Date of Filing: 13-12-2013 Date of Final Order: 30-08-2016
Smt. Runa Ganguly, President-In-charge.
The factual matrix of this case is that deceased Biswanath Saha i.e. husband of the Complainant, during his lifetime had taken the Life Insurance Policy bearing No.453138685, sum assured Rs.30,000/- date of commencement 28/02/2004 from the O.P. No.1, Life Insurance Corporation of India, Cooch Behar Branch through their agent Sri Kalyan Das, S/o. Subhod Ch. Das i.e. the O.P. No.3 and has been paying premiums in respect of the said policy and the O.Ps assured that they will render proper service towards the policyholder.
It is the case of the Complainant that deceased Biswanath Saha at the time of taking the policy had nominated the present Complainant, Smt. Dolly Saha as his nominee being the wife for getting the death benefit from the O.Ps in the event of his death. Prior to the death of deceased Biswanath Saha, he made payment all the installments of aforesaid policy premium to the O.P. No.1, through their agent.
On 21/02/2009 the policy holder namely Biswanath Saha, died due to cardio aspiratory failure in a case of chronic Renal failure at Sunrise Nursing Home Pvt. Ltd., Siliguri. Deceased Biswanath Saha, left behind him the Complainant as his legal hair, nominee & beneficiary.
After the sad demise of policyholder Biswanath Saha, the Complainant Smt. Dolly Saha, accordingly being the sole nominee and being beneficiary of her deceased husband preferred claim to the O.P. No.1 on 01/08/2009 along with the all relevant supportive documents (original policy deed, death certificate , Claim Form -A, Claim Form – B — Certificate of Hospital Treatment, Medical Attendent’s Certificate, Claim Form - C) with a request to get the death benefit. After submitting the said documents the O.P. No.1 issued an acknowledgement receipt to the Complainant.
After submitting the claim documents the O.Ps did not settle the said claim. The Complainant made several contact to the O.P. No.1, 2 & 3 for settling the aforesaid claim but no any response has been received on the part of the O.Ps.
Finding no other alternative the Complainant sent a legal notice Regd. With A/D, on 23/10/2013 to the O.P. No.1 for the purpose of obtaining death benefit claim of the said policy and the O.P. No.1 received the said legal notice on 26/10/2013.
Subsequently, on 29/10/2013 the Complainant received a letter from the O.P. No.1 which reveals that the said policy claim has been repudiated by the competent authority. The O.Ps have wrongly and illegally repudiated the claim of the Complainant without any ground. The Complainant is the nominee of life assured and being beneficiary is entitled to get compensation from the O.Ps as prayed by the Complainant.
Due to such activities of the O.Ps the Complainant is suffering irreparable loss and injury and great financial problem. The Complainant also suffered from acute mental pain and agony, and unnecessary harassments. There was also deficiency in service and negligence on the part of the O.Ps.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.Ps to pay (i) Rs.30,000/- as death benefit of deceased, (ii) Rs.30,000/- as compensation for mental pain and agony and unnecessary harassment, (iii) Rs.30,000/- for deficiency in service, (iv) Rs.5,000/- towards litigation costs, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1, The Branch Manager, Life Insurance Corporation of India, Cooch Behar Branch and the O.P. No.2, The Divisional Manager, Life Insurance Corporation of India, Jalpaiguri have contested the case by filing Written Version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.Ps is that the Deceased Life Assured (DLA), Biswanath Saha by suppressing of real state of affairs with regard to his health condition, who obtained one LIC policy from the Branch office Cooch Behar of the O.Ps for a S. A. of Rs.30,000/- and due to non-payment of premium, the said policy became lapsed. Subsequently, the DLA approached for the revival of the said policy and the same was revived on 20/12/2008 on the basis of "Personal Statement Regarding Health" Form No.680 where the DLA suppressed his previous illness and DLA died on 21/02/2009 just after 63 days after the Revival of the said policy where DLA deliberately suppressed his previous illness by answering "Negatively" in Column No.2(a) (i to viii), (b), (c), & Q.4 as “Good health”.
It is the case of the O.P. No.1 & 2 that if death arises within 2 years from date of Commencement/Revival/Reinstatement of a policy, it is called an early claim and as a rule, to find out bona fide of the claim, necessarily, the treatment particulars viz. Pathological Test Reports, Reports of any other major investigation conducted and Case History Sheet/Bed Head Ticket etc. are called for from the Claimant/concerned Hospital or Nursing Home to be confirmed whether there was any fraudulent intention while entering into contract of insurance.
In the present case, it is clear that the deceased policy holder while signing the Form No.680 for revival suppressed his previous illness deliberately. This is a clear case of suppression of material facts. Insurance is contract of "Uberrima Fide" i.e. Utmost Good Faith where both the parties are required to state all the material facts. But the DLA had suppressed these material facts and this suppression had been fraudulently made by the DLA and the DLA knew these at the time of signing the proposal form as well as Revival (Form No.680) for effecting Insurance as well as Revival of the said policy.
The O.P. No.1 & 2 further contended in their W/V that the policy in question was in lapsed condition due to non-payment of premium for 3 occasions after date of acceptance of the policy viz. dated 08/11/2006, 27/02/2008 and lastly on 20/12/2008 on the basis of "Personal Statement Regarding Health (Form No.680) as per set of designed questions therein. But on all the occasions the DLA answered negatively in response to Question No.2(a) (i to viii), (b), (c) although we have cogent proof that the DLA was a chronic patient of Kidney disease and he was under constant treatment of Dr. B. Dutta, M.D. Specialist in Diabetic Mellitus and Nephrology even consulted on 20/11/2008 prior to revival of the policy on 20/12/2008 and even his sufferings was prior to purchase of the said policy as had been clearly mentioned by the claimant (Nominee of the policy) herself in Claim Form-A that "DLA had been suffering illness from last five years before death" while applied for death claim of the said policy. Hence the O.Ps, LIC rightly repudiated the claim on the basis of medical certificate produced and claim Form-A submitted by the claimant where it is clearly mentioned that the DLA suffers illness during last 5 years.
The statement made by the Complainant for deficiency of services is vehemently opposed by the O.P LIC since absolutely due to suppression of material information regarding health (Chronic Kinney disease/Diabetes mellitus with other diseases) of the deceased life assured in his proposal, the claim is repudiated.
In present case very vital aspect of Insurance Contract i.e. Utmost Good Faith is vitiated by the Life Assured (Now deceased). LICI holds money of crores of Policy holders as "Trust". If LICI entertains any bad or false/illegal claim, then the interest of crores of the genuine policy holders shall be jeopardized. Therefore, the claim of the said policy is not payable and LIC has not settled the death claim.
It is the case of the O.P. No.1 & 2 that no illegality has been caused in repudiating the Death Claim under the policy in question as sought for by the complainant nor there was any willful omission or commission on the part of LIC of India in any way as LICI always safeguards the interest of the crores of the genuine policy holders across the country since its nationalization from 1956 binding through Life Insurance Corporation of India Act, 1956. Therefore, LIC of India being the Govt. of India’s Prime Financial Corporation Cannot makes any payment which is not genuine in nature as LICI never makes any unfair trade practice.
By putting all this, the O.P. No.1 & 2 prayed that considering the above fact and circumstances to dismiss the present complaint petition with cost.
The O.P. No.3, Sri Kalyan Das, S/o. Subhod Ch. Das, Agent of Life Insurance Corporation of India has contested the case by filing Written Version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P is that this answering O.P is an Agent of Life Insurance Corporation of India and working as such since many years with unblemished carrier, in fact as an agent works on the statements of the policy holder and he had no scope to verify the statements of the policy holder.
The O.P. No.3 further contended in his W/V that this answering O.P acted merely on the basis of deceased policy holder Biswanath Saha on good faith. In fact, even during the time of revival of policy in question the DLA did not disclose anything with regard to his ailment or treatment. In fact as it appears, subsequently when the L.I.C.I repudiated the case that the deceased policy holder withheld material information with regard to his health condition and thereby managed to procure revival of the policy in question. At as the L.I.C.I after considering all pros and cons repudiated the claim, this answering O.P cannot be liable in any way. The ultimate authority is the L.I.C.I in which this O.P has nothing to do and accordingly, there was no negligence on the part of this O.P.
Ultimately, the O.P. No.3 prayed for dismissal of the case without any costs.
In this case after filing W/V, the O.P. No.3 did not appear before this Forum for which the case proceeded in Ex-parte against the O.P. No.3.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a 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. Perused the entire documents in the record and also heard the argument as advanced by the parties at a length. Perused also the Evidence on affidavit of the parties along with the documents.
Point No.1.
Admittedly, the diseased husband of the Complainant during his life time obtained a LICI policy bearing No.453138685 on 28.02.2004 and revived on 20.12.2008 from the O.P. No.1 & 2 through the O.P. No.3. The O.P. No.1 & 2 issued certificate in favour of the Complainant. Thus, the relation of the Complainant with the O.Ps. So established from the record, we have no hesitation to hold that the Complainant is a consumer as per provision u/s 2(1)(d)(ii) of C.P. Act, 1986.
Point No.2.
The Complainant in this case has claimed Rs.95,000/- in total under different heads which is less than the pecuniary limit of this Forum. The Complainant has brought this case against the O.Ps who carry on their business under Kotwali P.S, Cooch Behar which is within the territorial jurisdiction of this Forum.
In our view, this Forum has sufficient jurisdiction i.e. pecuniary as well as territorial jurisdiction to entertain the instant case.
Thus, both the points are decided in favour of the Complainant.
Point No.3 & 4.
Both points are taken up for sake of brevity and convenience.
Evidently, the DLA (Deceased Life Assured), Biswanath Saha during his life time obtained a LICI Policy bearing No.453138685 on 28/02/2004 with a sum assured of Rs.30,000/- and that was revived on 20.12.2008. The DLA, Biswanath Saha breathed his last on 21/02/2009 when the policy was in force.
After death of the DLA, the wife also the nominee, Smt. Doly Saha preferred claim to the LICI for getting death benefit on 07/08/2009 by depositing all the essential documents and thereafter issuing a legal notice, the Complainant came to know on 29/10/2013 that her claim has been repudiated by the O.P., LICI.
It is the case of the Complainant that the O.P., LICI illegally repudiated the claim of the Complainant. The Complainant suffered a lot for non-settling the claim of the Complainant in due time.
Besides, the O.P., LICI in their evidence on affidavit also in W/Ar. frankly stated that the DLA obtained the policy being No.453138685 for a sum assured of Rs.30,000/-. Due to non-payment of premium the said policy lapsed.
Subsequently, the said policy was revived on approach of the DLA on 20/12/2008 on the basis of declaration of his personal statement. The DLA purposefully suppressed the material facts and in connection of his ailments and tactfully success to revive her policy. The Ld. Agent for the O.P. LICI also argued that this complaint petition is barred by law of limitation as the Complainant filed the present case after four yrs. of the claim preferred before O.P. LICI.
On going through a close look to the materials made available in the record filed by both the parties it appears that the cause of death as shown in the Discharge Certificate of Sunrise Nursing Home, Siliguri (Annexure “B”) was Cardiac Respiratory failure a case of Chronic Renal failure.
During the course of argument, the Ld. Agent of the O.P., LICI vehemently argued that the Complainant by suppressing material facts has filed the present case also the policy in question was revived by suppressing the then health condition of the DLA. The policy was revived on 20/12/2008 on the basis of personal statement furnished by the DLA. The Ld. Agent for the O.P. No.1 & 2 filed some documents marked as Annexure “1 to 8” in support of their contentions.
The Ld. Agent for the O.P. cited following rulings –
- 2012 (1) CPR 43 S.C. (Chhattisgarh).
- 2012 (4) CPR 247 (NC) Sec. 15, 17, 91 of Insurance Act.
- 2012 (3) CPR 32 S.C. (Chhattisgarh).
- 2012 (2) CPR 479 (NC)
On perusal the said documents it is very much transpires that the DLA was suffering from various ailments and had under treatment of doctors for a long period.
The Complainant filed some documents marked as Annexure “A” to “E”. Besides, the Ld. Agent for the Complainant files the following rulings and other decided cases.
- 2014 (2) CPR 504 (NC)
- 2014 CJ 22 (NC)
- 2012 CJ 263 (NC)
Annexure “B” reveals that the DLA expired on 21/02/2009 at 5.05 A.M due to Cardiac Respiratory Trouble in a case of Chronic Renal Failure.
Annexure “C” reveals that the Complainant preferred a claim on 31/07/2009.
Annexure “D” i.e. a letter to LICI on 23/10/2013 for settlement of above claim.
Annexure “E” reply of above letter by LICI which reveals that the claim of the Complainant repudiated on 30/03/2010 for non-disclosure of material fact during the period of revival of the policy.
Annexure “1” filed by the O.P clearly shows that the DLA, Biswanath Saha made self declaration on 18/12/2008 about his personal statement regarding health wherein he clearly stated that his present health status was ‘good’ and had no history of treatment or medical advice etc. on the basis of the said self declaration the policy bearing No.453138685 for Rs.30,000/- of the DLA was revived on 20/12/2008. Prior to that on 03/11/2006 the DLA during the proposal of the policy also has given a statement where also it was clear that he had no history of disease or any other ailments when the policy was issued by the LICI (Annexure “6”). From the proposal form it appears DLA claimed him a person of good health. He never suffered from any disease of liver, kidney etc. He was never admitted in any Hospital/Nursing Home for any treatment or surgery.
Annexure “4” reveals that the DLA, Biswanath Saha was under treatment Dr. B. Dutta, D.M (Nephro) RPG, Kolkata since 20/11/2008 but he suppressed the said fact and gave his statement regarding health which speaks that during revival of the policy he was in good health and no prior history of disease. Accordingly, the policy was revived 20.12.2008. From the BHT of the Sunrise Nursing Home it is crystal clear that the DLA was admitted in the said Nursing Home with Chronic Kidney disease.
It appears that the Complainant also suppressing the said fact and by not adducing the total treatment particulars of the DLA, has filed the present case against the LICI. It is also established that the Complainant did not came before this Forum in clean hand.
Evidently, within a short period of revival of the policy in question, the Complainant admitted in Sunrise Nursing Home, Siliguri on 18/02/2009 with a history of kidney problem. The Complainant in claim form frankly stated in the claim Form-A that duration of last illness of the DLA is 5 years i.e. also prior to obtained the said policy. Thus, from every corner it is well established from own documents of the Complainant that the DLA was suffering from kidney disease prior to obtain the policy. The Claim Form ‘B’ marked as Annexure 6(2) corroborated the contention of the O.P. LICI. Further, the claim of the Complainant was early in nature as such LICI rightly repudiated the said claim and has no deficiency in service.
The claim of the Complainant is for getting death benefit from LICI with compensation.
In this juncture, reliance has been placed upon ruling reported in 2012 (I) CPR 43 wherein it is held that suppression of material information regarding health will vitiate insurance policy.
We also invited the authority reported in 2012 (2) CPR 497 (NC) where in the Hon’ble National Commission pleased to hold that “suppression of material fact about status of health by life assured disentitles nominee/heirs of insurance claim.
In a case reported 2014 (2) CPR 504 (NC) the National Commission observed that pre-existing disease must be proved by expert opinion. In that case Insurance Company did not produce any credible documentary evidence/expert medical opinion in support of their contention. But in the present case total treatment particulars of the DLA has been produced by the O.P, LICI. Thus, this ruling is not applicable.
The ruling reported in 2014 CJ 22 (NC) the National Commission further observed that pre-existing disease must be proved by proper medical report. In the present case in hand that the LICI filed the treatment particulars of Sunrise Nursing Home, BHT of DLA from which the O.Ps proved their case. The claim of the Complainant has been repudiated not only based on Medical attendant’s certificate but also on total treatment particulars of the DLA.
The present case is also not the case that the Complainant was unaware of the disease at the time of taking the policy. From the statement made by the Complainant in proposal from during the time of revival the policy it is well established that the Complainant was in knowledge about this disease. But in the proposal form he claimed himself a person of good health and stated that he never suffered from any disease of liver, kidney etc. and never admitted in any hospital for any treatment or surgery.
Thus, the rulings/decisions cited by the Complainant is not applicable in this case.
On scrutiny the documents/treatment particulars filed by the O.P appears that the Complainant was suffering from kidney disease. It was also find that he has under treatment of Dr. B. Dutta before revival of the policy. It is also evident from the record that the deceased was already suffering from kidney disease since a long period admitted in Sunrise Nursing Home within a short period of revival of the policy and died due to chronic renal failure.
In Satwant Kaur Sandhu Vs. New India Insurance Co. Ltd. reported in (2009) 8 SCC 31b : (2009) 5 Supreme 523 the Hon’ble Supreme Court emphasized that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Though the term “material fact” has not been defined in the Insurance Act, it is understood to mean any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact which goes to the root of the contract of Insurance and has a bearing on the risk involved would be “material”.
In the present case, the deceased died within two months from revival of the policy and in the claimants statement Form the Complainant as a nominee declared that the duration of the illness of DLA was last 5 years i.e. prior to obtain the policy.
Thus, since the DLA was suffering from chronic kidney disease, it is evident that he gave false answers to the questions in the proposal form and thereby committed a fraud with the insurer by making a willful misrepresentation as regards the state of his health and suppressed the fact of treatment taken by him in the past 5 years. Therefore, Section 45 of the Insurance Company would certainly not be of any avail to the Complainant. Reliance also has been placed upon ruling reported in 2016(1) CPR 451 (SC) the Hon’ble Supreme Court pleased to hold that “Proposal can be repudiated if a fraudulent act is discovered.”
Thus, viewing the case from all possible angles and relied on so many decisions/rulings, we constrained to hold that the O.P, LICI acted in accordance with the rule of Insurance Act and cannot be brought under the umbrella of deficiency in service.
Hence,
it is ORDERED that
The present Case No. CC/153/2013 be and the same is dismissed. No order as to costs.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
