( Passed on dated 20^th  November, 2015 )

Per Shri Atul D. Alsi – Hon’ble President.

              The complainant no. 1 and the brother of the complainant no. 2 by name Abbas s/o. Rajjak Sheikh was the registered policy holder of opposite party having policy no. 976581887 of  Rs.5,00,000/- dated 19.05.2009 and the complainant no. 2 was the nominee therein and the policy no. 976624230 of Rs.3,00,000/-.  The late Abbas s/o. Rajjak Sheikh died on 13.08.2009 at Navegaon Bandh due to Hepatitis and acute Renal Failure.  The complainants filed insurance claim with opposite parties along with documents.   

2.            The opposite party no. 1 issued the letter dated 12.09.2011 and thereby intimated to the complainants that they have no liability to make the payment of the said amount and he made several allegations of the breach of the policy.  The complainant appeared before the opposite party no. 2 and highlighted their grievance before him.   Finally in the month of March 2013, the opposite party no. 2 refused to award the insured amount to the complainants saying that the late Abbas Rajjak Sheikh has made breach of policy.                            

3.            The complainants praying to direct the opposite parties to make the payment of both the policies bearing no. 976581887 & 976624230 of late Abbas Rajjak Sheikh under risk cover to the complainants and also praying to grant any other appropriate relief which deems fit.

4.            After receiving the notice issued by the Forum, the O. Ps. appeared through their counsel and filed their written statement before the forum. 

5.            In their reply, O. Ps. stated that, it is not disputed that the deceased was issued with 2 Life Insurance Policies vide No. 976581887 for a sum of Rs.5,00,000/- dt. 04/06/2009 and the nominee was Sattar and the other policy was vide policy No. 976624230 for a sum Rs.3,00,000/- dt. 14/05/2009 with nomination in favour of Sattar. 

6.            The deceased Life Assured had taken treatment from rural hospital, Navegaon prior to risk date of both the policies i.e. on 06/02/2009 for Hepatitis with Pancreatitis with Renal failure.  The deceased Life Assured had taken the policies within a period of one month for about 8 lakhs First from Gondia, and the other policy from Tumsar.  As per the certificate issued by the Doctor at Rural Hospital, Navegaon Bandh, Dist. Gondia deceased Life Assured was treated on 06/04/2009 as out patient (OPD) basis having R.No. 4597.  The Doctor further states that the OPD papers was not kept in the hospital records as it was given to the patient as he was not admitted in the Hospital at that time.

7.            It is a contract of insurance falling in the category of contract Uberrimae fidei, meaning a contract of utmost good faith on the part of the assured.  An assured is under a solemn obligation to make a true and full disclosure of the part of the assured.   Any fact which goes to the root of the contract of insurance and has a bearing on the risk involved would be “material”.  The insurance Regulatory and Development Authority (Protection of policy holders Interest) Regulations, 2002 defines the world “material” to mean and include all “important”, “essential” and “relevant” information in the context of guiding the insurer to decide whether the undertake the risk or not.

8.            The death occurred within 3 months of policy commencement.  The claim falls under early claim.  Under Section 45 of the Insurance Act, the Life Insurance Corporation of India being insurer were entitled to investigate the claim within a period of two years of its inception and within that period the onus was on the complainant to prove that there was no suppression of material fact.

9.            The suppression of pre existing disease in the proposal for insurance itself vitiates the contract.  The deceased should have disclosed the material information of his health which mean and include all “important”, “essential”, and “relevant” information in the context of guiding the insurer to decide whether to undertake the risk or not.  The insured in the personal history details, which is attached with proposal form, had given a false misleading statement as if he was not suffering from any disease.  Thus, the O.P. was fully justified in repudiating the insurance contract.  The complaint may please be dismissed under the above.

10.                   The complainant has filed Copy of claim form at page no. 9, Copy of status report of policy at page no. 10, Copy of letter issued by O. P. dated 12/09/2011 at page no. 11, Copy of letter issued by O. P. dated 12/09/2011 at page no. 12, Copy of letter issued by O. P. dated 29/01/2011 at page no. 13, Copy of death certificate at page no. 14, Copy of certificate issued by Medical Officer, Rural Hospital, Navegaon Bandh at page no. 15, on record.

11.                   The opposite party has also filed Copy of proposal form of policy no. 976581887 at page no. 30, Copy of proposal form of policy no. 976624230 at page no. 33, Copy of clinical notes & medical case registration of Rural Hospital, Navegaon Bandh at page no. 38, Copy of death certificate of Abbas Sheikh at page no. 41, Copy of treatment certificate of Abbas Sheikh given by Rural Hospital, Navegaon Bandh at page no. 42, Copy of O.P.D. treatment paper of Abbas Sheikh at R.H. Navegaon Bandh at page no. 43, Copy of medical attendant’s certificate given by Dr. J. R. Shende at page no.44 on record.  

12.                   The learned counsel for complainant Mr. Vivek Dhurve filed his written argument.  In his written argument he is submitted that, D.L.A. was not treated in the Rural Hospital, Navegaon Bandh and Dr. J.R.Shende was not treated him on 06/04/2009f and any other date.  The D.L.A. was never under the treatment of Doctor before as well as after affecting the life insurance policy.  At the time of obtaining the policies the deceased was not ill after affecting the life insurance policy the deceased was seriously suffering from Hepatitis. The deceased disclosed the true information about his health.  It is submitted that Burden to prove his ailment lies on the O.P. which O.P. failed to prove the same.   He also submitted that, the O.P. failed to prove the contention of there W. S. by leading cogent proof of documents.   The O.P. failed to file material documents pertinent to medical officer etc and failed to prove the contents of documents which is on record.  The previous pathology report before accepting the proposal of insurance policy and after the proposal of insurance policy not filed just to prove that deceased has been suffering from diseased prior to insurance proposal.  The claim of complainant is correct and genuine one, hence award be passed according to prayer clause.

13.                   The counsel for O.P. Adv. Mr. C. N. Telang filed his written notes of argument.   In his written argument he is submitted that, the deceased L.A. was treated on 06/04/2009 as out patient R.No. 4597 as per the certificate issued by the doctor at Rural Hospital.  However, as per the certificate of the Doctor, the OPD papers were not kept in the hospital as it was given to the patient as he was not admitted in the hospital at that time.  The deceased L.A. was further treated at the hospital few days prior to his death.  These facts clearly demonstrate that, the L.A. was under treatment for a very serious ailment before and even after taking these policies.  In fact it the DLA was suffering from such a serious deceases it was his duty to disclose this fact while taking the policy.  This further shows that the DLA has taken these policies with malafide intention to defraud the O. Ps.  The D.L.A. deliberately gave wrong and misleading answer to the quarries in column 11 of the proposal form.  The very first question in the column 11 i.e. Question No.11a, the DLA gave a wrong answer.  In the circumstances, the complaint deserves to be dismissed.

14.                   As per petition, written notes of argument and documents filed on record following points came for consideration:-

REASONING & FINDINGS

15.                    The two life insurance policies bearing no. 976581887 for Rs.5,00,000/- on dated 04.06.2009 and policy no. 976624230 of Rs.3,00,000/- on dated 14/05/2009 were purchased from opposite parties and the complainant No. 2 was the nominee for the above two policies.  The O. Ps. have repudiated the insurance claim on the ground of suppression of material fact.  This fact is admitted by opposite parties hence it is proved that the deceased had purchased the two insurance policies from opposite parties.

16.                   The opposite parties have come with a specific defence of suppression of material fact by deceased at the time of inception of policies by supplying false information to the Question No. 11a to J in the policy and there is breach of section 45 of Insurance Act of suppression of material fact.  But the opposite parties did not file true and authentic medical case papers from the custodian of documents, the papers are not certified copies.  The opposite parties have to prove the contention by affidavit of Doctor’s who had written those papers or any competent doctor who can read and explain medical terminology as an expert evidence. 

17.                   It is the duty of opposite party to prove the documents by evidence because those documents was filed by opposite parties. As per Judgment give by National Commission in New India Assurance Company Vs. Mr. Lalit Bhambani and Others 2001 (3) CPR 121 held that – Appellant Insurance company produced certain unauthenticated record of hospital which was rightly not relied  upon – No material evidence or proof on record rebutting answers given by complainant in proposal – hence direction  is given to settle the claim.  This judgment is similar to the fact & circumstances of the case of complainants.  Hence it is relied on.  

18.                   The citations filed by opposite parties in the case were not applicable because the medical record was not submitted & filed on record by opposite parties.  Hence those citations are not taken into consideration in deciding the present case.

19.                   Therefore, the contention and defence of opposite parties has not been proved hence the complainants case is partly allowed and both complainants as legal heir and nominee of deceased are entitled to receive equally the insurance claim as per non-standard basis i.e. 75% of sum assured without any cost and interest and hence direction is given to O. Ps. to settle the insurance claim in respect of policies on non-standard basis and pay 75% of sum assured to the complainant No. 1 & 2 as per following order.

              Hence, the following order is passed.

-: ORDER :-

1.            The complaint is partly allowed.

2.            The O. Ps. are directed to settle the insurance claim of policy bearing No.976581887 and No.976624230 as per non-standard basis and pay 75% of sum assured to complainant No. 1 & 2 equally   without any interest, cost and compensation within 30 days from the knowledge of Judgment.

3.            No order as to cost, interest and compensation, if any.