Delhi

StateCommission

C-93/2003

CAPT. ANIL KUMAR DEWAN - Complainant(s)

Versus

UNITED INDIA INSURANCE CO.LTD. THROUGH ITS CHAIRMAN - Opp.Party(s)

26 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

 (Constituted under Section 9 of the Consumer Protection Act, 1986)

 

                                                                                 Date of Decision:   26.04.2016

                                                                                           

Complaint Case No.93/2003

 

Capt. Anil Kumar Dewan R/o 1171, Sector A, Pocket B Vasant Kunj, New Delhi- 110070
……COMPLAINAT
Vs.
United India insurance Co. Ltd. Through the Chairman 24, Whites Road, Chennai-600 014   United India insurance Co. Ltd. Through the Divisional Manager Divisional Office No. 18, A-11, Sector 19, Noida 201301 (UP)   United India Insurance Co. Ltd. Through the Reional Manager, Regional Office-2 Kailash Building, 5th Floor 26, Kasturba Gandhi Marg, New Delhi-110 001                                                                        .…..Opposite Parties
CORAM   N P Kaushik       -      Member (Judicial)   1.       Whether reporters of local newspaper be allowed to see the judgment?  Yes 2.       To be referred to the reporter or not?                                                  Yes

N P Kaushik Member (Judicial)

 

1.       Facts of the complaint are that the complainant, Captain Anil Kumar Diwan, a pilot employed in Indian airlines Ltd. was granted an Airline Transport Pilot’s Licence (Aeroplanes) bearing No. ALTP-989 under Rule 38 of Aircraft rules, 1937 by director General of Civil Aviation, New Delhi.
2.       Complainant took a Loss of Licence Insurance Policy dated 20.2.2000 issued by United India Insurance Co. Ltd., through its divisional Office No. 18, A-11 Sector-19, Noida (U.P.) (in short ‘OP No. 2’). Policy was valid for the period from 22.2.2000 to 21.2.2001. Total sum assured under the Policy was Rs.27 lakhs. Contention of the complainant is that the OP No. 2 was obliged to compensate the complainant for a sum of Rs.27 lakhs in the event of loss of his licence on being declared unfit for flying on medical grounds. Complainant was declared permanently medically unfit for flying any aircraft by Director General Civil Aviation on 15.11.2000. Complainant preferred his claim to OP-2 who repudiated the same on the grounds that there was misrepresentation of facts in the proposal form. OP-2 referred to Question No. 8 of the proposal form which read as follows:-

      “Give full details of previous suspensions cancellations of licence. If none, write ‘None’ ‘.

3.       OP-2 stated that the complainant in response to the said question No. 8 gave his answer as ‘None’. For these reasons complainant was held not entitled for payment under the policy. Complainant submitted that he was on leave during the period from 14.8.99 to 31.8.99 and his licence was not suspended during the said period.
4.       Next submission of the complainant is that the OP-2 repudiated his claim on another ground that he had already taken another insurance policy and he stood duly compensated by the said insurance. OP was not required to further compensate him. Complainant contended that the said compensation was given to him by his employer from his own funds.
5.       OPs filed a joint written version (all the three OPs are the offices of United India insurance Company only). OPs submitted that complainant suppressed/misrepresented the fact of suspension of his licence for three weeks in August, 1999 for medical investigations which according to the complainant himself was due to tension and fatigue. Complainant did not disclose the fact that his licence was suspended for three weeks in August 1999 for investigation of hypertension which amounted to suppression/misrepresentation, making the insurance policy null and void. OPs referred to clause 6 of the policy which reads as under:-

      ‘ Any fraud misstatement or concealment in the proposal or application declaration or in any statement given in connection with the proposal of application or in making of any claim hereunder shall render this insurance null and void and all claims hereunder shall be forfeited’

6.       In relation to their second objection, OPs submitted that the complainant admittedly received an amount of Rs.30,00,000/- (Rs. Thirty Lacs Only) as compensation for the loss of licence of Indian Airlines from Oriental Insurance Co. The terms and conditions of the Oriental Insurance Co. were exactly the same as in the case of the OP Insurance company. OPs referred to clause 11 of the policy which reads as under :-

      ‘No liability shall be attached to the company hereunder in respect of any claim if the person insured is also entitled to compensation under any other Policy of insurance. Insuring the person insured against the risk hereby insured (other than any Personal Accident Insurance effected by the Person Insured’s employers) unless written notice of the existence of that other policy shall have been given to the Company and accepted by endorsement herein.’

7.       During the course of arguments, Ld. Counsel for the OPs argued that there has been non-disclosure of the material facts. The proposal form was the first step of entering into insurance. Through this, the insured furnishes to an insurer all the particulars of risk which he wishes to cover. The insured must not only state fully what he is asked to answer but also must state all that is material to the risk. Ld. Counsel further argued that the duty of disclosure is, therefore, cast upon the assured so as to let the insurer  know if the risk is to be undertaken or not. Any suppression/misrepresentation in the proposal form makes the insurance policy null and void.
8.       Stand taken by the complainant is that the period of three weeks in the month of August, 1999 was a period of privileged leave and cannot be labelled as ‘suspension of licence’.
9.       I have heard the arguments addressed by the Ld. Counsel for the Complainant, Sh. Harpreet Singh Bawa and the Ld. Counsel for the OP Sh. A.K. Dey. Before proceeding further, it may be mentioned here that the letter of repudiation dated 12.6.02 refers only to the objection relating to the alleged concealment of the factum of suspension of licence for three weeks in August, 1999. It does not refer to the objection relating to the  receipt of amount of Rs.30,00,000/- by the complainant on account of loss of his licence from Indian Airlines/Oriental Insurance Co.
10.           The sole controversy that arises in the present case is whether the said period of three weeks in August, 99 when complainant was directed not to fly, amounted to suspension of licence or it was the period of leave simplicitor.
11.           In support of his claim complainant relied upon a certificate dated 27.1.01 issued by the Cardiologist, Dr. H.K. Aggarwal. Dr. Aggarwal certified that the complainant was admitted to the hospital on 15.9.2000 for angiography. He was not taking any medicines for any disease as per patient’s statement. Dr. Aggarwal further certified that only one reading of Blood Pressure was borderline and afterwards it was normal.  There was only doubt of inferior wall MI reflected in the discharge slip where a question mark was put. Nothing definite could be said about old inferior wall MI existence.
12.           Complainant also relied upon his certificate dated 4.9.02 issued by Captain N.V.S. Chandhoke,  General manager (Operations) of Indian Airlines Ltd. Capt. Chandhoke certified that the complainant was declared temporarily medically unfit on 13.8.99 by Airforce CME, New Delhi on account of elevated blood pressure and was advised to reduce weight along with getting the following tests done as per his CA 35 (revised) issued by Airforce CMME, Subroto Park, New Delhi:

1. 2 D Echo Color Doppler
2. USG Abdomen
3. 24 hrs Ambulatory BP Monitoring
4. Biochemical profile

13.           Captain Chandhoke in his certificate further stated that the complainant was asked to get the medical report from a physician or company doctor and was advised not to undertake flying duties till the next medical examination. It was further stated in the said certificate that during the period a pilot is declared temporarily medical unfit, the pilot cannot exercise the privileges of his licence and during the said period the licence is not suspended or cancelled on this account.  On the contrary, OPs have relied upon the proposal form furnished by the complainant at the time of inception of the policy. Question No.8 and reply thereto is the reason of repudiation of the claim. The same are reproduced below:

“8. Give full details of previous suspensions  

      Cancellations of Licence, if none, write                  -  None

      “None”

5.       It is the admitted case of the complainant that he was declared temporarily medical unfit on 13.8.99. He was not allowed to fly an aircraft during the period of three weeks following 13.8.99. Even if the words suspension or cancellation of the licence are not used, the attributes remain the same. In other words, during the said three weeks, the complainant in no circumstances could be allowed to fly an aircraft. He was asked to undergo 2 D Echo Color Doppler, USG Abdomen, 24 hrs Ambulatory BP Monitoring and Biochemical profile. As per certificate relied upon by the complainant (dated 27.1.01), there was a question mark (?) on old inferior wall MI existence.

14.           The real controversy that arises in the present case is whether there is a difference in the attributes of proposition of suspension of licence and proposition that a pilot cannot exercise the privilege of his licence. In both the cases, a pilot is not allowed to fly an aircraft. No material has been placed on record by the complainant to establish any difference between these two propositions. Both these phenomenon even if different are same in nature and the consequences remain the same.
15.           Complainant has failed to place on record any material to show that besides actual suspension of license there existed another type of suspension which is not visited by the same consequences. In any case, the distinction if any is only in the use of words and not in the substance.
16.           Complainant had filled up a proposal form knowing fully well that the policy was meant for cancelation of license on health grounds. In other words, it was not for cancellation of license due to punishment.  Policy lays down the terms and conditions keeping in view the physical and mental health of the insurer. Argument advanced by the Ld. Counsel for the Complainant that the word ‘suspension’ referred to in the question (reproduced above) relates to suspension on account of punishment, is devoid of merits. Policy has not even a remote relationship to the suspension of license due to punishment.
17.           Complainant was in possession of all the documents served upon him by his employer. He has not placed on record, the record of his health for the period of three weeks following 13.08.1999. Rule 42(4) of the Air Craft Rules 1937 refers to the inability to exercise the privilege of a licence. The said incapacity is declared when the physical condition of a pilot has deteriorated below the standard required for that category of license.
18.           Complainant was declared permanent medically unfit on 01.11.2000. In his letter dated 08.01.2001 written to the OP, complainant stated that he had 100% blockage in one artery and 40% in the other. It does not stand to reason that one year prior to 01.11.2000, complainant had a healthy heart without any blockage of the arteries. Be that as it may, complainant has failed to place on record his medical record for the said period.  

19.      Hon’ble Supreme Court in the case of United India Insurance Co. Ltd. v. M.K.J. corporation, III (1996)CPJ 8 (SC) observed as under:-

        “5.     It is a fundamental principle of Insurance Law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing (non-disclosure) what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, ‘similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured.

6. The duty of good faith is of a continuing nature. After the completion of the contract, no material alteration can be made in its terms except by mutual consent. The materiality of a fact is judged by the circumstances existing at the time when the contract is concluded.........’

20.    By suppressing the information of the suspension of his licence in September 1999, the complainant drew the respondent into the contract. He failed to observe ‘utmost good faith’.

21.   Coming to the allegation of the suppression of factum of subscribing to another insurance policy, last para of the letter dated 03.07.2001 written by the complainant to the OP is relevant. The same is reproduced below:

“The loss of licence compensation scheme of Indian Airlines was with Oriental and the terms and conditions exactly the same as with United India Insurance Co. As of now, terms and conditions remain the same but it has been made an in house scheme so that the Airline does not have to pay the premium to the Insurance Company. As per circular from Central Board of Direct Taxes the compensation for loss of licence is not taxable. Sir, had there been any lapse on my part on any suppression of facts, would they have paid me 30 Lacs?”

22.     Complainant has not made it clear as to on which date the policy issued by Oriental Insurance Company Ltd. was made an in-house scheme. It is for the complainant to prove that the said policy from Oriental Insurance Company Ltd. lost the character of the insurance policy at any stage. On the date of filling up the proposal form complainant ought have disclosed the factum of enjoying protection on loss of licence from Oriental Insurance Company Ltd. or any in-house policy. Clause 11 of the policy (reproduced above) called upon the complainant to disclose the protection already being enjoyed. Complainant again violated the principle of utmost good faith as referred to in the case of M.K.J. Corporation (Supra).

23.     In view of reasons given above, I am of the considered opinion that the complaint is devoid of merits. The same is hence dismissed.

24.     A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.

 

(N P Kaushik)

Member (Judicial)