The case of the complainant is that her husband, Gour Hari Shaw took an insurance policy from OP no. 2 on 28-03-2006 vide Policy No. 437135824 for a sum assured of Rs. 1,00,000/-.  The said insured i.e. complainant’s husband died on 09-04-2007 and subsequently, the complainant lodged a death claim with OP no. 2.  However, despite complying with necessary formalities and furnishing requisite documents, the OPs have not settled her claim.  Hence the instant case seeking compensation and other relief as per prayer of the complaint.

The OPs contested the case by submitting w.v.  They also contested the case truly by taking a positive part in the argument.  By their w.v., the OPs denied all the material allegations leveled by the complainant against them with the contention that the complainant’s husband had been suffering from Acute Nepbotic Syndrome and diabetic mellitus for long duration.  However, the complainant made the insurance policy by suppressing such material fact from the OP. Therefore, the complainant is not entitled to get any relief for such concealment of material fact.

Decisions with reasons

We have carefully gone through the documents filed by (a) the complainant viz Photocopies of Death Certificate, Policy Certificate, letter of OP dt. 05-03-2008, Lawyer’s notice dt. 24-10-2011 and (b) the OPs viz original copies of Policy Certificate, Proposal Form, Agent’s Confidential Report, Medical Examiner’s Confidential Report, Employer’s Certificate, Claim Enquiry Report and photocopy of Dr. S. M. Ali’s Fit Certificate dt. 28-04-2006.

It is evident from the w.v. of the OPs that per se they have no objection as regards maintainability of this case under the Consumer Protection Act.  Besides, materials on record also sufficiently prove that the case is admissible under the Act.

Now let us consider as to whether the complainant is entitled to get any relief as sought for.

Drawing our attention to the photocopy of Dr. Ali’s Certificate dt. 28-04-2006, ld. Counsel for the OPs contended that the insured Gour Hari Shaw, since deceased, took the policy by concealing the fact that he had been suffering from Acute Nepbotic Syndrome and diabetic mellitus for which he was under the treatment of the said doctor and according to the OPs, he was guilty of breach of trust for which the claim of his widow is not tenable.

There is no reason to differ with the view of the OPs that suppression of material fact makes a claim null and void.  Having said that, we must confess that the onus to prove the allegation as regards suppression of material fact on the part of the insured lies squarely with the insurer.  In order to substantiate the charge, OPs’ have submitted some documents.  So, let us decide whether the said documents suffice to substantiate the OPs’ allegations.

On careful scrutiny of the documents on record, the following facts traverse our mind.

First, there is nothing on record to prove that the insured died of the disease (Acute Nepbotic Syndrome and diabetic mellitus) which the complainant is alleged to have suppressed before the OP while filling up the proposal form. Thus, we do not find any nexus between the cause of death vis-à-vis alleged supersession of the disease in question.

Second, it appears from the Employer’s certificate and other documents on record that Gour Hari Shaw, since deceased, was a driver by profession.  It further appears from the Proposal form and other documents that he signed the papers in Bengali whereas the Proposal Form and other documents were filled up in English, which clearly goes to show that said Gour Hari Shaw did not possess reasonable degree of knowledge in English language. The OPs have not brought the person who filled up the forms on behalf of the complainant to testify before us.  Thus, we cannot say with reasonable degree of certainty that the Proposal Form and other documents were duly filled up as per the information provided by said Gour Hari Shaw or the contents thereof was properly read over and explained to him.

Third, from the Medical Examiner’s Confidential Report dt. 28-03-2006 it transpires that Gour Hari Shaw was thoroughly examined by Dr. Goutam Bhattacharyya, who happens to be one of the empanelled doctors of OP insurer and the said doctor did not make any adverse comment about the physical condition of Gour Hari Shaw, since deceased.  The report of said doctor is a very important piece of document which cannot be brushed off.

Fourth, it is also evident from the Employer’s Cetificate that Gour Hari Shaw joined service on 07-05-1980 and during the long period from 07-05-1980 to 27-03-2007, he availed of commuted leave only once during the period from 24-03-2006 to 27-04-2006.  Thus, we do not find any cogent ground to believe that said Gour Hari Shaw had long history of medical ailment as alleged by the OPs.

Fifth, it also transpires from the photocopy of Doctor’s certificate dt. 28-04-2006 that Dr. S.M.Ali declared the insured Gour Hari Shaw physically fit to resume duty on 28-04-2006 and thereafter, the said insured attended his official duty on a regular basis till 27-03-2007 (as it is evident from the Employer’s Certificate).  It clearly goes to show that the said insured did not feel any discomfort to discharge his official duty for nearly one year.  It is naïve to believe that had the disease been of acute nature - as the OPs tried to project - said Gour Hari Shaw would not have been able to attend office regularly.

The foregoing discussion clearly bring to fore several loopholes in the contention of the OPs and this sufficiently proves gross deficiency in serve on the part of the OPs.  Thus, we hold that the complainant is entitled to get the sum assured of Rs. 1 lakh together with compensation Rs 8,000/- and cost Rs. 2,000/- from the OPs.

Hence, it is

Ordered

that the instant CC complaint no. 23/2011 be and the same is allowed on contest in part.  The OP is directed to pay Rs. 1 lakh to the complainant as death claim along with compensation Rs 8,000/- and cost Rs 2,000/- within 45 days from the date of communication of this order i.d. the complainant is at liberty to execute the order in accordance with law and in such case, the OPs will be liable to pay interest @ 8% p.a.  over the total awarded amount from the filing of this case till full and final settlement.

Dictated and corrected

by me

                         President

S.S. Ali                                                A.K. Bhattacharyya

Member                                               President