The Complainants have filed this case alleging deficiency-in-service by the O.Ps, where O.P No.1 is the Managing Director, Bajaj Allianz Life Insurance Company Ltd., Yerwada, Pune and O.P No.2 is the Branch Manager, Bajaj Allianz Life Insurance Company Ltd., Soro Branch, Soro.
1. Factual matrix of the dispute is that one Arati Sethi, wife of Complainant No.1 and mother of Complainant No.2 and 3 insured her life under O.Ps vide Policy No.0312952934 on 04.03.2014, being the date of maturity on 03.03.2036 for a term of 22 years. The Complainant No.1 is the nominee for the above said Policy. But, Arati Sethi, the Policy holder expired on 02.12.2014. All three Complainants are the Legal heirs of the deceased Policy holder Arati Sethi and the value of the Policy is within Re.2.50 Lacs. Payment of premium is regular and updated. The Complainant No.1, being the nominee of said Policy intimated to the O.Ps about the death of Policy holder and submitted the copy of death certificate, original Policy bond and his identity proof for settlement of claim of the deceased life assured (in short DLA) before the O.Ps. The O.Ps assured to settle the claim, but till date they have not done so, thereby, the Complainant No.1 served a legal notice to the O.P No.1 through his Advocate on 15.05.2015 to settle the claim of the Complainants within 15 days of receipt of the notice, but the O.P No.1 has not settled the claim of the Complainants yet. Prayer for payment of all benefits under the Policy No.0312952934 along with interest and compensation for mental agony and litigation cost.
2. Written version filed by the O.Ps through their Advocate, where they have denied about maintainability. They have also submitted that the insurance policy is based upon contract, where the prospect has to fill material details in the proposal form such as medical, income details and nomination details and on the basis of such material information provided for the insurance policy is issued, being verified by the insurance company. And also on the basis of a declaration given by the Complainant No.1 that he has read the application and the answers thereon is full, complete and true, accordingly the O.Ps believing them to be such, shall rely the Policy holder and the Company based upon proposal given by the Policy holder. Hence, the Complainant is to abide with the Policy term and conditions as declared by her in the proposal form submitted to the O.Ps. Moreover, the complaint deserves to be dismissed on the principle of “Allegatiocontrafactum non estadmittenda”, because all the allegations and statements made in the complaint are contrary to the terms and conditions of the Policy documents and hence, do not deserve to be heard as allegations. Further, the complaint deserves to be dismissed on the principles of “Nilluscommodumcaperepotestexsuainjuriapropia”, as the Complainant cannot derive an advantage from his own wrong. In addition, pre-existing health conditions is a material fact which was required to be disclosed. Moreover, a deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the Policy, being vitiated in Law. Further, it is submitted that the non-disclosure amounts to fraud and the Complainant cannot take the benefit of its own wrongs [U/s.19 of the Contract Act (9 of 1872)]. The O.Ps have also submitted that the DLA has undergone hospitalization and treatment during 07.11.2013 to 13.11.2013 for disease Systemic Scierosis (Scleroderma) diffuse cutaneous (SSc-Dc) since 10 months prior to submission of proposal form dt.28.02.2014 resulting into fraud (active concealment of a fact by the insured having knowledge or belief) and suppression of fact material in nature. The DLA has sound health and not suffering from any disease as per Column-22 of proposal form under good health declaration. But on investigation, insurer found DLA was admitted at Unit of Clinical Immunology and Rheumatology, Department of Medicine, SCB Medical College, Cuttack vide registration No.810, dt.07.11.2013 and discharged on 13.11.2013. Thus, the DLA was suffering from the above said disease for last 10 months of her admission to the above said medical college and without disclosing this fact in proposal form has obtained the aforesaid Life insurance Policy by non-disclosure of material fact and misrepresentation of fact, which vitiates the Policy. Hence, the Complainants are not bonafide claimant under the aforesaid Policy and bonafide Consumer under the O.Ps (copies of Proposal form, hospitalization/ treatment during 07.11.2013 to 13.11.2013 filed as Annexure-A and B). Cause of death certificate from the Doctor who last attended to the DLA or from the Hospital in which death occurred is not submitted by the Complainant. The DLA along with agent requested for issuance of Policy with intention to fraud the insurer, so this contract is void ab-initio. Accordingly, the O.P No.1 has repudiated the claim of the Complainants and intimated vide letter dt.23.03.2015.
3. In view of the above averments of both the Parties, the points for determinations of this case are as follows:-
(i) Whether this Consumer case is maintainable in the eye of Law.
(ii) Whether there is any cause of action to file this case by the Complainant.
(iii) To what relief the Complainant is entitled for ?
4. In order to substantiate their pleas, both the Parties have filed certain documents in their support. Perused the same. It is the admitted fact that the deceased Arati Sethi is the Policy holder of Bajaj Allianz Invest Assure Policy under the O.Ps bearing Policy No.0312952934 and the Complainants are the legal heirs of the deceased Policy holder, who died during the existence of the Policy. The deceased Arati Sethi died on 02.12.2014 and the xerox copy of death certificate discloses about the same. It has been argued on behalf of the Complainants that after death of Arati Sethi, in spite of several approaches to the O.Ps, they did not settle the claim, rather repudiated the claim on the ground of non-disclosure of material facts and suppression of the same regarding medical treatment of deceased from 07.11.2013 to 13.11.2013 by hospitalization for the disease Systemic Scierosis (Scleroderma) diffuse cutaneous (SSc-Dc) since 10 months prior to submission of proposal form dt.28.02.2014 resulting into fraud (active concealment of a fact by the insured having knowledge or belief) and suppression of fact material in nature. The repudiation letter has been filed by the O.Ps vide Annexure-13. Perused the same along with other material available. It has been further argued on behalf of the Complainants that the plea/ allegation of the O.Ps is baseless and repudiation of the claim is not bonafide and genuine and it is only to harass the Complainants for getting the genuine death benefits of the deceased. Further, it has also been argued on behalf of the Complainants that when the O.Ps have accepted the facts and information mentioned therein after thorough investigation, they did not settle the claim till yet. Further it has been argued on behalf of the Complainants that a Policy holder in worst case has not disclosed about the temporary suffering of his/ her casual illness, it shall not be amounts to violation of terms of the Policy.
5. On the other hand, it has been argued on behalf of the O.Ps that after getting the claim papers of the deceased Policy holder and on thorough scrutiny of it found that the material fact of illness of the deceased, which was of serious nature and about hospitalization of the deceased. This material facts have been suppressed by the Complainants. The death claim investigation report has been filed by the O.Ps as Annexure-9, which discloses that deceased Arati Sethi was admitted at “Unit of Clinical Immunology and Rheumatology, Department of Medicine, SCB Medical College, Cuttack vide registration No.810, dt.07.11.2013 and discharged on 13.11.2013. As per the Register, her disease name is mentioned as SSC-DC. The xerox copy of Discharge Certificate of concerned Medical College and Hospital has been filed by the O.Ps as Annexure-10 and 11. Both these documents disclose about the disease of the deceased Arati Sethi confirming the allegation of the O.Ps. So, the argument of the Complainant that the allegation of O.Ps has no base regarding previous illness is not correct. In the Proposal form vide Annexure-1, in the Sl. No.22 (Clause-L) discloses about the declaration of good health and there it has been mentioned as “In the Last five years, have you ever had or been advised to have, or are likely within the next thirty days to undergo Medical Examination or any investigations such as but not limited to Blood Test, Urine Test, X-Ray, ECG or Biopsy, CT Scan or test by any other special instrument ?” and the answer is ‘No’. So, basing on these material facts, it has been argued by the O.Ps relying upon the Authority reported in 2015 (1) CPR-448 (NC) in the case of Amzad Khan (Vrs.) The Manager, Aviva Life Insurance Co. Ltd., where it has been held by the Hon’ble National CDR Commission, New Delhi that in a contract of Insurance any fact which would influence mind of a prudent insurer in deciding whether to accept or not to accept or not to accept risk is a material fact. Similarly, in the Authority reported in 2010 (2) CPR-285 (NC) in the case of Kokilaban Narendrabhai Patel (Vrs.) Divisional Manager, Life Insurance Corporation of India, where it has been held by the Hon’ble National CDR Commission, New Delhi that Insurance Policy is a contract failing in the category of utmost faith on the part of the assured and if the assured has not made full disclosure correctly or, in other words, if the declaration made is found to be false to the knowledge of the declarant, then, the Insurance Company is entitled to repudiate the claim. Similarly, in the Authority reported in 2011 (1) CPR-300 (NC) in the case of LIC of India (Vrs.) Smt. Dalbir Kaur, where it has been held by the Hon’ble National CDR Commission, New Delhi that suppression of material facts by insured may vitiate Insurance Policy. Similarly, in the Authority reported in 2011 (2) CPR-40 (NC) in the case of Kajol through its guardian Smt. Chandar Kanta (Vrs.) Life Insurance Corporation of India, Division Delhi, Division-II, where it has been held by the Hon’ble National CDR Commission, New Delhi that an assured is under solemn obligation to make a true and full disclosure of information on the subject which is within his knowledge. Similarly, in the Authority reported in 2011 (4) CPR-96 (NC) in the case of LIC of India (Vrs.) Smt. Vimla Verma, where it has been held by the Hon’ble National CDR Commission, New Delhi that suppression of any material information by insure would amount to breach of contract which would justify repudiation of claim by Insurance Company. So, basing on the principles decided by the authorities as discussed above, it has been argued on behalf of the O.Ps that the repudiation is genuine and the Complainants are not entitled to get any benefits from the O.Ps-Insurance Company.
6. So, now on careful consideration of all the materials available in the case record and on the basis of principle laid down by above authorities as discussed above, this Forum come to the conclusion that the repudiation of the claim by the O.Ps have sufficient basis as per Law, for which the Complainants are not entitled for any relief as prayed for from this Forum and accordingly, this Consumer case is liable to be dismissed. Hence, Ordered:-
O R D E R
The Consumer case is dismissed on contest against the O.Ps, but in the peculiar circumstances without cost.
Pronounced in the open Forum on this day i.e. the 12th day of June, 2017 given under my Signature & Seal of the Forum.
