This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant, Bhanu Bhusan Majumder.

The complainant’s case in hand in brief is that the petitioner is  the  husband of  Late Kajal Majumder who was the policy holder of LIC namely Jeevan Tarang Policy under table No.178 being policy No.496628098 and mode of payment is yearly installment scheme.  The said policy held on 18.3.2012 and after that the petitioner’s wife paid installments dated 21.3.2012, 14.3.2013 and 24.3.2014 as per terms and conditions of the said policy. At the time of the said policy the wife of the petitioner was fit and sound mind and did not have any type of disease.That on 31.8.2014 the wife of the complainant had to be admitted at Burdwan Critical Care Unit Pvt. Ltd and discharged on 3.9.2014 ad later on 6.10.2014 admitted in the Mumbai for certain health problem due to Cardio Pulmonary Arrest.  After being treated for two months she died on 18.10.2014.  After a short period of time the complainant made a claim to the LICI office Pandua Branch on 11.2.2015. 

The opposite parties inspected the documents about the death of the petitioner’s wife and after that they falsely stated that the death was caused due to hyper tension and stroke.  There was no such documents, doctor’s prescriptions or no such previous records providing that he death was caused due to hyper tension/stroke.

That at the time of taking policy the opposite party’s doctor fully examined the policy holder and found ok and thereafter policy holder made payment of installment as per agreed terms and condition.  After rejecting the claim of the petitioner the petitioner on 21.12.2015 made a review application for death claim of said policy and petitioner also filed a complaint before the public grievance cell and ultimately opposite parties refused to pay any death claim due to false and concocted story of causing of Hypertension and stroke.

That the opposite party wrongfully and intentionally refused to make payment of death claim of the complainant. The opposite parties does not want to pay or give any kind of benefits as per terms and conditions of the said policy, as a result of which they tried to make a false statement that the petitioner’s wife had died due to hypertension and stroke and for that cancer thereon blocking the claim of the petition.

Finding no other alternative the complainant has compelled to file this case before this Forum for relief with a prayer to direct the opposite parties to pay policy amount of Rs.6,00,000/- along with interest of Rs.2,00,000/- and to pay cost of the suit to the complainant.

The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them.  These opposite parties submit that life assured Smt. Kajal Majumder took the LIC’s Jeevan Tarang Policy (with profit) bearing Policy No.496628098 for a sum assured amount of Rs.6,00,000/- under plan 178 and accumulation period of 10 years on the basis of the proposal No.15766 dated 18.3.2012 in prescribed form duly filled up and submitted by her on 18.3.2012.

At the time of submitting the said proposal form she was to disclose some facts regarding personal history of her health as per some specific queries set out in Query No.11, which she answered, among others, in the following manner:-

11(a). During the last five years did you consult a Medical practitioner for any ailment requiring treatment for more than a week ? Answered- “No”.

11(b). Have you ever been admitted to any hospital or Nursing Home for general check up, observation, treatment or operation ? Answered-“No”.

11(d). Are you suffering from or have you ever suffered from ailments pertaining to Liver, Stomach, Heart, Lungs, Kidney, Brain or Nervous system ?  Answered-“No”

11(e). Are you suffering from or have you ever suffered from Diabetes, Tuberculosis, High Blood Pressure, Low Blood Pressure, Cancer, Epillepsy, Hernia, Hydrocele, Leprosy or any other disease ?  Answered-“No”.

11(i). What has been your usual state of health?  Answered-“Good”.

It is also averred that the life assured Smt. Kajal Majumder died on 18.10.2014 due to Cardio Pulmonary Arrest.  On receipt of the prescribed claim papers, the claim was processed for taking decision.  In course of enquiry and scrutiny of those prescribed claim forms and the connected documents thereof it revealed that the life assured Smt. Kajal Majumder has history of HTN (Hypertension) and Stroke (Brain disease) since the year 2007, that is prior to submission of the proposal form on 18.3.2012 for which she had to consult Dr. Ashok L. Kripalani, professor & Head of Dept. of Nephrology, Bombay Hospital Institute of Medical Sciences on 29.9.2014 wherein  the said patient’s relative Mr. B.Majumder  (i.e. the husband of the L/A as well as the present complainant) has declared himself that the life assured Smt. Kajal Majumder had suffering with stroke and hypertension since the year 2007.

This fact was definitely known to the L/A herself at the time of submission of the Proposal Form. But instead of disclosing the said fact in her proposal form No.300 (Rev.91), she deliberately withheld this material fact by giving false and untrue answer therein against Query No.11, as mentioned above.

That it is, therefore, evident the life assured Smt. Kajal Majumder had made mis-statement and withheld material information from the LIC regarding health at the time of effecting the policy assurance in question. That the contract of Life Insurance Policy is based upon a contract of Utmost Good Faith which requires full disclosure of correct material/information which may be concerned with the health having history of past illness, usual state of health etc. of the life to be assured at the time of effecting the contract of Life Insurance Policy.  Deceased Life Assured did not disclose these factual statements at the time of proposal for the above noted policy, keeping the corporation in dark.

That in the above noted situation, these opposite parties had no other alternative but to repudiate the claim, in terms of the policy contract and the Declaration contained in the Proposal Form for such Assurance the Repudiation decision by the Howrah Divisional Authority of the opposite parties corporation was duly conveyed it to the claimant under letter No.HDO/Repdt.Clm/PBO/15-16/30, 8.9.2015.  By the said letter the claimant was, however, duly given the liberty to send his representation to the Zonal Claim Review Committee of the Corporation or to the office of the Ombudsman, if he considered that his claim was not considered properly by the Repudiating authority i.e. the Howrah Divisional Office of the Corporation.

That the claimant moved the Zonal Claims Review Committee accordingly.  The Zonal Claim Review Committee also decided to uphold the repudiation action and was informed to the claimant under letter No.HDO/Repd.Clm/PBO/15-16/30/ZOCDRC dated 11.2.2016.  Thereafter the complainant moved before the Hon’ble Insurance Ombudsman, State of West Bengal etc., set up under the Redressal of Public Grievances Rule, 1998 vide complaint Ref. No.KOL-L-0029-1617-0069.  The Hon’ble Insurance Ombudsman also upheld the repudiation by order dated 11.11.2016.  Hence, the case.

Both sides filed evidence on affidavit and written notes of argument which are taken into consideration for passing final order.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainant Bhanu Bhusan Majumdar is a ‘Consumer’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1). Whether the Complainant Mr.Bhanu Bhusan Majumdar is a ‘Consumer’ of the opposite party?

From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainant herein being the  nominee as well as beneficiary of deceased customer of the  opposite party insurance company, opposite party No.1 &2 are the  offices of the said insurance company, so being a consumer he is entitled to get service from the opposite party insurance company being the service provider.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

  Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the opposite party a death claim amounting to  Rs.600,000/- against the policy being no.496628098, a sum of Rs.200,000/- for mental pain, agony and harassment, litigation cost and other reliefs as this Forum deems fit and proper ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

(3). Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

      The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people of throughout the whole nation since a long back with self generated assets i.e. goodwill of the business. So, the credibility of the OP Insurance Company is unquestionable and that is why the  wife of the complainant  insured her life before the said company without any doubt.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

     It is well settled proposition of law that a contract of insurance is based on the principles of utmost good faith-uberrimae fidei applicable to both the parties. The rule of nondisclosure of material facts vitiating a policy still holds the field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts, the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which is within his/her personal knowledge or which she ought to have known had she made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non disclosure of material facts.

   The expression “material fact” is not defined in the Insurance Act,1938 and therefore, as observed by the Supreme Court in Satwant Kaur Sandhu -vs- New India Assurance Company Ltd. 2013 (3) CPR 644 (sc),it has to be understood in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether she 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” and if the proposer has knowledge of such fact, she is obliged to disclose it, particularly while answering questions in the proposal form. Any inaccurate answer will entitle the insurer to repudiate their liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

           That the observation of the Apex court in Satwant Kaur’s case as :-      “thus it needs little emphasis that when an information on specific aspect is asked for in the proposal form, an assured is under solemn obligation to make a true and full disclosure of the information on the subject which is within his /her knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what she ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses.”

    The wife of the complainant Kajal Majumdar insured her life through a policy issued by OP No.2 and paid first premium amounting to Rs.92690/- on 18.3.2012 the policy holder. That on 31.8.2014 the wife of the complainant had to be admitted at Burdwan Critical Care Unit Pvt. Ltd and discharged on 3.9.2014 and later on 6.10.2014 admitted in the Mumbai for certain health problem due to Cardio Pulmonary Arrest. After being treated for two months she died on 18.10.2014.  After a short period of time the complainant made a claim to the LICI office Pandua Branch on 11.2.2015. 

The opposite parties inspected the documents about the death of the petitioner’s wife and after that they stated that the death was caused due to hyper tension and stroke. There was no such documents, doctor’s prescriptions or no such previous records providing that he death was caused due to hyper tension/stroke.

That at the time of taking policy the opposite party’s doctor fully examined the policy holder and found ok and thereafter policy holder made payment of installment as per agreed terms and condition.  After rejecting the claim of the petitioner the petitioner on 21.12.2015 made a review application for death claim of said policy and petitioner also filed a complaint before the public grievance cell and ultimately opposite parties refused to pay any death claim due to false and concocted story of causing of Hypertension and stroke.

That the opposite party wrongfully and intentionally refused to make payment of death claim of the complainant. The opposite parties does not want to pay or any kind of benefits as per terms and conditions of the said policy, as a result of which they tried to make a false statement that the petitioner’s wife had died due to hypertension and stroke and for that cancer.

   The opposite party denied the allegations as leveled against him and she averred that the life assured Kajal Majumdar since deceased obtained the policy from the opposite part No.2 and the date of commencement was 21.03.2012 and the date of first survival benefit payment was 21.03.2023 and Bhanu Bhusan Mazumdar was the recorded nominee. That the complainant duly filed the death claim form and they have investigated into the death claim in compliance of their compulsory procedure and it is revealed that life assured Smt. Kajal Majumder took the LIC’s Jeevan Tarang Policy (with profit) bearing Policy No.496628098 for a sum assured amount of Rs.6,00,000/- under plan 178 and accumulation period of 10 years on the basis of the proposal No.15766 dated 18.3.2012 in prescribed form duly filled up and submitted by her on 18.3.2012.

At the time of submitting the said proposal form she was to disclose some facts regarding personal history of her health as per some specific queries set out in Query No.11

It is also averred that the life assured Smt. Kajal Majumder died on 18.10.2014 due to Cardio Pulmonary Arrest.  On receipt of the prescribed claim papers, the claim was processed for taking decision.  In course of enquiry and scrutiny of those prescribed claim forms and the connected documents thereof it revealed that the life assured Smt. Kajal Majumder has history of HTN (Hypertension) and Stroke (Brain disease) since the year 2007, that is prior to submission of the proposal form on 18.3.2012 for which she had to consult Dr. Ashok L. Kripalani, professor & Head of Dept. of Nephrology, Bombay Hospital Institute of Medical Sciences on 29.9.2014 wherein  the said patient’s relative Mr. B. Majumder  (i.e. the husband of the L/A as well as the present complainant) has declared himself that the life assured Smt. Kajal Majumder had suffering with stroke and hypertension since the year 2007.This fact was definitely known to the L/A herself at the time of submission of the Proposal Form. But instead of disclosing the said fact in her proposal form No.300 (Rev.91), she deliberately withheld this material fact by giving false and untrue answer therein against Query No.11, as mentioned above.

That it is, therefore, evident the life assured Smt. Kajal Majumder had made mis-statement and withheld material information from the LIC regarding health at the time of effecting the policy assurance in question. That the contract of Life Insurance Policy is based upon a contract of Utmost Good Faith which requires full disclosure of correct material/information which may be concerned with the health having history of past illness, usual state of health etc. of the life to be assured at the time of effecting the contract of Life Insurance Policy.  Deceased Life Assured did not disclose these factual statements at the time of proposal for the above noted policy, keeping the corporation in dark.

That in the above noted situation, these opposite parties had no other alternative but to repudiate the claim, in terms of the policy contract and the Declaration contained in the Proposal Form for such Assurance the Repudiation decision by the Howrah Divisional Authority of the opposite parties corporation was duly conveyed it to the claimant under letter No.HDO/Repdt.Clm/PBO/15-16/30, 8.9.2015.

  On the face of the case record it appears that the claim of the complainant was repudiated by the OP No.1 on the ground that he was suffering from preexisting disease and the life assured suppressed her suffering in the policy Form so it is breach of terms and condition on the part of the complainant.

The prescription of Dr. Ashok L. Kripalani, Prof. Head of Nephrology, Bombay Hospital Institute of Medical Sciences it is filled up on behalf of the life assured that the life assured suffered stroke in the year 2007, suffering from hyper tension ,2007 and also suffering from chronic Kidney disease on August,2014 & cancer from one month. Banking upon the said prescription dated Nil the opposite party repudiated the claim of the complainant vide letter dated 08.9.2015 stating that the policy on account of the deceased having withheld material information regarding her health at the time of effecting the assurance with us. All the information’s given in question no.11 were false as they hold sufficient evidence and have reasons to believe that she had history of Hypertension and stroke since 2007 is before proposing the above policy .So they repudiate the claim of the complainant and they are not liable for any payment. By collecting the Xerox copies of prescriptions regarding the treatment of the deceased life assured the OP investigated the claim of the complainant and repudiated claim on the pretext that she suppressed her suffering in the proposal Form. And banking upon the prescriptions the OP repudiated the claim of the complainant on flimsy ground that the deceased life assured prior to taking the insurance policy was suffering from disease and she suppressed those disease while taking the policy from the OP. It appears from the information of death that life assured died of Cancer but the immense cause of death is Cardio Pulmonary arrest. Now it is a matter of discussion that the suffering from hypertension in the year2007 leads to heart Cancer in the year 2014. After perusing the documents and going through the averments of the both sides that deceased was not suffering from any chronic disease and there was no contributory cause of death, the cause of death has been occurred suddenly. Moreover, nobody knows when she/he will suffer from any kind of sudden pain or disease requiring treatment/operation. In the instant case the opposite party could not file any previous prescription of any doctor prior to taking insurance policy that the deceased life assured borne any symptoms or sickness relating to her disease.  We do not find suppression of any material fact by the insured in the proposal form and opposite party has committed deficiency in repudiating claim on flimsy grounds.

 Had she been suffering from hypertension prior to acceptance of policy then what was her problem to receive treatment from date knowledge of suffering or stating in the policy. No one would like to remain without treatment when she has sufficient funds to take treatment. 

 During the period of argument the advocate on behalf of the OP assailed that the policy holder undergo treatment  of hypertension before the acceptance of policy of opposite party it does not mean that the  hypertension leads to cancer. Merely because one is having heart problem may be without his/her knowledge, it cannot be said that ultimately he/she will die due to Myocardial Infarction. There is no material in the record to show that in any proposal form, it was concealed or mentioned by the LA that she was suffering from hyper tension. There is no material to show that there was any earlier treatment in respect of any hyper tension 7 Kidney problem. In absence of any treatment paper, no court/Forum can hold that there was some earlier pre-existing disease which was concealed by the complainant while making proposal for the insurance cover. Thus the defense which has taken by the opposite party company was having no legs to stand so it is deserved to be discarded by this Forum. 

 It was pleaded on behalf of the complainant that if an insured is not aware of an ailment she may be suffering, nondisclosure thereof does not tantamount to suppression of material fact.

 No documents in respect of treatment of the complainant before the acceptance of Proposal Form are in the case record which corroborates that the complainant has been suffering from hyper tension which leads to her death. The OP failed to produce such document to deny the claim of the complaint that during the acceptance of proposal Form LA supplied the correct information regarding her health.

 So the life assured was unaware of her disease whether she was suffering from hyper tension and her illness at the material point of time i.e. taking the insurance policy does not arise. She was not aware whether she will suffer from  Cancer in the future and she/ her nominee have to make claim before the Insurance Company for which the Insurance Company by repudiating his/complainants claim destructed the myth of utmost on good faith.

In Sulbha Prakash Motegaonkar & oths v. LIC of India, Civil Appeal No. 8245 of 2015, decided by the Hon’ble Supreme court on 5.10.2015, the husband of the complainant had at the time of taking the policy from LIC of India, concealed the fact that he was suffering from Lumbar Spondylitis with PID with Sciatica for which he was taking medical treatment and had also availed medical leave. He suffered myocardial infarction and succumbed to the said ailment. The claim lodged by the complainant, however was repudiated on the ground that the deceased had not disclosed the ailment of Lumbar Spondylitis with PID with Sciatica at the time of submitting the proposal. Allowing the complaint, the Hon’ble Supreme Court inter alia held as follows: it is not the case of the Insurance Company that the ailment that the deceased was suffering from was a life threatening disease which could or did cause the death of the insured. In fact, the clear case is that the deceased died due to ischaemic heart, disease and also because of myocardial infarction. The concealment of Lumbar Spondylitis with PID with Sciatica persuaded the respondent not to grant the insurance claim. We are of the opinion that the National Commission was in error in denying to the appellants the insurance claim and accepting the repudiation of the claim by the respondent. The death of the insured due to ischaemic heart disease and myocardial infarction had nothing to do with his lumbar spondylitis with PID with Sciatica. In our considered opinion, since the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured, the repudiation of the claim was incorrect and not justified.    

 Upon consideration of the evidence adduced by the parties, this Forum observed that the Insurance Company had failed to bring on record any proof in support of their plea that the deceased was suffering from any pre-existing disease at the time of obtaining the policy, there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease at the time of obtaining the policy, there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease and that the medical evidence relied upon by the Insurance Company was neither supported by any corroborative evidence nor did it prove that the said treatment had any nexus with the cause of  Cancer. Every person may suffer from normal diseases like acidity, fever, common cold and indigestion which does not lead to heart problem or cancer. So by producing the treatment sheet or prescriptions of doctors in which it is stated the history of suffering in the year 2007 have no relevancy of death on 18.10.2014 only to evade the responsibility of paying the death claim. This should not be the intention of the organization who has been established for the purposes of benefit of the public. This Forum thus came to the conclusion that there was no suppression of any material fact by the life assured and therefore, in repudiating the claim of the complainant, there was deficiency of service on the part of the Insurance Company, causing great hardship, financial loss and mental agony to the complainant. 

   So we are in a considered opinion to allow the complaint as policy holder was not suffering from any disease when she signed the policy proposal of this opposite party Insurance Company and opposite party could not prove the same. There is no question to suppress the material fact which may vitiate the contact of insurance. We direct the opposite party Insurance Company i.e. the OP No.1 to pay the death claim amounting to Rs.600,000/- against the policy being no. 496628098, a sum of Rs.30,000/- for mental pain, agony and harassment and another Rs.10,000/- for litigation cost.

  4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him? 

The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant is able to prove his case and the Opposite Party is liable to pay the ordered amount.

ORDER

Hence, it is ordered that the complaint be and the same is allowed on contest against the Opposite party No.1&2 with a litigation cost of Rs.10,000/-.

The whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint and Opposite Party No.1&2 are directed to pay the assured sum amounting to Rs.6,00,000/- to this complainant.

The OP No.1&2 are also directed to pay a sum of Rs.30,000/- as compensation to this complainant for mental pain, agony and harassment. The OP No.1&2 are directed to pay a sum of Rs.10,000/- for unfair trade practice in the account of Consumer Legal Aid Account.

All the payments are to be made within 45 days from the date of final order.

At the event of failure to comply with the order  the Opposite Party No.1&2  shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer Legal Aid Account. 

 Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.