DATE OF FILING: 17.10.2012.
DATE OF DISPOSAL: 21.6.2016.
Dr. N.Tuna Sahu, Member:
The complainant has filed this complainant under Section 12 of Consumer Protection Act, 1986 alleging deficiency in service insurance service against the Opposite Parties (In short, the O.Ps) and for redressal of her grievance before this Forum.
2. Briefly stated the case of the complainant is that the complainant’s husband was insured his life with the above O.Ps vide Policy No.13594398 for an assured sum of Rs.5,00,000/- (Rupees five lakhs) only on payment of annual premium amount of Rs.1,00,000/- to the O.Ps on 15.3.2010 by observing all formalities as required for undertaking an insurance policy i.e. medical test, fitness report etc and his proposal was duly accepted by the O.Ps and issued a policy in favour of the complainant’s husband namely Subash Chandra Nayak. At the first instance, the complainant’s husband paid Rs.50,500/- towards ½ yearly premium amount on 15.3.2010. On dated 20.4.2010 suddenly, the husband of the complainant died due to ill health. After his sad demise, the complainant nominee lodged a claim before the O.Ps and submitted all the necessary documents being the nominee in the said policy of his husband. As alleged after a long gap of about one year the O.Ps arbitrarily repudiated her legitimate claim without assigning any valid reason vide their official letter dated 14.3.2011, which is contrary to law and equity because at the time of agreement while accepting the policy of the complainant’s husband, the O.Ps have conducted physical/medical test by their own approved doctors and received the policy premium amount. But when their liability is due to discharge their duties by settling the legitimate claim of the complainant, they technically avoided to settle the claim of the complainant, which is unjust and unfair and the O.Ps should be punished for such type of unfair trade practices. It is also alleged that at the time of death, the policy was in force, undisputed and the O.Ps have undertaken to indemnify/compensate the complainant’s husband for any damages/losses as per the contract made between the insured and insurer under the said policy. By not settling the genuine claim, the complainant put to harassment and heavy mental pressure and he has suffered physically by moving the office premises of the O.Ps several times and mentally due to non-settlement of his legitimate claim and suffered financially due to spending money towards correspondence and conveyance charges for moving the O.Ps several times, for which the complainant entitles himself to get compensation from the O.Ps. Alleging deficiency in insurance service on the part of the O.Ps the complainant prayed to direct the O.Ps for settlement of assured policy amount of Rs.5,00,000/- and to pay Rs.50,000/- towards harassment and mental agony and Rs.5000/- for the cost of litigation in the best interest of justice.
3. Upon notice, the O.Ps appeared through their learned counsel and 0filed version. It is stated that the complainant has filed a complaint before the Permanent Lok Adalat, Ganjam, Berhampur bearing PLA No.39/2012. The said complaint was decided in favour of the complainant and the O.Ps were directed to refund the first annual premium of Rs.1,00,000/- to the complainant. Being aggrieved by the said order of the Permanent Lok Adalat the O.Ps preferred a writ petition before the Odisha, High Court. The complainant thereafter filed the present complaint before this Hon’ble Forum under the same cause of action and same subject matter which is subjudice before the Hon’ble High Court Odisha. Therefore the present complainant is hit by the principle of resjudicata and is liable to be dismissed out rightly. In the present case, the claim of the complainant was repudiated on the basis of concealment of material fact by the life assured. The Life Assured had concealed his past medical history at the time of the issuance of the policy. The concealment of the material fact by the Life Assured goes to the very root of the matter, consequently, vitiating the subject policy. Thus the complaint is liable to be dismissed. The present complaint is not maintainable. The subject policy has been obtained fraudulently, dishonestly and by misrepresentation. Hence the present complaint is liable to be dismissed on this ground alone. The life assured/proposer is under solemn obligation to make full, complete, true and correct discloser of the material facts which may be relevant for the insurer to take into account while deciding whether the proposal should be accepted. If the life assured/proposer failed to disclose the true and correct material facts to the insurer then the policy obtained by the life assured/proposer stand vitiated and the life assured or any person claiming under it is not entitled for any benefits under the said policy. In the present case, the life assured at the time of issuance of the policy concealed his past medical of history of chronic kidney disease with hypertension. The said fact was revealed by the O.Ps at the time of investigation of the death claim submitted by the complainant. The said undisclosed fact vitiates the policy and rendered it invalid, voids ab-intio and is unenforceable in law. In the present case, the subject policy was issued 18.3.2010 and the Life Assured was reported to have been died on 20.04.2010, i.e. within one month from the date of issuance of the policy. The O.Ps has thus rightly, legally and in accordance with the terms and conditions of the policy repudiated the claim on the ground of concealment of material facts. The O.Ps have undertaken to compensate/indemnify the complainant only when the claim is genuine. In the present case the claim was not genuine as such the claim submitted by the complainant was repudiated by the Opposite party. The life assured has also declared in the proposal form that “in case of any misstatement or suppression of material information the company has the right to repudiate the claim under the policy”. The life assured has misstated his past medical history in the proposal form therefore the claim was repudiated by the O.Ps. Hence the O.Ps prayed to dismiss the case with cost.
4. On the date of hearing the advocate for complainant was absent and advocate for O.P. though was not present but filed written argument through somebody without signature. In this case the complainant has remained absent since 23.4.2013 and even not taken any steps on some dates. The advocate for O.P. also remained absent without any steps. Since this is a case of year 2012 and the parties are remaining absent continuously the Forum decided to dispose of the case on merit as per the materials placed on the case record.
5. On the date of hearing we perused the case record and have gone through the materials like complain petition, written version and written argument filed by the O.Ps. We have also perused the vital documents like insurance form i.e. policy documents, policy certificate, death certificate, claim letter, advocate notice etc. On perusal of the materials on record, it reveals that the present complainant is the nominee of the policy holder who procured the policy from the O.P. on 15.3.2010 for a sum assured Rs.5,00,000/- on payment of premium @ Rs.50,500/- for half yearly period vide policy No.13594398. However, the policy holder suddenly died on 20.4.2010 due to his illness for which the nominee complainant has claimed the assured amount of Rs.5,00,000/- along with Rs.50,000/- towards harassment, mental agony and Rs.5,000/- towards cost of litigation. On further perusal of the case record, we found that as per the version of O.Ps. this case was filed before the Permanent Lok Adalat, Ganjam, Berhampur being PLA No. 39/2012 and the said case was decided in favour of the complainant and the Opposite Parties were directed to refund the first annual premium of Rs.1,00,000/- (Rupees one lakh) only to the complainant. Being aggrieved by the said order of the Permanent Lok Adalat the Opposite Parties preferred a writ petition before the Odisha High Court and the said writ petition is pending before the Hon’ble High Court as averred by the O.Ps. However, no document has been filed before this Forum by the O.Ps that the case is pending before Hon’ble High Court for adjudication to substantiate their version. As per the argument of the learned counsel for the O.Ps through his written argument the claim of the complainant repudiated on the basis of concealment of material fact by the Life Assured. The Life Assured had concealed his past medical history at the time of the issuance of the policy. It is contended that there is no deficiency of service on part of the O.Ps as laid down in the case of Ravneet Singh Bagga versus KLM Royal Dutch Airlines (2000) 1 SCC 66. It is also argued that the contract of evidence is based on the principle of uberrimafides i.e. on the principle of utmost good faith. It is the duty of life assured to make full, complete, true and correct discloser of the material facts which may be relevant for the insurer to take into account while deciding whether the proposal should be accepted. In the present case the life assured at the time of issuance of the policy concealed his past medical history of chronic kidney disease with hypertension and fraudulently took the policy. So the life assured is not entitled for any relief as per the out-patient prescription of Kalinga Hospital Ltd, Bhubaneswar dated 10.4.2008. The life assured was diagnosed with chronic kidney disease (stage V) with hypertension and was advised for replacement therapy. The Pathology report from Kalinga Hospital dated 11.4.2008 suggested medical renal disease (Chronic kidney disease). Since the life assured was suffering from kidney disease prior to taking policy he is not entitled for any insurance claim. In support of his argument he has also cited one authority of National Commission in the case of Satwant Kaur Sandhu Vs. New India Assurance Company Limited IV (2009) CPJ 8 (SC) 2012 placed in the case record.
6. On perusal of case record it is found that on 15.3.2010 the complainant took the insurance policy on payment of half yearly premium of Rs.50,500/- for sum assured of Rs.5,00,000/- but on 20.4.2010 the policy holder suddenly died due to ill health. On examination of the complaint of the complainant, repudiation letter and policy documents it is found that the complainant took policy on 15.3.2010 and died on 20.4.2010 just after one month 5 days. This proves that the complainant died after one month and 5 days after taking of the policy. From the above discussion it is clear that the complainant has suppressed material fact about his ill health during taking of the policy. Above all, this case has already been adjudicated by the Permanent Lok Adalat and the matter is pending before the Hon’ble High Court as per the writ petition filed by the O.P. against the PLA case. However, there is no documentary evidence placed in the case record in this regard and since the O.Ps have not produced any documentary evidence about the appeal pending before the Hon’ble High Court of Odisha and no copy of PLA order was filed we decided to order it on merit.
7. On perusal of the case record and after going through the documents of complainant as well as O.Ps, we found that undoubtedly, it is a case of suppression of material facts regarding the ill health of the deceased insured as discussed herein above and in view of the suppression of material fact by the complainant, the complainant is not entitled for any insurance benefit and the claim of the complainant nominee has rightly been rejected by the O.Ps. Our finding is fortified by decision of Hon’ble Supreme Court in the case of Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd reported in IV (2009) CPJ 8(SC), the Hon’ble Supreme Court held that insured is under obligation to make true and full disclosure of information within his knowledge. Where insured is on regular treatment and fully aware about his state of health and statements made in the proposal form regarding as to state of health are palpably untrue to his knowledge, repudiation of claim is justified. We also rely on another citation of Hon’ble National Commission in the case of Gian Singh & Ors. Vs. Life Insurance Corporation of India, Rohtak & Ors decided on 5.2.2013 vide Revision Petition No.2148 of 2012 reported in 2013(I) CPR 278 (NC).
8. In view of the above discussion, decision of the authorities discussed above and in the light of fact and circumstances of the case we dismiss the case of the complainant. In the result, the case of the complainant is dismissed due to devoid of any merit but there is no order as to cost.
9. The order is pronounced on this day of 21st June 2016 under the signature and seal of this Forum. The office is directed to supply copies of the order to parties free of cost as per rules.
