Punjab

StateCommission

A/11/917

Kotak Mahindra - Complainant(s)

Versus

Veena Rani - Opp.Party(s)

K.S Cheema

15 May 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.917 of 2011

 

                                                          Date of Institution:10.06.2011  

                                                          Date of Decision : 15.05.2015

 

1.       Kotak Mahindra Old Mutual Life Insurance Limited, previously    located at 9th Floor, Goderj Coliseum, Everard Nagar, Sion East, Mumbai 22.

 

New Address :

 

          Kotak Mahindra Old Mutual Life Insurance Limited, 7th Floor, Kotak     Infiniti Bldg. No.21, Infiniti Park, Off. W.E Highway, General A.K.          Vaidya Marg, Malad (E) Mumbai 400 097.

 

2.       Kotak Mahindra Old Mutual Life Insurance Limited, Branch 1st   Floor, Plot No.17/339, Dabawali Road, Sirsa , through Branch         Manager.

 

3.       Kotak Mahindra Old Mutual Life Insurance Limited, Branch Office,       The Mall, Bathinda, through Branch Manager.

                                                                                                                                                           …..Appellant/Opposite parties

         

                                      Versus

 

Mrs. Veena Rani, Wd/o Sh.Girdharilal Arora Near Pingal Wada, Budhaida, District Mansa, Now resident of Bhagat Singh  Market, Near New Bus Stand  Bathinda.

                                                          …..Respondent /Complainant

         

First Appeal against order dated 25.03.2011 passed by the District Consumer Disputes Redressal Forum, Mansa

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Vinod Kumar Gupta, Member

          Shri Harcharan Singh Guram, Member

Present:-

 

          For the appellants            :         Sh.Mrigank Sharma, Advocate

          For the respondent          :         Sh.Sandeep Kumar, Advocate

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants (the opposite parties in the complaint) have directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging order dated 25.03.2011 of District Consumer Disputes Redressal Forum Mansa, accepting the complaint of the complainant by directing the OPs to pay the claim amount of Rs.1,50,000/- along with interest @ 9% per annum with effect from 12.10.2009 till payment, besides compensation of Rs.5000/- for mental harassment and Rs.5000/- as costs of the litigation to the complainant. The instant appeal has been preferred against the same by the OPs now appellants.  

2.      The complainant Mrs.Veena Rani has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that Sh. Girdhari Lal Arora, since deceased her husband, had taken the insurance policy from the OPs for assured amount of Rs.1,50,000/- and he paid premium of Rs.7500/- per month, as premium amount, which would be invested by the OPs in different plans and growth benefits. Being allured by the agent of the OPs, life assured Sh. Girdhari Lal Arora gave his consent for the purchase of the policy and his signatures were taken on blank printed performa on the pretext that they would be filled later on under the supervision of his Sales Manager. The insured had disclosed the facts at the time of signing the proposal form to the agent of the OPs. No terms and conditions were disclosed to him. Sh. Girdhari Lal Arora paid first premium on 18.03.2008 and second installment was paid by the insured on 13.10.2008. He expired on 13.03.2009. The complainant being his widow lodged the insurance claim with the OPs. OPs repudiated the insurance claim of the complainant, vide letter dated 12.10.2009 on account of concealment of material facts of pre-existing disease by life assured Sh. Girdhari Lal Arora, when he took the insurance policy. The complainant has, thus, filed the complaint directing the OPs to pay the claim amount of Rs.1,50,000/- along with interest @ 18% p.a and Rs.1,50,000/- as compensation for mental harassment and agony and Rs.5,000/- as costs of litigation.

3.      Upon notice, OPs appeared and filed written reply raising preliminary objections that the life assured Sh. Girdhari Lal Arora obtained the contract of insurance by suppressing the material information with regard to his pre-existing diseases. Life assured Sh. Girdhari Lal Arora had not disclosed in the proposal form regarding the fact of his pre-existing disease. The complaint was resisted by the OPs even on merits. This fact was admitted that Sh. GirdharI Lal Arora was assured by the OPs and policy no.952006 was issued in this regard. It was denied by the OPs that any medical test of Sh. Girdhari Lal Arora was conducted at the time of insuring him. It was further pleaded that life assured fully knew about his state of health and treatment as undergone by him and he gave false answer in column no.8 and 10 of proposal form with regard to his state of health. The questionnaire was supplied to Sh. Girdhari Lal Arora to be filed by him and he answered them in negative despite the fact that he had already suffered from pre-existing disease of diabetes mellitus,  old cardiac arrest, alcoholic liver diseases with pulmonary hypertension with Acute Renal Failure. Lama Summary issued by Dayanand Medical College & Hospital Ludhiana proved that he suffered from the pre-existing diseased, as referred to above. He was suffering from chronic liver disease and  malena (blood in stool) due to internal bleeding since 2004. A esophageal banding surgery was also carried out on him to prevent the bleeding recurrence in 2008, which proved the fact that malena was due to an earlier incidence of esophageal varices.  The life assured underwent a surgery for bladder stone 15 years old and one his kidney was non-functional. The report of the investigator was obtained by the OPs in this regard. The contract of insurance is based on the utmost good faith and life assured by concealing the material information regarding his pre-existing diseases rendered the contract of insurance invalid and Ops prayed for dismissal of the present complaint.

4.      The complainant tendered in evidence the affidavit of complainant Ex.C-1, copy of death certificate Ex.C-2, copy of judgment DCF Bathinda Ex.C-3, copy of repudiation letter dated 12.10.2009 Ex.C-4, copy of letter dated 16.10.2009 Ex.C-5, affidavit of Sh. Vijay Kumar Ex.C-6, copy of voter card of Vijay Kumar Ex.C-7, affidavit of Veena Rani Ex.C-8. As against it, OPs tendered in evidence copy of proposal form benefit illustration Ex.OP-1, copy of policy document Ex.OP-2, copy of claim intimation Ex.OP-3, copy of letter dated 22.4.09 along with reminder Ex.OP-4, copy of investigation report Ex.OP-5, copy of claim repudiation letter dated 12.10.2009 Ex.OP-6, affidavit of Sh. Jai Kumar, Chief Manager Legal of OPs. On conclusion of evidence and arguments, the District Forum, Mansa,  accepted the complaint of the complainant  and directed the OPs to pay the insured amount of Rs.1,50,000/- to complainant with interest @ 9% p.a with effect from 12.10.2009 till actual payment, besides compensation of Rs.5,000/- for mental harassment and Rs.5000/- for costs of litigation. Dissatisfied with the order dated 25.03.2011 of the District Forum Mansa,  the OPs now appellants have preferred this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case. We concentrate on this controversy in this case as to whether life assured was suffering from any pre-existing diseases and he was in knowledge of the same and he deliberately concealed this material information from the OPs, when he filled the proposal form and entered into the Contract of Insurance with the OPs. This controversy can be unraveled on basis of the evidence on the record. The counsel for complainant has denied the fact of any pre-existing diseases of Sh. Girdhari Lal Arora in this case. The affidavit of Mrs. Veena Rani Ex.C-1 is on the record in this regard. She has deposed in this affidavit that medical tests were duly conducted on life assured Sh. Girdhari Lal Arora  and nothing abnormal was detected in his health and insurance policy no.952006 dated 20.03.2008 with commencement dated 20.03.2008 was issued by  OPs on that basis. She further stated in this affidavit that her husband was made to sign the blank printed forms and no terms and conditions were disclosed to him by the OPs or their agents nor copy of the terms and conditions of the policy were ever supplied to Sh. Girdhari Lal Arora/life assured by the OPs. She further stated that firs installment of premium was deposited by him on 18.03.2008 and second on 13.10.2008. She further stated that after receipt of the information regarding death of insured, OPs obtained certain printed documents and were got signed by the complainant on the pretext of settling the claim of the complainant. She further stated in this affidavit that she has nowhere sworn any such previous affidavit making admission in favour fo the OPs. She further stated that her husband has been wrongly diagnosed to be a patient of chronic liver disease by the investigation report of the OPs, as procured by them to save their interest. She further stated that OPs might have misused her signatures obtained on the printed blank forms/stamp papers later on in the shape of some affidavit. There is a clear cut averments by her that her signatures were taken on the blank documents by the OPs and they might have converted them into some other documents by them. Sh. Girdhari Lal Arora expired on 13.03.2009, vide death certificate Ex.C-2 on the record. Ex.C-4 is letter of the OPs addressed to the complainant regarding the repudiation of the insurance claim. Ex.C-5 is letter addressed to the complainant regarding refund value thereof only to the complainant. Affidavit of Vijay Kumar is ExC-6 on the record. He further stated that the investigator gave his reference in his report, but he swore this affidavit in his pleading that he has not made any such statement before the investigator. Sh. Vijay Kumar has denied his presence or having been made any such statement before investigator in his affidavit Ex.C-6. Ex.C-7 is voter card of Vijay Kumar. There is another affidavit of Veena Rani Complainant dated 17.03.2011 on the record that alleged affidavit under purported to be her name by the OPs is self-document of the OP/company.

6.      OPs relied upon proposal form Ex.OP-1 of Sh. Girdhari Lal Arora, wherein he has not disclosed the fact of suffering from any pre-existing diseases of liver cirrhosis and diabetes mellitus so on. Ex.OP-2 is First Premium Receipt, it also contains the policy document in this case. Ex.OP-3 is letter from Veena Rani complainant to Branch Manager, Kotak Life Insurance  giving intimation regarding death of Sh. Girdhari Lal Arora on 13.3.2009. Ex.OP-4 is letter directing the complainant  to produce the documents for deciding the insurance claim. Ex.OP-5 is the Photostat copy of investigation report of Metro-Consultant on the record relied upon by the OPs in this case.

7.      The sheet-anchor of the case of the OPs is photocopy of  investigation report Ex.OP-5 on the record. There is affidavit Ex.OP-7 of Sh. Jaikumar . Chief Manager, Legal of Ops on the record.

8.      From appraisal of the above-referred evidence on the record, we find that Sh. Jaikumar swore in his affidavit Ex.OP-7 that he has no personal knowledge about any previous ailment of life assured Sh. Girdhari Lal Aroa. He gave the anecdotal evidence only. The evidence given by him is not from his own knowledge. The investigation report  of Vijay Kumar witness is only photostat copy of the report, but original investigator's report is not on the record. The primary evidence is original investigator report, which has been withheld by the OPs in this case. Photocopy is only the secondary evidence and secondary evidence cannot be looked into unless ground is made out therefor in the place of the primary evidence. Original report of the investigator is not on the record nor investigatory has been examined before District Forum by the OPs to substantiate it. The Lama Summary of the DMC Ludhiana has not been tendered in evidence nor any doctor of the DMC has been examined to prove that it was issued by the doctor of the DMC. We are unable to place any reliance on the un-exhibited document, which has not been made a part of the evidence on the record by the parties.  Consequently, the report of the investigator is not of much consequence, being photocopy of the report and investigator having not been examined before District Forum to prove it. Lama Summary remained unproved on the record as issued by DMC Ludhiana regarding any previous ailment of the life assured Sh.Girdhari Lal Arora as it has not been exhibited in evidence to make it legally admissible evidence. Consequently, District Forum has rightly reached the conclusion in this case that the Lama Summary remained unproved, alleged to have been issued by Dayanad Medical College and Hospital Ludhiana of Sh. Girdhari Lal Arora as prepared by Dr. S.S. Sidhu of DMC Ludhiana. The District Forum relied upon law of the Apex Court in "Malay Kumar Ganguly Vs.. Dr. Sukumar Mukherjee and others, 2009(V) RCR Criminal Page 1, wherein Apex Court held that document becomes inadmissible unless, it is legally proved. The Lama Summary has not been made admissible evidence on the record by the OPs, so as to be read by this Commission. The mere affidavit of Sh. Jaikumar Ex.OP-7, who has also not been examined as witness would not be of much consequence in as much as he has no personal knowledge regarding any pre-existing ailment of Sh. Girdhari Lal Arora, the life assured.  Sh. Vijay Kumar swore affidavit that OPs got her signatures on the blank document, which was stamped document on the pretext of settling of her claim. She is widow lady and undue influence could have been easily exercised on her after death of her husband by the OPs on the pretext of settling her claim. She has sworn in her affidavit this fact that the OPs thereafter made the self-made affidavit on their own to serve their own interest. She dissociated herself from this affidavit, wherein this admission has been made by her about pre-existing disease ailment of her husband. We find that why complainant made the admission against her own interest and it remained unexplained. The contention of the complainant as stated in her affidavit finds grain of truth that her signatures were obtained on the blank stamped paper on the pretext of the settling of the claim after death of her husband, when she was in the state of mourning.

9.      We have, thus, come to this conclusion that Lama Summary report remained unproved on the record proving any previous ailment of the Liver Cirrhosis in the deceased Sh. Girdhari Lal, when he took insurance policy. Similarly, the alleged disorder of non-functional kidney of life assured remained unproved by the OPs on the record along with bleeding in the stools and any such surgery of life assured. We are bound by evidence strictly and cannot decide the cases in the absence of any evidence on the record.

10.    In the light of our above discussion, we have come to this conclusion that order of the District Forum under challenge in this case suffers from no illegality or any material irregularity calling for any inference therein. The order of the District Forum under challenge in this case is hereby affirmed and resultantly the appeal filed by the appellant is ordered to be dismissed.

11.    The appellant had deposited an amount of Rs.25,000/- at the time of filing the appeal, vide dated 10.06.2011 and Rs.77,625/-,vide dated 02.08.2011. This amount with interest, if any, accrued thereon be refunded by the registry to the complainant by way of crossed cheque/demand draft after  45 days from receipt of copy of this order. Remaining amount as per order of the District Forum shall be paid by the appellants/OPs to the complainant with 45 days from receipt of copy of this order.

12.     Arguments in this appeal were heard on 05.05.2015 and the order was reserved. Now the order be communicated to the parties.

13.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

                                                             (VINOD KUMAR GUPTA)

                                                                       MEMBER

                       

                                                           (HARCHARAN SINGH GURAM)

                                                                          MEMBER

 

May 15,  2015.                                                               

(ravi)