In the District Consumer Disputes Redressal Forum Murshidabad,

Berhampore, Murshidabad

Case No. CC/24/2014

Date of filing: 24 /02 /2014                                                              Date of Final Order: 20/08/2015

Smt. Chandana Sarkar

W/O- Late Santosh Kumar Sarkar

Vill.-Kanaiganj, P.O.- Debipur

P.S.- Jiaganj. Dist- Murshidabad

PIN. 742123……………………………….. ………………………………   Complainant                                                                       

                       Vs

1. The Zonal Manager,

Life Insurance Corporation of India,

 Eastern Zonal Office, Hindustan Building.

4, C.R. Avenue, Kolkata- 700072.

2. Senior Divisional Manager.

Kolkata Suburbun Divisional Office.

Jeeban Probha, D.D.-5, Sector-I,

Salt Lake City, Kol.-700064.………………………………………….   Opposite Party

Mr.Subhranshu Sinha., Ld. Advocate…………………………………………..for the Complainant.

Mr.Saugata Biswas, Ld. Advocate………………………………………………..for the Opposite Party.

                      Present:   Hon’ble President, Anupam Bhattacharyya.           

                                        Hon’ble Member, Samaresh Kumar Mitra.

FINAL ORDER

Samaresh Kumar Mitra, Member.

                The simple version of this complainant as enumerated in the complaint is that the Complainant is the nominee of the deceased Santosh Kumar Sarkar who had a policy being No.428578506 before the OP and the sum assured to the extent of Rs.1,80,000/-.The insured Santosh Kumar Sarkar died on 21.04.2012 at Jawaharlal Nehru Memorial Hospital, at Kalyani, Nadia. That after the death of insured his wife i.e. the Complainant filed a claim petition stating all the facts before the OP No.2 in the month of October,2012 but claim petition has been repudiated by the OPs on the plea that the questions as put forthwith by them has been falsely answered and it has been stated by them that the deceased has been suffering from hypertension for five years before his death and he was also known patient of ICHR Thalamus having been treated for acute hemorrhage in brain and that have not been stated in his proposal for assurance dt.5.01.2010. But the proposal of the insured has been duly accepted on proper scrutiny and premiums have been duly paid by the deceased. The complainant further submitted that the corporation has not been taken any other options but accepted the proposal and the repudiation of claim without complying the options is tantamount to deficiency of service for which they are compelled to compensate the claim of the nominee as prayed in the prayer portion of the complaint.

         The OPs appeared by its advocate and filed written version refuted the allegation as leveled by the complainant and averred that policy holder of policy being no.428578506 dt.28.12.2009 expired on 21.04.2012 i.e. merely 2years 3 months and 23 days after the purchase of the policy which amounts as early claim as per LICI norms. The complainant did not make party to Jiaganj from where the policy was purchased so the complaint suffers from non-joinder of necessary parties. It is also stated that the claim qualified as early claim and it was referred to the Divisional Office at Kolkata and during the claim review process it was found that the DLA was a patient of hypertension for five years before the death as per prescription of Bangur Institute of Neurology dated 19.01.2012. The insured was a patient of ICH(R) Thalamus having been treated for accurate haemorrhage in brain stem & Quadraponesis & Pseudobulbon Palsy in 2007 as per prescription of Dr. S.N. Banerjee. According to the version of the answering OP the life insured policy is a contract of utmost good faith between the two  parties the insurer on the one hand and proposer on the other hand in so far as acceptance of risk under life insurance policy in concern. The proposer should give such information as would help the insurer in accessing the risk involve in such case as elaborate proposal cum personal statements Form is required to be filled in by the proposer and the assessment of the risk thereafter is based on the information. It is proposer alone who is aware of the past & present history of the life to be assure and unless he answer the question in Proposal Form correctly the under writer who accept the risk on behalf of the insurer can’t properly accessed and under write the risk since all persons are not in equally good health based on the assessment of risk, certain life are accepted at the published rates of premium while after the charged with extra and in some cases the proposal are declined. In a few questions in the proposal Form the DLA had answered negative, thus misleading the corporation and suppressing the material facts regarding his health. The answering OP further submitted that the DLA did not disclose full facts relating to his life and thus the DLA violated the principal of utmost Good Faith. So the OPs justifiably repudiated the claim of the policyholder on the ground of suppression of material facts and conveyed to the nominee on 20.03.2013.

       The complainant filed evidence on affidavit on 04.06.2015 in which she stated that she is the nominee of a LIC Policy being no.428578506 dated 28.12.2009 in the name of her deceased husband namely Santosh Kumar Sarkar, sum assured Rs.1,80,000/ and after the death of her husband on 21.04.2012, she filed a claim petition before OP No.2 in the month of October,2012 and her claim was repudiated by the OPs on the plea that the question as put forth by them has been falsely answered and it has been stated that her husband has been suffering from hypertension for five years before his death and he was also a known patient of ICHR Thalamus having been treated for acute hemorrhage in brain and others that have not been stated in his proposal for assurance dt.5.01.2010. The proposal submitted by her husband has been duly accepted on proper scrutiny and the premiums have been duly paid her husband. As the OPs failed to comply with the provisions as enunciated in the statute of LICI as this noncompliance tantamount to deficiency of service on the part of the OPs for which they are liable to compensate.

         The OP filed evidence on affidavit on 06.07.2015 in which they assailed that the complaint is mis-joinder and non-joinder of necessary parties and the DLA was the patient of hypertension for last 5 years before his death who died on 21.4.2012 and he was also a patient of ICHR Thalamus having been treated for acute hemorrhage in brain stem, Quadiponesis and Pseudobulbon Palsy in2007 as per prescription of Dr.S.N.Banerjee. The DLA also answered the questions of the questionary in the Proposal Form in the negative on 05.01.2010 as such he misled this corporation and suppressed the material facts regarding his health and fraudulently obtained the policy so the OPs rightly repudiated the claim of the complainant.   

                Argument as advanced by the agents of the parties on 29.07.2015  heard in full.

                From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

1. Whether the Complainant Smt. Chandana Sarkar is a   ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the    Complainant?
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

   In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Smt. Chandana Sarkar  ‘Consumer’ of the opposite party?

                    From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainant herein being the consumer of the OP, as her husband was a policy holder of the OP company and she is the beneficiary.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

                Both the complainant and opposite parties are residents/carrying on business within the district of Murshidabad. The complaint valued Rs.1,80,000/- for loss sustained by the complainant and Rs.60,000/-as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.             

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

           It is well settled proposition of law that a contract of insurance is based on the principles of utmost good faith-uberrimae fidei, applicable to both the parties. The rule of nondisclosure of material facts vitiating a policy still holds the field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts; the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which is within his/her personal knowledge or which he ought to have known had he made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non disclosure of material facts.

          The expression “material fact” is not defined in the Insurance Act,1938 and therefore, as observed by the Supreme Court in Satwant Kaur Sandhu -vs- New India Assurance Company Ltd. 2013 (3) CPR 644 (SC),it has to be understood in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact, which goes to the root of the contract of insurance and has a bearing on the risk involved, would be “material” and if the proposer has knowledge of such fact, he is obliged to disclose it, particularly while answering questions in the proposal form. Any inaccurate answer will entitle the insurer to repudiate their liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance.   

         The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people throughout the nation since a long back with self generated assets i.e. goodwill of the business. The credibility of the OP Insurance Company is unquestionable and that is why the husband of the complainant insured his life before the said company without any doubt. Dispute cropped up in between the parties when the complainant did not get the claim amount after the expiry of her husband as the OP repudiated the claim of the complainant on the ground of suppression of material facts during the filing of proposal Form.

        In order to bring the present case within the purview of fraud, misrepresentation or concealment of material fact, it was necessary on the part of the OP to establish that the insured at the time of obtaining insurance was aware of his medical condition and he had intentionally concealed the same.

      The Insurance Company in the Written Version refuted allegations of deficiency in service and averred that in the prescriptions of different physicians of the complainant it has been mentioned that he was suffering from hypertension for four years and heart disease was result of that disease of Hypertension. This fact was not mentioned by the complainant in the proposal form, therefore the claim was not paid.      

      Ld. Counsel for the Insurance Company has placed very much  reliance upon entries in prescription of Dr. S. N. Banerjee dated 19.3.2012, it is stated that old case of ICH(R) Thalamus & Acute haemorrhage in brain stem & Quadraponesis &Pseudobulbon Palsy, H/O- fall in ditch 1 yr. back, C/O- Chest pain radiating to R shoulder & arm. The prescription of Bangur Institute of Neurosciences,Kol.-25 stated that the patient is suffering from hypertension for 5 yrs ( On Medication Homeopathic) dated 9.4.2012. Another prescription of Dr. Mrinal Kanti Roy ( Neurologist ) dated 7.4.2012 stated that  it is a case of Brain Stem Haemorrhage 5 yrs back and referred to Bangur Institute of Neurosciences, kol.-25. He also put emphasis on section 45 of the Insurance Act, to the extent it is relevant for our purpose provides that no policy of life Insurance shall, after expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance in any document leading to the issue of the policy was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy holder who knew, at the time of making it, that the said statement was false or that it suppressed facts which it was material to disclose.

          The death certification of DLA issued by JNM Hospital, Kalyani, Nadia it is stated that the patient was admitted on 21.04.2012 and expired on 21.04.2012 at 8p.m. due to Cerebro Vascular Accident (CVA).

       The pointed Enquiry dated 24.12.2012 by Sasanka Ghorui, BM of LICI, Jiaganj Br. speaks as follows: that the DLA suffered head injury because of sudden fall on the ground may be somewhere within 1 to 1 ½ year back (exact time not known) at Kalyani not exactly known to family members at Jiaganj. DLA also did not feel that much uneasiness as necessitated from brain hemorrhage that also did not deter him from continuing duties at Kalyani as a result he did not availed any leave on medical ground for the treatment of head injury. DLA then consulted Dr. S. N. Banerjee on 19.3.2012, his prescription is attached herewith. It is revealed from the prescription that the DLA was suffered from hemorrhage in brain stem following fall ina ditch 1 yr. back. DLA then consulted Dr. Mrinal Kanti Roy on 7.04.2012 who has written ‘5 yr’ back haemorrhage upon contact to Mr. Mrinal Kanti Roy on his cell Phone, Dr. Roy did not recollect the exact wordings he has written as the patient was treated at his chamber at Life Line Medical centre, Kalyani. He also revealed that the death may not be the case of stem haemorrhage. Under such circumstances he/ B.M. Jiaganj Br. do not find anything adverse regarding the bonafide of the claim.

        The enquiry details in the specific format by two persons in the form of questions and answer stated as follows:

       Q.2. (A).Are you satisfied with the identity of the DLA ?       Ans.- Yes.  

                (B).Mention any critical information related to health & habits of the DLA gathered during the enquiries.    Ans.-   No Such Information.

      Q.3   If the place of death of the LA is other than his/her normal place of residence, then mention the reasons thereof

                Ans:       L.A. died at J.N.M Hospital, Kalyani.

Q.4         Do you feel that the authenticity of the death certificate need further verification?

                Ans:       No.

Q.5         Is there any evidence of understatement of age of the DLA, particularly if the policy has been accepted on the basis of NSAP at proposal stage? If so, enclose the evidence.

                Ans:       No.

Q.6         What was the exact occupation of the DLA at the time of his/her death? Was it different from the answer given in the proposal form? Yes/No.

                Ans:       Constable in WBNVF, Directorate, Kalyani.

Q.7         What was DLA’s monthly income? Was it affordable and adequate to the total amount of premiums payable under all the insurance policies on his/her life ? (If the income mentioned in the proposal form is overstated, then efforts should be made to obtain evidence to establish his/her correct income by way of ITRs/salary slip/business.

                Ans:       Approx. Rs. 22000/- per month.

Q.8         (a) If  the DLA was employed, obtain particulars of leave availed by him on sickness/medical ground during last three years prior to date of proposal/revival. Also, obtain certified copies of the leave applications along with enclosed medical certificate. If the treatment particulars/medical history reported is significant, efforts should be made to obtain further details from the Doctors issuing the certificates.

                Ans:       No sick leave in last 3 yrs prior to date of proposal.

                (b) Ascertain from the Employer if there is any indoor medical/health facilities being provided/run by the Employer. Also enquire of any scheme of reimbursement for medical expenses is available for the employees. Certified copies of relevant documents giving information about medical treatment/sickness of the DLA prior to the proposal /revival date of the policy should be obtained.

                Ans:       No,

Q.9         If the DLA was a businessman/professional/self employed, please ascertain:

                (i)            How long was he in the business/profession?

                (ii)           Nature and address of his business:

                (iii)          Was there any recent change of business? If yes, the reasons thereof.

                (iv)         Enquire from neighbouring businessmen about his health/habits/financial status of his business etc and report. 

                Ans:       Documents attached.

Q.10.     Was the DLA a member of any Health Insurance Scheme/Mediclaim? If so, the particulars of benefits availed by him under the scheme should be obtained from the Insurers.

                Ans:       No.

Q.11.     If the cause of death is accident: State the nature and circumstances of the accident with full particulars. also inform the details of subsequent treatment given, name of police station involved, particulars of FIR/Panchanama/PMR etc.

Suicide/Murder: Is there any suspicion of suicide? If so, state the possible reasons and circumstances hereof. In case of a murder, give briefly the circumstances under which the LA was murdered, whether any criminal was arrested and prosecute? Was the deceased L.A with a criminal background? Under such cases please obtain certified copies of FIR, Police Inquest Report, Panchanama, PMR etc.

                Ans:       Not applicable.

Q.12.     Ascertain the name of DLA’s usual medical attendant and enquire of him whether he had occasion to treat the LA for any illnesses/diseases. If the period of treatment is prior to the date of proposal/revival, obtain necessary certificate given particulars of diagnosis, exact period of treatment and the details of treatment given including prescription of medicines , tests etc. (Please get the COT completed from the Doctor). Efforts should be made to obtain the names of other doctors/hospitals also to whom the DLA might have referred to for constitution/treatment/special tests.

                Ans: No such ………….  Medical attendant.

Q.13       Enquire of, other doctors/hospitals in the vicinity of the residential/business place of the DLA to find out the possibility of any treatment/special tests undergone by the DLA, particularly prior to the date of proposal/revival. Report the result of your findings enclosing certified copies of the case sheets/discharge summary/BITT/pathological reports etc. in the following format.

Q.14       Was the DLA related to the Agent/D.O/M.E        : No.

Q.15       On the basis of the enquiries made and the information obtained, do you w ant to add any other information which is not covered in the questionnaire and will be helpful to take a decision on the claim?

                Ans: On the basis of the enquiries made & the information obtained I do not find anything adverse regarding the bonafide of the claim.

Name of the Investigating Officer :      SASANKA GHORUI

Designation and present posting:   B.M. Jiaganj Branch. 31.10.2012.

    So after perusing the report of investigating Officer i.e. the Branch Manager of Jiaganj Branch we can come into this conclusion that the claim of the complainant is bonafide one.

           Suppression of material facts presupposes knowledge. The OP have not placed any evidence or record by which it can be inferred that insured was having knowledge of pre-existing diseases before filing proposal from. He rightly expressed his state of health as good.

         There is not even an iota of evidence which may go to show that the complainant suffered from this ailments prior to28.12.2009.

      We do not find suppression of any material fact by the insured in the proposal form and OP have committed deficiency in repudiating claim on flimsy grounds.

     Had he been suffering from hypertension or brain stem hemorrhage or CVA since 4 to 5 years he would have taken treatment when he was having income of Rs.22,000/- p.m. No one would like to remain without treatment when he has sufficient funds to take treatment.

           The minute observation of the prescriptions shows that ‘Hypertension for 5 years’, CVA for 4 yrs, have been mentioned, but so far as the history of cardiac problem is concerned, it was only of a few hours chest pain. Hypertension is such a condition from which many persons may be suffering even silently or unknowingly without any cause, even without any harm. Merely because one is having Hypertension, may be without his knowledge, it cannot be said that ultimately he will become heart patient. There is no material in the record to show that in any proposal form, it was concealed or mentioned by the DLA that he was suffering from Hypertension. There is no material to show that there was any earlier treatment in respect of any Hypertension disease or any cardiac problem. In absence of any treatment paper, no court/Forum can hold that there was some earlier pre-existing disease which was concealed by the complainant while making proposal for the insurance cover. Thus the defense which has taken by the OP Company was having no legs to stand so it is rightly discarded by this Forum. 

               It was pleaded that if an insured is not aware of an ailment he may be suffering, nondisclosure thereof does not tantamount to suppression of material fact.

             No documents in respect of treatment of the husband of the complainant before the acceptance of Proposal Forum is in the C.R. The OP failed to produce such document to deny the claim of the complaint that during the acceptance of proposal Form DLA supplied the correct information regarding his health.

         Usually the authorised doctor of the Insurance Company examines the insured assesses the fitness and after complete satisfaction, then only the policy will be issued. In the instant case the medical examiner Dr. Sree kumar Saha made a confidential report in the specific format of OP Company in respect to the health of the LA. In which he stated that BP of the LA is 80/130, Pulse rate 72 and the question No.5, the questions are, whether at any time in the past he/she was hospitalized, was operated, met with accident, has undergone any bio-chemical, radiological, cardio-logical or other tests, is currently under any treatment in these questions the answer was written as ‘No’. And a lot of questions regarding the present and past history of the health were answered. Finally in the column No.15, On Examination whether he/she appears mentally and physically healthy ?  the examiner remarked yes and put his signature on 5^th Jan.,2010 at 7.30 a.m. in which the LA also signed. It appears from the confidential report of the examiner of LICI that the LA i.e. Santosh Kumar Sarkar was examined and declared that he was mentally and physically healthy. So the LA was unaware of his disease whether he was suffering from hypertension and his illness at the material point of time i.e. taking the insurance policy does not arise. He was not aware whether he will suffer from heart Attack in the future and his nominee have to make claim before the Insurance Company for which the Insurance Company by repudiating her/complainants claim destructed the myth of utmost on good faith.

               Upon consideration of the evidence adduced by the parties, this Forum observed that the Insurance Company had failed to bring on record any proof in support of their plea that the deceased was suffering from any pre-existing disease at the time of obtaining the policy; there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease at the time of obtaining the policy; there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease and that the medical evidence relied upon by the Insurance Company was neither supported by any corroborative evidence not did it prove that the said treatment had any nexus with the cause of CVA .This Forum thus came to the conclusion that there was no suppression of any material fact by the DLA and therefore, in not settling the claim of the complainant, there was deficiency of service on the part of the Insurance Company, causing great hardship, financial loss and mental agony to the complainant.

                We also carefully went through the judgment citation submitted before us by OP No.1, i.e. i). Life Insurance Corporation Of India –V/S- MU Jakia IV (2013) CPJ 129 ( NC) ii). SHNYNI VALSAN POMBALLY-v/s- State Bank of India & Anr., I (2014) CPJ 387 ( NC) iii). Ritaben G. Modi & Anr. -V/S- LIC of India & Anr. I (2013) CPJ 10B ( NC) iv). Life Insurance Corporation of India –V/S- Neelam Sharma IV (2014) CPJ 658 ( NC).

                So we are in a considered opinion to allow the complaint as DLA was not suffering from any disease when he signed the policy proposal of this OP Insurance Company and OP could not prove the same. We direct the OP Insurance Company to pay the sum assured Rs.1,80,000/- + Vested Bonus along with interest since the filing the complaint @ 9% p.a. till the realization.           

4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

                    The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant is able to prove her case and the Opposite Party is liable to pay the ordered amount. 

ORDER

                    Hence, it is ordered that the complaint be and the same is allowed on contest against the Opposite party with a litigation cost of Rs.5,000/-.

                  The whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint and Opposite Party No.1 &2 are directed to pay jointly and/ or severally the sum assured Rs.1,80,000/- + Vested Bonus in favour of the complainant along with the interest  from the date of filing the complaint i.e.24.02.2014 @ 9% p.a. till its realization.

                No other reliefs are awarded to the complainant for harassment and mental agony.

                At the event of failure to comply with the order  the Opposite Party  shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.

  Dictated and corrected by me.

       Member,                                                                                                  President, 

    District Consumer Disputes                                                            District Consumer Disputes                                        

 Redressal Forum, Murshidabad.                                                    Redressal Forum, Murshidabad.