Orissa

Cuttak

CC/71/2018

Mrs Guri Sabar - Complainant(s)

Versus

The Branch Manager,Future General India Insurance Company Ltd - Opp.Party(s)

R K Pattanaik

16 Jul 2019

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.71/2018

 

Mrs. Guri Sabar,

W/o: Late Panu Sabar,

At:Talaborei(Kandulasahi),

PO:Damia Barabara,

Banapur-752035.                                                                      … Complainant.

 

                Vrs.

 

                                                                                               

 

1.        The Branch Manager,

Future General India Insurance Company Ltd.,

3^rd Floor,Sumitra Plaza,Near Badambadi Bus Stand,

Cuttack.

 

2.        The Managing Director  & Chief Executive Officer,

Future General India Insurance Company Ltd.,

India bulls Finance Centre,

Tower-3,6^th Floor,Senapati Bapat Marg,

Elphinstone(W),Mumbai,India.                                               … Opp. Parties.

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Smt. Sarmistha Nath, Member(W).

 

Date of filing:      11.07.2018

Date of Order:    16.07.2019

 

For the complainant       :  Sri R.K.Pattnaik,Adv. & Associates.

For the O.P.N.1 & 2         : Ms. Nitu Roy[M.V.Kini & Associates](Advocates)

 

Sri Dhruba Charan Barik,President.

The complainant has filed this case alleging deficiency in service and unfair trade practice against the O.Ps and seeking appropriate reliefs against them in terms of her prayer in the complaint petition.

1. The facts of the complainant’s case briefly stated are that the policy holder Late Panu Sabar had obtained a Future Generali Assure Plus Insurance Policy vide No.01345292 from O.P.1 on the basis of his proposal given on 22.4.2017.  The said policy insuring the life of the policy holder was for 15 years and the premium payable under such policy was for 12 years.  The sum assured was Rs.4,40,000/- and premium payable under the policy was Rs.39,393/- per annum for 12 years.  The complainant being the wife of the policy holder was the nominee under the said policy.  Annexure-1 is the photo copy of the policy bond filed in this case.

                                   It is stated that while the policy was in force the life assured died of heart attack at about 6 P.M. on 15.7.2017.  Annexure-2 is the photo copy of the death certificate of the deceased.  Subsequently, the complainant lodged death claim before the O.Ps for the assured sum on 5.12.17.  Thereafter the O.P. remained silent for more than one month and lastly repudiated the claim on the ground that the deceased has suppressed the material facts with regard to his ailment while giving declaration in the proposal form.  More specifically it is stated that the deceased although was suffering from Tuberculosis, Asthma, Pneumonia prior issuance of this policy yet has not disclosed this fact in the proposal form.  Copy of the letter of repudiation dt.19.1.18 has been filed in this case and marked as Annexure-3.  The specific stand of the complainant was that the deceased has never suffered from the diseases as alleged by the O.Ps and that there was no material suppression of any disease and that death of the deceased was caused by heart attack.  Therefore repudiation of the claim of the complainant is totally baseless and illegal.  As such she sent a representation to the O.P to reconsider her claim on the ground stated above.

                                   It is further revealed from the averment made in the complaint that the deceased was admitted to S.C.B Medical College and Hospital, Cuttack where he breathed his last in the year 2017 and all hopes and aspirations of the complainant were shattered because of sad demise of her husband.  She was mentally upset and as such was unable to lodge her claim on 5.12.17.  Despite repeated requests made by the complainant to settle the death claim, there was no response from the O.Ps.  It has caused much harassment and mental agony to her and such inaction on the part of the O.Ps is tantamount to deficiency in service and unfair trade practice.

                                   In the above circumstances, it is prayed that the O.P may be directed to pay Rs.4,40,000/- towards the sum assured of the deceased together with interest @ 12% per annum from the date of repudiation of the claim till its realization.  It is further prayed that the O.Ps may be directed to pay compensation of Rs.50,000/- as well as cost of litigation of Rs.20,000/- all together  Rs.5,10,000/- to her in the interest of justice.

2. Both the O.Ps have filed joint written version of their case.  At the outset it is stated that there is no cause of action to file the case and there is also no material to hold that the O.Ps have rendered deficient service to the complainant or followed unfair trade practice in any manner while dealing with this case.  The main contentions of the O.Ps 1 & 2 are that the deceased was diagnosed with the disease pulmonary tuberculosis in the year 2016 and he was well aware of this fact at the time of signing the proposal form for obtaining the policy.   A copy of the medical report (Treatment Card) of Revised National Tuberculosis Control Programme issued by CHC,Banpur,Khurda on 26.4.2016 confirming the medical condition of the deceased has been filed  in this case.  It has been marked as Annexure-D.  To that extent it is said that the deceased is guilty of material suppression of his pre-existing diseases and as such has violated the terms and conditions of the policy.  On the basis of the said document t, the claim of the complainant was repudiated on 19.1.2018.  Annexure-E is the photo copy of the said repudiation letter.  

Besides the above, the O,.Ps have also filed photo copy of the proposal form, policy bond, death claim intimation which have been respectively marked as Annexure-A,B & C.

The other material facts which have not been specifically admitted herein, have been traversed in the written version,as such it is prayed that the consumer complaint is devoid of merit and needs to be dismissed with cost.

3. We have heard the learned counsels from both the sides and carefully gone through the case records.
4. The moot point that surfaces consideration is whether the repudiation of the death claim of the complainant by the O.P,Insurance Company is legal and justified.  It is important to leave a mention here that the learned advocate for the complainant has reiterated that the death of the deceased was caused by cardiac arrest while undergoing treatment at S.C.B.Medical College and Hospital,Cuttack.  It is clearly denied by the learned advocate for the O.P.  Annexure-2 is the photo copy of the death certificate dt.15.7.17 of the deceased.  Nowhere from the said document it is found that the deceased died of heart attack.  Contrary to it, the learned advocate for the O.P has taken a specific stand that the deceased was suffering from pre-existing disease i.e. tuberculosis and this fact has been materially suppressed while signing the proposal form to obtain the policy.  To substantiate his plea, learned advocate for the O.P. has filed the photo copy of the treatment card of the Revised National Tuberculosis Control Programme issued by the CHC,Banpur,Khurda.  From the said document it is found that the deceased was suffering from pulmonary disease and the X-Ray was found positive.  Strangely enough, the deceased has categorically taken a negative stand that he was suffering from any pulmonary disease, tuberculosis or pneumonia.  This fact is clearly revealed from the proposal  form, photo copy of which has been filed in this case and marked as Annexure-A.  It is fairly submitted by the learned counsel for the O.P that the treatment card of the deceased was issued by the concerned CHC after due medical examination held on 26.4.16 during Revised    National Tuberculosis Control Programme and the deceased was well aware of his health condition and his suffering from tuberculosis.  When he has not expressly stated about his ailment of tuberculosis in the proposal form it cannot but be held that he has suppressed the material fact as to his pre-existing disease.   In absence of anything to the contrary it can be held that the deceased has violated the terms and conditions of the policy document by suppressing the material fact about his pre-existing ailment.
5. The learned advocate for the complainant has clearly submitted that even if it is accepted for the sake of argument that the deceased was suffering from tuberculosis prior to his declaration in the proposal form still then it cannot be held that cause of death of the deceased was tuberculosis especially when the complainant has categorically stated that the deceased died of heart attack.  It is also stated that disease tuberculosis has no material bearing on cardiac arrest.  As such it is submitted that the repudiation of the death claim on the ground of pre-existing disease of the deceased is illegal.
6.  It is settled principle of law that material fact means and includes fundamental, vital, basic, cardinal or primary fact upon which the plaintiff’s cause of action or the defendant’s cause of action or the defendant’s defence depends.  In the instant case pulmonary tuberculosis is the most fundamental, vital or basic fact for the purpose stated above so far as parties are concerned.   That apart it is further submitted that had the life assured correctly mentioned his medical condition and history of his case in the proposal form, the underwriting decision of the Insurance Company would have been materially altered because pulmonary tuberculosis has a high morbidity rate and if not treated properly, would lead to his death and the life assured has not willfully disclosed the same.  When it is deliberately suppressed, the concept of utmost good faith upon which the contract of insurance is based is violated.  Because of such breach of faith committed by the complainant by suppressing the material fact, the O.P,Insurance Company is well within its right to deny the claim payable to the insured.

In view of the above, it is held that the complainant has failed to prove deficiency in service and unfair trade practice on the part of the O.P in any manner.Hence ordered;

 

                                                                                ORDER

The case be and the same is dismissed on contest against the O.Ps No. 1 & 2.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 16^th day of July,2019  under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                        President.

                                                             

                                                                                               (Smt. Sarmistha Nath)

          Member(W)