DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KANDHAMAL, PHULBANI
C.C.NO.04 OF 2015
Present: Sri Rabindranath Mishra - President.
Miss Sudhiralaxmi Pattanaik - Member .
Sri Purna Chandra Tripathy - Member .
Bipra Charan Patra, aged 65 years
S/O: Late Laxman Patra At: Chidananda Vihar,
College Road Phulbani PO/PS: Phulbani Dist : Kandhmal ……………………….. Complainant .
Versus.
1. Branch Manager,
L.I.C of India, Phulbani Branch.
At/Po/PS: Phulbani Dist: Kandhamal.
2. The Divisional Manager,
L.I.C of India, Berhapur Divisional Office,Jeevan Prakash
AT-Khodasingi PO: Berhampur Dist: Ganjam. …………………………….. OPP. Parties.
For the Complainant: Sri Rajib Kumar Pradhan, Advocate, Phulbani
For the OPP. Parties: Sri Bijay Kumar Mohanty, Advocate, Phulbani
Date of Order: 24-05-2017.
O R D E R
The case of the Complainant in brief is that his wife had started an Insurance policy bearing No. 572914059 on 04-06-2010 under L.I.C of India and the sum assured to the tune of Rs. 15,00,000/- for 20 years . The risk for the said policy was commenced on 31-07-2010. The wife of the Complainant was diagnosised by Hi-Tech Medical College and Hospital, Bhubaneswar on 08-01-2011 that she was suffering from lungs cancer. On 06-12-2011 his wife breathed her last in spite of the best efforts of the doctors. So, the Complainant lodged a claim before the O.ps on 17-03-2012 to get death benefit of his wife. As the O.Ps failed to settle-up the claim, the Complainant filed a complaint before the Insurance Ombudsman, Bhubaneswar bearing complaint No.21-001-1863 which was registered on 23-05-2013. On 25-11 2014 the matter was heard in absence of the Complainant as he
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was out of the State. The learned Ombudsman dismissed the complaint on 10-12-2014 on the ground that the wife of the Complainant had suppressed the material fact regarding to her life condition at the time of taking up the Insurance policy. They had no knowledge regarding the lungs cancer of the deceased at the time of commencement of the Insurance policy and no such treatment was continuing at that time. Hence, the Complainant is entitled to get the Insurance benefit being the bonafide nominee of his wife late Ranjita Patra. So, this complaint was filed by the Complainant as non settlement of the death claim amounts to deficiency in service on the part of the O.Ps.
The Complainant prays for a direction against the O.Ps to settle-up the Insurance claim of the Complainant and to pay the total amount with 18% interest per annum from the date of filing the claim till the date of final settlement along with compensation of one lakh rupees only towards his mental agony and financial loss and also cost of litigation.
The case of the O.ps as per their joint version is that the deceased policy holder Late Ranjeeta Patra was under treatment at Hemalata Hospital and Research Center during the period of July and August 2009 as she was suffering from lungs cancer before 2 years prior to her death on 06-12-2011. The deceased was also under treatment at Indo American Cancer Institute, Hyderabad during the year 2010 and the history recorded at the said Hospital indicates that the cancer was diagnosised and chemotherapy was already given to her. The papers of this said treatment were not handed over to the O.ps by the Complainant and he intentionally suppressed the relevant papers relating to previous treatment of the deceased.
The further case of the Opp. Parties is that the deceased Ranjeeta Patra had taken eight numbers of policies prior to her treatment of cancer and as such the O.Ps have settled the claims of those policy as those were initiated much prior to her suffering from lungs cancer. The medical Officer Dr. Sidhartha Pattnaik of Hemalata Hospital, Bhubaneswar advised and referred the deceased to Dr.Kshtish Chandra Mishra, Asst. Professor, Department of Oncologist, Hi-Tech Medical college and Hospital Bhubaneswar for further treatment and accordingly the deceased was under treatment for lungs cancer at the Hi-Tech Medical college and Hospital Bhubaneswar during the Year 2011.The concerned doctor Dr K.C Mishra reported that she was suffering from this disease for 2 years before her death.The policy holder had taken this Insurance policy by suppressing the material facts regarding her health and treatment for which the O.ps have not caused any deficiency in service as well as not neglected in their duties. Hence, the Complaint is not maintainable and the Complainant is not entitled to get any compensation as claimed.
During course of hearing the Complainant has filed an affidavit in token of his evidence. He was examined and cross examined. The documents filed by the Complainant were marked as Exit-1 to Exit-19. One Smt. Minati Samal (Manager Legal) L.I.C of India was examined on
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behalf of the O.Ps and also cross examined. The documents filed by the O.Ps were marked as Exit-A to Exit-G/1.
We have heard both the learned counsel appearing for both the parties. We have gone through the complaint petition, the joint version filed by the O.ps, the affidavits filed by the Complainant in token of his evidence, the depositions of the witnesses, the documents marked Exhibits from both sides and the written arguments submitted by both the parties. As per pleadings of both the parties the following issues are framed by us for better adjudication of the case:-
1)Whether the deceased wife of the Complainant while obtaining the insurance policy, concealed the fact that she was suffering from lungs cancer?
2)Whether the Complainant is entitled to get any relief as claimed by him in his complaint?
During course of argument the learned counsel for the Complainant has contended that since the OPP. Parties have taken the plea of concealment of material fact while filing the proposal form for obtaining insurance policy, the onus of proving the concealment was on the Opp. Party. The O.P has failed to discharge the said onus by adducing evidence and since the concealment has not been proved, the complainant is entitled to get the death claim of his deceased wife.
The counsel for the Opp. Parties on the contrary has argued that the insurance policy was obtained by the insured by concealing the material fact that she was suffering from lungs cancer which reveals from Exit-g, supplied by Hemalata Hospital & Research Centre, Bhubaneswar.
ISSUE NO:1 :- It is admitted fact that the deceased Ranjita Patra started the Insurance policy on 04-06-2010 during her life time for Rs. 1500,000/- ( Rupees fifteen Lakhs) only by paying first premium amounting Rs. 18,000/- to O.P No.1 as reveals from Exit-1. It is also admitted that the policy holder died on 06-12-2011 at Hi-tech Medical College and Hospital, Bhubaneswar as per Exit-2, the copy of the death certificate. It is admitted that the proposal form for the said policy was submitted on 04-06-2010 as per Exit-1. It is also admitted that the deceased Ranjita Patra died due to cancer leading to respiratory failure as per Exit-9 and Exit-D. So, the main point for consideration is that whether the deceased was under treatment for cancer on or before 04-06-2010 and she was aware regarding such disease by the time of filing the proposal form on the said date.
It is seen from Exit-13,14,15,16,17 and 18 that the deceased had check-up herself on 28-11-2010 for the first time at Apex Diagnostic centre , Cuttack and subsequently on 30-11-2010, 03-12-2010 and on 07-12-2010 with respect to some pathological test. In those reports it was remarked by the doctors that there was lack of any evidence of malignancy and the malignant cells were negative. The deceased was admitted before High- Tech Medical college and Hospital on 25-11-2011 as per Exit-19.
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The O.P has filed a photocopy of Discharge Summary dated 25-11-2011 of Hemalata Hoispital & Research Centre, Bhubaneswar vide Exit-g. Exit-g/1 is the letter dated 17-12-2015 sent by the O.P through e-mail to Hemalata Hospital for treatment particulars of deceased Ranjita Patra. On perusal of Exit-g it is seen that treatment of the deceased was completed in July- August- 2009 and recently presented with headache and vomiting. So, it is not clearly established from Exit-g that the deceased was under treatment in cancer on the relevant date i.e 04-06-2010. Moreover from Exit-19 it is seen that the deceased was admitted at High Tech Medical College and Hospital, Bhubaneswar on 25-11-2011. So, how she was under treatment at Hemalata Hospital & research Centre, Bhubaneswar on the same date. The photocopy marked as Exit-g was not attested by the medical authority or by the concerned doctor. The same is attested by one manager of L.I.C of India. The O.P has not filed any affidavit in this regard nor the concerned doctor was examined to prove the said photocopy marked as Exit-g. So, Exit-g has no evidence at all to support the plea of the OPP. Parties. As per settled principle of law the burden lies with the Opp. Parties ,Insurance Company to prove that the deceased was suffering from cancer and she was undergoing treatment for the same prior to filling the proposal form and she deliberately suppressed the same at the time of filing the proposal form.
In this regard we relied on the following decisions given by the Hon’ble National Commissioin. Those are:
- 2012- CPJ-84(NC)- Tarlok Chand Khanna Vs. United India Insurance company Limited.
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2)2005-CPJ (NC)- National Insurance Company Limited Versus Bipul Kundu.
3)2014(3) CPR-401(NC) –SBI Life Insurance Co. Ltd versus Harvinder Kaur & Anr.
Hence the OPP. Parties failed to produce any primary evidence to establish the ground for repudiation of the claim. Accordingly it can not be said that the deceased was suffering from lungs cancer and suppressed the fact at the time of filling the proposal form on 04-06-2010.
The O.P relied on Exit-D the Medical attendant’s certificate where it is mentioned in coloumn-4 that the deceased had been suffering since 2 years before death. The same certificate is also filed by the Complainant which is marked as Exit-9 .Both Exit-9 & Exit-D are same and photocopy. In this regard the concerned doctor who recorded the certificate was not examined to prove the same. The doctor has also not filed any affidavit for the purpose. The original record of the Hospital was also not called-for to prove the same. As the nature of this evidence is secondary and the O.P failed to produce any primary evidence to establish the ground of repudiation of the claim, it can not be proved that the deceased concealed the fact while obtaining the Insurance policy. Even if Exit-D will be taken into consideration , there is nothing to show that the deceased was aware of the fact that she was suffering from cancer at the time of filing the proposal form. The knowledge of the Complainant is also not established in this regard. So, it can not be presumed that the deceased was suffering from cancer and she was aware of such disease by the time of filling in the proposal form in absence of any positive evidence.
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Accordingly, the contention of the O.P can not be accepted and the above issues are answered in view of the above decisions.
As per above discussion the complaint filed by the Complainant is allowed and he is entitled to get the death benefit of his deceased wife being her nominee. Hence the Opp. Parties are jointly and severally directed to pay the full and final death claim of the policy holder to the Complainant, the nominee and the husband of the deceased in connection with policy No. 572914059 dated. 04-06-2010 within 30 days from the date of receipt of this order, failing which the same shall carry interest at the rate of 10% per annum from the date of order till the date of payment.
The C.C is disposed-of. Supply free copies of this order to both the parties at an early date.
MEMBER MEMBER PRESIDENT
