSWERS
Q. No.11 in Proposal.
- During the last Eve years did you consult a Medical Practitioner NO
for any ailments requiring treatment for more than a. week?
- Have you ever been admitted to any hospital or nursing home NO
for general check up, observation, treatment or operation?
(e) Are you suffering from or have you ever suffered from Diabetes, NO
Tuberculosis. High Blood Pressure, Low Blood Pressure, Cancer,
Epilepsy, Hernia, Hydrocele, Leprosy or any other diseases?
(i) What has been your usual state of health? GOOD
In the said letter the O.P., LIC also stated that all these answers were false as they have evidence and reason to believe that before he proposed for the above policy he had suffered from Type- H Diabetes Mellitus and Hypertension for which he had consulted medical men and taken treatment from them. He had not however, disclosed these facts in his proposal instead he gave false answers therein as stated above.
In the said letter the O.P., LIC also stated that it is therefore, evident that he had made deliberate misstatement and withheld material information from them regarding his health at the time of effecting the assurance and hence in terms of the policy contract and the Declaration contained in the forms of proposal for Assurance, they hereby repudiate the claim and accordingly they are not liable for any payment under the above policy and all moneys that have been paid in consequence thereof stand forfeited.
But in view of ruling reported in AIR 1991 SC 392 in the contract between life Insured and Insurance Company, assured under solemn obligation to make full disclosure of material facts but allegation of Insured being guilty of making false representation and suppressing material facts, burden of proof is upon the Insurance Corporation to prove the same.
So, it is clear from above cited ruling that burden is upon the O.P/Insurance Company to prove that Insured had given false information regarding his ailment.
We find that though in their letter dated 19/07/2012 the O.P., LIC claimed that insured/deceased husband of the complainant gave false information regarding his state of health regarding Q. No.11 in proposal Form but no such Form is forth coming before this Forum.
It is the specific case of the O.P., LIC that the insured had been suffering from Type-II, Diabetes, Mellitus and Hypertension.
But no scrap of paper is forth coming before the Forum regarding alleged ailment of the insured.
Rather the O.P., LIC has filed certified copy of a final order passed in DF Case No.148/2013 by this Forum regarding same complainant, Anita Das Sarkar against another Life Insurance Company i.e. Tata AIG Life Insurance Company Ltd. claiming compensation regarding death claim of her husband, Ramani Kanta Sarkar, which was dismissed.
We find from the said final order that in said case, the O.P produced the copy of the Application Form to show that against the question whether, the insured had been suffering from Diabetes, High Blood Sugar in urine, he answered NO and regarding High or Low B.P (Blood Pressure) or raised Cholesterol, he answered NO.
But in present we have already stated that no such proposal Form has been produced by the O.P., LIC.
We further find that in the said case by filing Prescription of Dr. Subhas Ch. Saha and Dr. R. Dey Biswas and Reports issued by Diagnostic Centre, The O.P., Tata AIG LIC was able to prove that the insured had been suffering from Diabetes and Hypertension.
But in this case the O.P., LIC has made no attempt to prove such ailment of insured by submitting any paper.
We think that each case has its own merit and only by filing copy of final order passed in DF Case No.148/2013 and without filing any scrap of paper, the O.P., LIC cannot avoid their liability to prove the fact of false statement submitted by the insured before them and he had been suffering from chronic disease like Diabetes and Hypertension.
More So, in view of S13(2) (b) (i) of the Consumer Protection Act, District Forum shall proceed to settle the Consumer dispute on the basis of evidence brought to its notice by the parties and not evidence produce in other case.
So, considering overall matter into consideration, we have no other alternative but to hold that O.P., LIC has failed to discharge their burden to prove that insured being guilty of making false representation and suppression of material facts.
In their written argument the O.P., LIC has mentioned some rulings reported in 2012 CPR 247 (N.C), 2012 CPR 278 (N.C), 2012 (3) CPR 60 (T.N), 2012 (3) CPR 32 (Chhatt), 2012 (3) CPR 185 (N.C). But no such rulings are cited before this Forum during argument.
So, we are unable to go through those rulings and to say whether said rulings are relevant to the present case or not.
Considering overall matter into consideration and materials on record we are constrained to hold that the O.P., LIC acted illegally in repudiating the claim of the complainant and thereby guilty of deficiency in service and the case is liable to be allowed.
So, these points are decided in favour of the complainant.
Thus, the case succeeds.
ORDER
Hence, it is ordered that,
The DF Case No.147/2013 be and the same is allowed on contest with costs of Rs.5,000/-.
The O.P. No.1, The Branch Manager, Life Insurance Corporation of India, and the O.P. No.2, The Divisional Manager, Life Insurance Corporation of India, are directed to pay Rs.3,00,000/- to the complainant, Anita Das Sarkar as death benefit of her deceased husband and also directed to pay Rs.50,000/- as compensation of mental pain, agony harassment and deficiency in service. The entire ordered amount paid by the O.Ps jointly and/or severally within 45 days of this order, failure of which O.Ps are to pay @ Rs.100/- each for each day’s delay & the accrued amount, if any shall be deposited in the “State Consumer Welfare Fund”, West Bengal.
Let plain copy of this Final Order be supplied, free of cost, to the concerned parties/Ld. Advocate by hand/be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
President President
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member Member
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
