DATE OF FILING: 8.4.2013.
DATE OF DISPOSAL: 16.6.2016.
Dr. N.Tuna Sahu, Member.
The complainant has filed this consumer dispute in this Forum under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in insurance service against the Opposite Parties for redressal of her grievance.
2. Briefly stated the case of the complainant is that the son of the complainant late Tapana Kumar Misra who was serving as a Deputy Manager in H.A.L. Koraput when he was alive insured his life in the LIC of India through New Bima Gold policy in table No. 179-16 in the City Branch Office, LIC of India, R.C. Church Road, in Berhampur under O.P.No.3 vide LIC policy Number 573059097. The date of commencement of policy was 28.11.2010/ 29.11.2010 for an assured sum of Rs.2,00,000/- on payment of Rs.10,460/- towards premium. The present complainant Smt. Lolita Kumari Mishra, the Natural Mother of the policy holder was nominee in the said LIC policy. While the policy was in force, unfortunately, the policy holder of LIC of India vide policy number 573059097 son of the complainant was expired on 6.1.2012 while he was in the service. It is also claimed that after the death of said policy holder, the complainant is entitled for death claim of the said LIC policy as the nominee of said policy. The complainant lodged her death claim in the office of the O.P.No.3 and filed claim application along with LIC policy Bond, death certificate of the deceased policy holder obtained from competent authority other required particulars for settlement of the death claim of deceased policy holder. The death claim of complainant nominee of the said policy was numbered in REF: BDO/Claims/Rep./Br-1 in the office of O.P. and instead of settling the death claim of the complainant, the O.Ps repudiated the claim on flimsy and untenable grounds on the basis of withhold of the material information regarding his health at the time of obtaining said policy. It is also stated that the deceased policy holder had submitted policy proposal form at the time of commencement of the policy on dated 28.11.2010 and the item nos. i to ix in the letter of repudiation were correctly answered. The complainant has alleged that the O.Ps without any reason erroneously repudiated the claim of the complainant that he was undergoing treatment in Care Hospital, Visakhapatnam for his cardio vascular disease from 14.7.2009 to 21.7.2009. It is also claimed that the death of the policy holder did not cause due to heart stroke but due to effect of injunction applied on his body and his death was natural death. In order to avoid settlement of his claim, the O.Ps with mala fide intention played mischief with the complainant by issuing the letter of repudiation of the claim on 12.11.2012. Soon after receipt of letter of repudiation, the complainant on 30.1.2013 issued protest letter but the O.Ps did not give any heed to her protest. When the O.Ps did not settle the claim of the complainant, she filed this consumer dispute against the O.Ps with a prayer to direct the O.Ps to pay Rs.2,00,000/- towards assured sum of the aforesaid policy with interest @18% per annum along with bonus and cost and compensation.
3. Upon notice the O.Ps filed written version/written argument through his advocate. It is stated that all averments made in the petition are not true and correct and the complainant is put to strict proof of the same. It is admitted that during his life time, Tapan Kumar Mishra had taken five insurance policies from these O.Ps. Tapan kumar Mishra died due to cardio vascular diseases at Care Hospital, Visakhapatnam on 6.1.2012. On being intimated about the death and filing of the claim papers by the nominee Smt. Lalita Kumari Mishra, these O.Ps settled the claim by crediting/paying Rs.1,09,322/-, Rs.1,09,322/- and Rs. 95,864/- only through NEFT on 30.7.2012 into the account of the nominee Smt. Lalita Kumari Mishra against the policy No.570750863, 570750864 and 570751361 respectively. The claim arising out of policy No. 571384340 has been admitted and they are to pay Rs.1,74,200/- only. They have also expressed their willingness to settle the claim as per the direction of the Hon’ble Court of the Civil Judge (Senior Division) Berhampur in CS No.226/2012. However, the Hon’ble Court vide its order dated 7.10.2013 in IA No. 80/2012 arising out of CS No.226/2012 has been pleased to pass an order stating therein that, “The defendants 2 and 3 are restrained not to release the said policy amount in favour of either party till disposal of this case. The policy No. 573059097 was taken by the life assured on 28.11.2010 for a sum of Rs.2,00,000/-. At the time of taking the policy the deceased life assured had given the proposal form stating his health condition as good and he was not suffering from any diseases. The life assured had also clearly stated “No” to all the questions mentioned vide clause No. 11 (I to viii) and stated “good” to the question mentioned in 11 (ix). However, being an early claim, on verification it was found that the deceased life assured was admitted to Care Hospital, Visakhapatnam for treatment of his cardiovascular diseases from 14.7.2009 to 23.7.2009. So, it is clear that the deceased life assured by suppressing material facts regarding his illness and treatment had taken the aforesaid policy bearing No. 573059097. So, these defendants have repudiated the death claim arising out of policy No. 573059097 and intimated the same to the nominee Smt. Lalita Kumari Mishra vide its letter dated 12.11.2012. So nothing is payable under this policy. The contract of insurance is a contract of UBERRIMA FIDES, i.e. contract of utmost good faith. In this case the policy holder has by deliberately suppressing his health condition taken this policy and this opposite parties on detection of the same has rightly repudiated the claim. No medical examination was required to be conducted, since the coverage of insurance is granted on the basis of self declaration of good health only. The health condition of a policy holder is a material condition in the contract of insurance and as the material condition was suppressed, the O.Ps have rightly repudiated the claim. The Life Insurance Corporation of India is the Trustee of policy holder’s money. So, all the claims are dealt carefully by its officers. Hence, there is no deficiency in service of by the OPs in this case nor they have caused any mental agony or hardship to the complainant. Rather the life assured tried to defraud the corporation, which was detected with proof. The case involves complex question of facts, evidence and law. Hence this Hon’ble Forum has no jurisdiction to try the same and the matter can be properly adjudicated the Civil Court, where it is pending. Hence, prayed to dismiss the case with exemplary cost in the interest of justice.
4. On the date of hearing, we have heard Mr. R.K. Mohapatra, learned counsel for the complainant and Mr. B.K. Mohanty, learned counsel for the O.Ps. We have also gone through the complaint, written arguments and verified the vital documents like policy document bearing No.573059097, death certificate, and repudiation letter dated 12.11.2012. We have also perused the list of documents filed by the learned counsel for the O.Ps like repudiation letter dated 22.4.2013, copy of out-patient card dated 14.7.2009 of Care Hospital Visakhapatnam, copy of the order dated 31.8.2015 passed by the Hon’ble High Court, Odisha Cuttack in CMP No. 813 of 2014 and in MC No. 757 of 2014. We have also gone through thoroughly the order of the Court of Civil Judge (Senior Division) Berhampur, Dist. Ganjam vide Civil Suit No.226 of 2012 dated 19.2.2016 and simple money decree pertaining to civil suit No. 226 of 2012.
We have also carefully considered the submissions made by the learned counsels for the parties. On perusal of materials on record, it appears that this matter has already been heard and decided by the Court of the Civil judge (Senior Division) Berhampur, Dist. Ganjam and by the Hon’ble High Court of Odisha, Cuttack vide CMP No. 813 of 2014 and M.C. No. 757 of 2014 decided on 31.8.2015. The Hon’ble Civil judges, Senior Divison, Berhampur, Ganjam in its order dated 19.2.2016 has judiciously decided the mater and subsequently the Hon’ble High Court of Odisha, Cuttack has directed the present complainant to settle the dispute by filing an affidavit before the trial court as per the observation made by the Hon’ble High Court of Odisha, Cuttack. However, the insurance claim pertaining to policy bearing No.573059097 of the nominee complainant has not been clearly decided either by the learned Civil Judges Senior Division, Berhampur, Ganjam or by the Hon’ble High Court of Odisha, Cuttack. Hence in this dispute, the complainant has specifically prayed before this Forum to direct the O.Ps to settle the claim of complainant and to pay Rs.2,00,000/- towards sum assured under the said insurance policy. Now, the only issue which has arisen for our consideration in this case as to whether the O.Ps have rightly repudiated the claim of the complainant and whether the deceased policy holder had suppressed material facts during taking of the alleged policy in dispute.
5. To adjudicate and resolving of the above two issues in dispute, we need to move to the merits of the case. As per materials on record and merit of the case, it is not at all in dispute that the deceased policy holder took the insurance policy bearing No.573059097 dated 28.11.2010 on payment of yearly premium of Rs.10,460/- for an assured sum of Rs.2,00,000/-. It is also beyond any dispute that the present complainant was nominated as nominee of the said policy by the deceased policy holder under Section-39 of the Insurance Act, 1938. However, unfortunately the deceased policy holder died on 6.1.2012 while he was undergoing treatment for his cardio vascular disease at Care Hospital, Visakhapatnam. The nominee complainant intimated the death of the deceased policy holder to the O.Ps and after enquiry; the O.Ps repudiated the claim of the complainant on 12.11.2012 on the ground of suppression of material facts about the health conditions of the deceased policy holder. As per the specific plea of the O.Ps that the deceased policy holder took five policies bearing No.570750863, 570750864, 570751361, 573059097 and 571384340 respectively and the present complainant was nominated as nominee of all aforesaid policies. The O.Ps paid a total sum of Rs.3,14,508/- pertaining to policy No.570750863, 570750864 and 570751361 respectively and even the O.Ps expressed their willingness to pay Rs.1,74,200/- towards the claim of policy No.571384340 as per the direction of Hon’ble Court of Civil Judge (Senior Division) Berhampur, District-Ganjam. However, the claim of the policy bearing No.573059097 was repudiated on the ground of suppression of material facts. The O.Ps repudiated the claim of the complainant concerning the aforesaid policy because on their enquiry, they could know that the deceased was undergoing treatment for cardio vascular disease in Care Hospital at Visakhapatnam, during the period from 14.7.2009 to 23.7.2009. The deceased policy holder took the aforesaid policy in dispute on 28.11.2010 by suppressing the above material facts after his treatment. In support of his contention, the learned counsel for O.P. drew our attention towards treatment papers placed on the case record as document No.3 submitted by the O.Ps.
6. We have meticulously perused the aforesaid treatment papers of the deceased policy holder. On perusal of the treatment papers of Care Hospital, Visakhapatnam of deceased Tapan Kumar Mishra, the policy holder, it is found that the deceased policy holder was admitted into the Care Hospital on 14.7.2009, surgery was done on 16.7.2009 and he was discharged from the said Hospital on 23.7.2009. It is crystal clear from the treatment papers that he was undergoing treatment for his cardio vascular disease as per the diagnosis made by the doctors. Hence, it is beyond any dispute or doubt that the deceased policy holder took the aforesaid policy on 28.11.2010 after his surgery suppressing material facts about his health conditions. On verification of the statement of the life assured placed in the case record it is found that he had concealed true and materials facts with respect to state of his health at the time of obtaining the insurance policy in dispute. He had withheld material information regarding his health at the time of taking the insurance policy. The proposal for assurance dated 28.11.2010 was not properly answered by the deceased policy holder and he took the policy fraudulently by suppressing material facts. The medical report issued by Care Hospital, Visakhapatnam reflects that the life assured was undergoing treatment as stated above. It has been held in catena of judgments that the contract of insurance is based on good faith. It is the life assured who can give the correct information with respect to his health which in the instant case the life assured has not given and as such we feel that the O.P has rightly repudiated the claim of the nominee complainant. Our finding is fortified by decision of Hon’ble Supreme Court in the case of Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd reported in IV (2009) CPJ 8(SC), the hon’ble Court held that insured is under obligation to make true and full disclosure of information within his knowledge. Where insured is on regular treatment and fully aware about his state of health and statements made in the proposal form regarding as to state of health are palpably untrue to his knowledge, repudiation of claim is justified. We also rely on another citation of Hon’ble National Commission in the case of Gian Singh & Ors Vs. Life Insurance Corporation of India, Rohtak & Ors decided on 5.2.2013 vide Revision Petition No.2148 of 2012 reported in 2013(I) CPR 278 (NC).
7. We have also perused the two decisions filed by the learned counsel for the complainant. The learned counsel has relied on the decision of Hon’ble State Commission, Odisha reported in OLR 2013 Vol-1 page 773 in the case of CD Appeal No. 101 of 1999 between Sr. Divisional Manager, New India Assurance Company Ltd Vs. Nabakishore Patra and Others and another citation reported in 2007 (II) OLR (CSR)- 70 in the case of M/s National Insurance Co. Ltd Vs. Nilamani Mishra and Another. After perusal of both citations we found that facts of both case are very different from the facts in the case before us. Therefore, the case of the complainant can derive no support from the decisions cited by the counsel for the complainant. In our considered view in the present case as a matter of fact, the suppression of material fact during taking of the policy is proved from the medical treatment papers and no citation of higher authorities can help change facts of a particular case. Hence, the citations are not at all applicable to the present case in view of the fact and circumstances of the present case, so we are not inclined to accept those two citations hence rejected.
8. In view of the above discussion, the learned counsel for the complainant failed to prove his case and the contentions of the counsel for the complaint are not acceptable and not tenable under law since the allegation of illegal repudiation of insurance claim of the complainant by the O.Ps is not proved, rather it is established that the complainant had suppressed material facts while taking the policy in dispute. The contention of the learned counsel for the complainant that the death of the deceased policy holder did not cause due to heart stroke in effect of cardio vascular disease but due to effect of injunction applied his body also not proved since there is nothing placed on record to prove the same and persuade us otherwise. The allegation of avoiding settlement of claim of the complainant by the O.Ps with mala fide intention is also proved wrong since nothing has been placed on record to hold otherwise.
9. In the light of the above discussions and in view of the facts and circumstance of the present case, in our considered view, the complainant failed to prove his case since the deceased policy holder as discussed above had suppressed material facts during taking of insurance policy in dispute, hence not entitle to get the insurance claim under the policy as contended by the learned counsel for the O.Ps.
10. In the result, we dismiss the complaint of the complainant due to devoid of any merit. The case of the complainant is disposed of accordingly. The parties are directed to bear their own cost. The case of the complainant is disposed of accordingly.
11. The order is pronounced on this 16th day of June 2016 under the signature and seal of this Forum. The office is directed to supply the copy of the order to the parties free of cost as per rules.
