OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.2/2010
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Sri Upendra Nath Deka - Member
Sri Pulak Baidya - Complainant
S/O Late Amulya Kumar Suklabaidya,
HariMandir Path, House NO.12,Krishna Nagar,
Guwahati-29, District- Kamrup (Assam)
-vs-
1) The Managing Director, - Opp.parties
M/S Birla Sun Life Insurance Company Ltd.
Andheri (East) ,Mumbai-59
Maharashtra.
2) The Branch Manager,
M/S Birla Sun Life Insurance Company Ltd.
Guwahati-II, Branch, G.S.Road,Guwahati-5
District -Kamrup, (Metro),Assam.
Appearance-
Learned advocate Mr. H.K.Das for the complainant.
Learned advocate Mr. Kailash Barman for Opp.Parties
Date of argument - 27.4.16
Date of judgment- 17.5.16
JUDGMENT
1) This is a proceeding under section 12 of the Consumer Protection Act,1986. The complaint was admitted on 8.1.10. The opp.party contested the case and filed the written statement. The complainant side filed affidavit of Sri Pulak Baidya, the complainant himself, and he was cross examined by the opp.party sides’ Ld.counsels. The opp.party side filed affidavit of one Sri Soumitra Neogi and he was cross examined by the Ld.counsel of the complainant side. Both sides filed their written argument. Finally, on 29.4.16, we have heard oral argument of Ld advocate Mr.H.K.Das for the complainant and of Ld.advocate Mr.Kailash Barman for the opp.parties. Today, we deliver the judgment which is as below.
2) The complainants’ case in brief is that the complainant’s father late Amulya Kr.Sukla Baidya had made a life insurance policy on 28.3.2008 for an amount of Rs.10,00,000/- with M/S Birla Sun Life Insurance Company Ltd. (Opp.Party) through Guwahati Branch, G.S.Road (Opp.Party No.2) on payment of first premium of Rs.2,00,000/- (Rupees two lakh)only on 31.3.2008 vide S.B.I. cheque No. 202212 and the number of the policy is 001640511 dtd. 28.3.08 which is to mature on 28.3.2016, but he died on 15.8.2008 due to cardio-respiratory failure. The complainant filed the claim before opp.party No.2 on 20.8.2008 for settlement of the claim, but they repudiated the claim on 12.11.08. The insurance policy was issued by the Insurance Company after having been satisfied with the medical examination report of the companys’ doctor, and the company undertook the responsibility of paying off the assured amount of Rs.10,00,000/- with interest on the date of maturity, or in the event of untimely death of the insured to the legal heirs of the insured. At the time of proposal no prescribed Medical form was supplied to the insured for filling up the details of the insured. The alleged filling up the medical form of medical examination report as the deceased insured upon which the company has been paying much emphasis is false and fabricated one, and the signature of the insured in the medical examination report does not tally with the signature given in the original insurance application form. It is required to direct the company to produce the original application form and the original Medical Examination Report so as to verify the purported signature of the insured by the authority and by the Forensic Laboratory to arrive to actual truth. The insured was suffering from a little bit high blood pressure, which is generally common to most of the people, but he was not suffering from “Epilepsy” within five years prior to issue of his policy as alleged by the company. The insured took “Epsod-100 gm” tablets only for 2/3 days and that does not signify that the insured was suffering from epilepsy . The digital ECG suggests that the insured was having “Wake and sleep” does not mean that the insured was suffering from “Epilepsy”, and the fact of prescribing medicine in Epilapsy clinical Pad does not mean that the deceased insured was suffering from “Epilapsy” while the test report does not show that . The doctor found that insured died of cardiac respiratory failure but not of high blood pressure or of epilepsy. The insured was hale and hearty for five years prior to taking the policy as per medical report of the doctor of the company. The medical term “Syncopal attack” means a brief loss of consciousness caused due sudden fall of blood pressure and these words used by doctor does not mean that the insured suffering from epilepsy. Regular medical check up undergone by the insured being a man of 60 years does not mean that he was suffering from serious ailments. The company being satisfied with the medical report of their doctor issued the policy and accepted premium of Rs.2,00,000/- on 14.4.2008. The company also declared that the bonus to be paid is exempted from income tax under section 80 DDC(c ) of Income Tax Act. After sudden death of the insured, the complainant filed the claim on 20.8.2008 and the company repudiated the claim on some flimsy grounds as revealed from letter dated 12.11.2008. If the insured found suffering from serious ailments, the company should not have issued the Policy and accepted the premium. As the policy was issued , the premium was accepted, the offer for contract was accepted and the consideration was paid, hence it is a valid contract under Indian Contract Act,1872 and hence, the company has no legal right to repudiate the contract by repudiating their liability to pay the assured amount of Rs.10,00,000/- to the complainant, who is the legal heir of the insured . The investigation report of the investigator of the company that the insured was suffering from high blood pressure and epilapsy are baseless and unsustainable; and the company cannot exonerate the liability to pay the assured amount on that ground. He lodged a complaint before the Ombudsman of the company with a prayer to call for original life insurance policy Application form and the original medical report, and to verify his signature and do justice to him, but the Ombudsman, after hearing the parties individually , but not in presence each other, passed order on 27.4.09 declining to interfere with the repudiation order dt. 12.11.08. Being compelled, he filed the complaint praying for directing the company to pay him Rs.10,00,000/- the assured amount with interest at the rate of 12% p.a. along with compensation of Rs.20,000/- and the cost of the proceeding.
3) The gist of the pleading of the opp.party Birla Sun Life Insurance Co.Ltd. is that the complaint is not maintainable; there is no cause of action for filing the complaint. The complaint does not qualify the ingredients of valid complaint u/s 2(c) of Consumer Protection Act, 1986. The Life Assured Lt. Amulya Kumar Sukla Baidya, at the time of filling the proposal form, mis-stated the material facts which were well within his knowledge, which were liable to be disclosed to the opp.party as per sec.45 of Insurance Act, 1938. As per contract of insurance, the person who obtained insurance is required to disclose the complete details pertaining to his health including life style on the basis of which the insurer is to issue the policy, and therefore, policy obtained by concealing the material facts and by misrepresentation and fraud is a contract which is null and void. The health condition of Life Assured was vital material fact for eligibility for availing insurance policy and non-disclosure of the vital fact is the sufficient ground for the insurer to reject the claim. The complainant has created false story in his complaint to mis-lead the Forum. The policy bearing No.001640511 was issued on the basis of an application dtd.31.3.08 under the Gold Plus II policy to assure the life of Mr.Amulya Kr.Sukla Baidya, wherein his son, the complainant, Pulak Baidya has been nominated as nominee. The insurance policy was issued on good faith that the insured has correctly, honestly, and fairly disclosed material facts which are within his knowledge. The policy was issued on the basis of information provided in the application form and documents submitted by the Life Assured in the application and the Medical Examination Report dtd. 31.3.2008. The Life Assured answered “No” to the question No. 3(a) and 3(b) as well as 4(a) and 4(b) which are
I) Whether, he consulted any doctor or other health practitioner within five years? the answer was “No” .
II) Whether within first five years he submitted ECG, blood test or other test and answer was “No”.
III) Have he ever had sought advice for chest pain, high blood pressure, stroke, heart attack,heart murmur or other health disorder; The answer was “No”.
IV) Whether he had diggy or fainting spells, Epilepsy, paralysis, nervous or mental /emotional disorder . The answer was “No”. The life assured had signed a declaration in the said MER which is
“ 1, Amulya Kr.Suklabaidya, declare that I have made no statement to the medical examiner, agent, or any person connected with the company which in any way qualifies or modifies the above answers which I have read and certify to be full and true to the best of my knowledge and belief.”
The cause of death of the assured is Cardio Respiratory Failure. All the statements given by the Life Assured in the Medical Officer Report as stated above are false statements. Having gone through the investigation subsequent to the death of the insured it has been established that life assured had been suffering from Blood Pressure and the Epilepsy well prior to date of application. He had a hereditary ailment of High Blood Pressure which revealed from para No.4 of the claim statement submitted by the claimant(complainant). The Medical Prescription issued by Dr.A.Mahanta dtd.23.8.2000 shows that the life assured was advised to take “Epsod 100 mg” tablets which is to be continued for three years and it was also stated that the life assured had three episodes of loss of consciousness and these vital information was not disclosed by the Life Assured at the time of applying of the said policy. Hypertension is a chronic medical condition in which the blood pressure in arteries is elevated and persistent hypertension is one of the risk factor in stroke, heart attack, heart failure and arterial aneurysm, but life assured had concealed all these facts and thereby induced them to issue the policy to him They would not have issued the policy to him if such vital information would have been disclosed by the life assured at the time of applying for the policy. In perusal of the past medical history the claim of the claimant, the claim was rightly repudiated by them vide letter dtd. 12.11.2008 on the ground of concealment of material facts and false declaration made by the Life assured in his application and the M.E.R., and the premium paid under said policy was forfeited by them. The policy was issued on good faith on declaration given by the Life Assured in the application form and the MER regarding to his medical condition which he himself had signed Under the policy it is the obligation of the complainant to disclose the material facts to them for assessment of the risk of issue of the policy and non-disclosure of material facts would allow the insurer to deny the claim under the provision of section 45 in the Insurance Act,1938. It is apparently clear that the Life Assured violated the terms and condition by giving false declaration in the medical examination report which led to repudiation of the claim. The order of the Ombudsman dtd. 27.4.09 that the order of repudiation of claim is justified, is a justified order. The signature of the Life Assured in the application form are tallying with the signature on the said MER, and neither the MER nor his signature thereon are forged. The death claim was repudiated in view of suppression of material facts by the Life Assured, and therefore they are not liable to pay any amount to the complainant, and the complaint is liable to be dismissed in limine. The duty to disclose the material facts continued right upto conclusion of the contract and also implies any material alternation in the character of the risk, which may take place between the proposal and its acceptance. The policy was taken by the Life Assured by giving false and incorrect information and by concealing material facts as to his health status, and he deliberately suppressed the material facts; and on such grounds they rightly repudiated the claim of the complainant.
4) We have perused the pleading as well as evidence of both sides . We have perused the submission of both sides’ ld counsels. It is transpires to us that it is both sides’ admitted facts that the father of this complainant, Late Amulya Suklabaidya had made insurance policy with the opp.party, Birla Sun-Life Insurance Company Limited vide Policy No. 001640511 dated 28.3.08 for an assured sum of Rs.10,00,000 (Rupees ten lakhs) only through its Branch Office at Guwahati, G.S.Road (Opp.Party No.2) and paid first premium of Rs.2,00,000/- (Rupees two lakhs)only on 31.3.2008 vide cheque No. 202212 (SBI), of which maturity date was 28.3.2016; and during continuance of the said policy he has died on 15.8.08 and his son i.e. the present complainant, Sri Pulak Baidya, who is the son and nominee of the said policy, filed claim (Rct-IV) before the opp.party (the insurer) on 2.1.2009, but they repudiated the claim vide their letter dated 12.11.09 (Ext.V).
5) The opp.parties states that the insured had not disclosed material facts as to health condition at the time of proposal of the policy, which was that at the time of proposal he was suffering from Epilepsy which he was taking “Epsod 100 mg” tablet for three years and he had also suffered from three episodes of loss of consciousness to proposal of the policy; and he was also suffering from chronic hypertension prior to the proposal of the policy, but he had filled up the form of Medical Examiner Report by answering the questions as “he had not consulted any doctor or other health practitioner within past five years, he had not submitted any ECG, X-ray reports, blood tests etc, and he had not sought for advice for chest-pain, high blood pressure, stroke, heart attack, heart murmur or any heart disorder, dizziness or faith spelling, epilepsay,paralysis and mental disorder within past five years ” and he himself filled up the said form, and hence they rightly repudiated the claim of the complainant.
Reversely, the plea of the complainant is that Medical Examiner Report was neither filed by his father (the insured) nor it was supplied to him, and it is forged document and signature thereover shown as the signature of the deceased is not his signature. The complainant’s second plea is that the insured was not suffering from chronic hypertension and epilepsay in the past five years prior to proposal of the policy, but he died on sudden heart attack and hence it can not be said that the insured had not disclosed the material facts as to his health prior to the proposal of the policy and therefore, the repudiation order is an illegal order.
In this case, the opp.parties had filed affidavits of two witnesses namely, Soumitra Neogi and Aparajita Bagshi as their evidence before filing evidence of Sri Pradeep Deb, but their affidavits are expunged owing to their failure to face cross-examination, and finally affidavit of Sri Rajdeep Deb was accepted as evidence of the opp.parties and he also faced cross-examination. It is seen that Opp.Party No.1- Rajdeep Deb states in his affidavit adjectly what the opp.party states in their pleading . But in the cross-examination, he states that he does not know whether purported signature of the insured on Ext B (MER) is the signature of the insured or not, and that he knows that the complainant states in the complaint that Ext.B (MER) is a forged document and the purported signature is not of the deceased insured and hence Ext.B and the original application form are required to be sent to the Forensic Laboratory to find out whether the signatures in Ext.B and the original application form are of the insured. He further states that they have not passed any opinion on that plea. It is also seen from the record that the opp.party has not taken step for sending Exhibit B (EMR) and the original application to Forensic Laboratory to find out whether the purported signature of the insured in Ext.B and the signature of the insured in the Application form are of the insured although it is their burden to take step for sending the same to Forensic Laboratory to find out whether the allegation of the complainant is true. The complainant states that the deceased never filled up Ext.B nor put his signature therein. Thus, it is clear that the opp.party side has defaulted to discharge their burden to get the alleged EMR (Ext.B) and the original application forum examined through Forensic laboratory. Thus, this conduct of the opp.party infers that whatever is stated by the complainant is true. Therefore, we hold that Ext.B (EMR) is a forged document and the purported signature of the insured therein is a forged signature . Thus, it is crystal clear that the opp.party, at the time of the proposal of the policy, never supplied the format of EMR to the insured and nor he filled up any such format; and the alleged answers of the questions seen in Ext.B are not answers given the insured and nor he filled up any such format. Hence, we hold that the alleged answers of the questions seen in Ext.B are not answers of the insured.
6) We have perused Exhibit D and Exhibit D is the prescription issued by Dr.A.Mahanta to the insured on 23.8.2000 i.e. before 7 years of proposal of the policy. So, we can not hold that within past five years immediately before the proposal of the policy the insured was suffering from Epilapsay . Secondly, from Ext.D, it is also seen that the tablet - Epsod 100 mg was prescribed to the insured for three years, but the opp.party produces no other evidence to show that the insured had actually taken that tablet for three years and he was suffering epilapsay during that three years. So, a single prescription that was issued 7 (seven) years prior to the proposal of the policy can not be held to be a proof of suffering of epilapsay by the insured during past five years before the proposal of the policy. It is also seen that the insured has died of on heart attack only and the opp.party side admits that the empanelled doctor of the opp.party before proposal of the policy examined the insured and found him in good health. After perusing Ext.C, we have found that the insured was suffering from high blood pressure, but the doctor does not say that he was suffering from acute high blood pressure with risk of his life. The insured is found to have died of heart attack , but not of epilapsay or acute blood pressure. Thus , it is clear that at the time of proposal of the policy or during past five years before the proposal of the policy, the insured was suffering neither from acute high blood , nor from epilapsay. So, we hold that at the time of the proposal of the policy or during past five years before the proposal the policy he had been in good health and that the cause of death of the insured is an accidental cause having a person may suffer from heart attack on different reasons,one of the reasons may be involving emotion to social and family matters. So, We hold that the accidental death due to sudden heart attack meted to the insured does not infer that he had been suffering from acute highpertension or epilepsy since prior to proposal of the policy. In these circumstances the case laws referred by the opp.party. (i) P.C.Chako and another –vs- Chairman,LICI and others 2007 (13) Scale 329 (ii) Haji Ahmed Yar Khan –vs- Abdul Gafar Khan AIR 1937 Mag 270-272) (iii) LICI and others –vs- Smti Asha Goel and Another ( LICI and others –vs- Smti Asha Goel and Another (AIR 2001 SC 549) can not come into support of the pleas of the opp.parties.
7) In view of above discussion, we hold that the opp.party side has no sufficient grounds to repudiate the claim of the complainant, and hence the very act of repudiation of the claim by the opp.party (vide letter date 12.11.2008) is an illegal act and that act amounts to deficiency of service towards to the complainant. Therefore, the complainant is entitled to insured amount of the policy made by his father Rs.10,00,000/- with interest at the rate of 12% p.a. from the opp.parties from 8.1.2010 (date of filing of the complainant) and also to atleast Rs. 10,000/- as compensation for causing harassment to him by the opp.party by not allowing the claim , and also Rs.10,000/- as cost of the proceeding.
8) Because of what has been discussed as above, the complaint against opp.parties is allowed on contest and the opp.parties are directed to pay the complainant, Sri Pulak Baidya , the insured amount of Rs.10,00,000/- (Rupees ten lakhs)only of the policy No. 001640511, which had been made by his father Late Amulya Kumar Suklabaidya with the opp.party, with interest at the rate of Rs.12% p.a. from 8.1.2010 and also to pay him Rs.10,000/- (Rupees ten thousand) as compensation, and Rs. 10,000/- (Rupees ten thousand) as cost of proceeding to which they are jointly and severally liable . They are directed to pay the amounts to the complainant within three months, in default of which , other two amounts shall also carry interest in the same rate.
Given under our hands and seal of this forum on this day 17th May, 2016.
Free copies of judgment be delivered to the parties.
( Mr.U.N.Deka ) (Md.S.Hussain)
Member President
