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State Consumer Disputes Redressal Commission

Lata W/O.Shrimant Thathe vs 1.Life Insurance Corporation Of India, on 18 March, 2015

                                        1                              F.A. No. 48-12




                STATE CONSUMER DISPUTES REDRESSAL
                    COMMISSIONJ,MAHARASHTRA,
                       BENCH AT AURANGABAD.

                          First Appeal No. FA/48/2012
     (Arisen out of Order Dated 17.01.2012 in Case No. 585/2010 of District
                        Consumer Forum, Aurangabad)

1. Lata w/o.Shrimant Thathe
R/O.House No.5,Jai Bhavani Nagar,
Behind Tuljamata Mandir,
Near N-3,N-4,CIDCO,Aurangabad.                             ... Appellant

              Versus

1. Life Insurance Corporation of India
982 Branch Office, Aurangabad
"Jeevan Prakash" Adalat Road,
Aurangabad,through its, Branch Manager

2. Life Insurance Corporation of India
Divisional Office, Aurangabad,
"Jeevan Prakash" Adalat Road,
Aurangabad, Through its Divisional Manager,
Cantonment, Aurangabad.                                     ... Respondents

BEFORE:
            HON'ABLE MR. S.M.SHEMBOLE PRESIDING MEMBER

HON'ABLE MR. K.B.GAWALI MEMBER For the Appellant: S. T. Agrawal, Advocate For the Respondent: K. M. Bardapurkar, Advocate

- :: ORAL JUDGMENT :: -

(Delivered on 18th March, 2015) PER HON'ABLE MR. K.B.GAWALI MEMBER

1. This appeal is filed by the original complainant against the judgment and order dated 17.01.2012 passed by the District Forum Aurangabad in consumer complaint No.585/2010, whereby the complaint is dismissed. The respondents are the original complainants. For better understanding the appellant is hereinafter 2 F.A. No. 48-12 termed as the "complainant" and the respondents who are the representatives of the LIC of India are hereinafter jointly termed as "opponent insurance company".

2. The factual aspect of the case in a nutshell are that, the complainant's late husband namely Shrimant Tathe had obtained insurance policy by submitting proposal dated 11.04.2008. The commencement date of the policy was 21.04.2008 and the maturity date as of 21.04.2020. The sum insured was Rs.5,00,000/- and the yearly premium was Rs.3906/-. It was submitted that on 03.07.2009 deceased insured suddenly felt uneasy and breathlessness due to cough and therefore he was admitted at Dande Hospital, Auragabad, where he died on the same day due to respiratory failure. That, following his death the complainant submitted insurance claim proposal to the opponent insurance company on 20.09.2009 which came to be repudiated by its letter dated 27.03.2010. The grounds of repudiation given by the opponent insurance company were that the deceased has habit of gutkha chewing and suffering from cancer which was suppressed by the deceased insured at the time of filing of the insurance proposal form. Aggrieved by the said repudiation letter the complainant had approached to the zonal officer and also to the chairman of the opponent insurance company, but of no use. It was contended that on 02.05.2008 as the deceased insured has pains in the neck he was referred to the Seth Nandlal Dhoot Hospital, where for the first time by way of biopsy a cancer was detected.

Therefore she submitted that prior to that date i.e. on the date of filing of the insurance proposal the deceased insured had no knowledge about the said cancer and hence there was no any suppression of material fact. However, since the opponent insurance company did not respond to her representative she filed complaint before the District Forum seeking directions to the opponent insurance company to pay her an amount of Rs.5,00,000/- with interest @ 18% p.a. from 20.09.2009 till the date of realization and further Rs.50,000/- towards mental agony and for deficiency in service etc.

3. The opponent insurance company appeared before the Forum and resisted the claim of the complainant by way of its written version. It was contended that the deceased insured had suppressed the material fact of his habit of smoking and 3 F.A. No. 48-12 Gutkha chewing at the time of filing of insurance proposal on 11.04.2008. It was contended that on 02.05.2008 deceased Shrimant Bhanudas was referred to the Bajaj Hospital and Seth Nandlal Dhoot Hospital where he was given admission that he was in the habit of smoking and Gutkha chewing. Therefore his biopsy was conducted and there result was he was suffering from cancer. It was therefore contended that though the deceased had undergone medical examination by panel doctors of insurance company, the medical examination of general nature entirely depends on the information told by the proposer. However, the proposer did not disclose his habit of smoking and Gutkha chewing his further examination was not done. It was contention that as there was suppression of material fact his claim was rightly repudiated by the opponent insurance company by its letter dated 27.03.2010.

4. The District Forum after considering the evidence on record and hearing the parties has dismissed the complaint. It is held by the District Forum that, on 02.05.2008 the deceased insured was referred to the Seth Nandlal Dhoot Hospital where to the queries made by Dr. Tamhne regarding the history of disease, that he was habit of smoking and Gutkha chewing. However in the policy proposal dated 11.04.2008 he has given reply to the query regarding habits of alcohol or smoking tobacco etc. in negative. Thus on the basis of these evidence the District Forum has concluded that there was a suppression of material fact on the part of the complainant. Accordingly in keeping with these observations the complaint came to be dismissed by way of its impugned judgment and order.

5. Aggrieved by the said judgment and order the present appeal is filed in this Commission by the original complainant which came to be finally heard on 12.03.2015. Adv. Shri. S. T. Agrawal for the appellant/complainant and Adv. Shri. Bardapurkar for the respondent/opponents were present. Both counsel have already submitted written notes of arguments. We also heard them finally and matter was adjourned for judgment.

6. The learned counsel Shri. S. T. Agrawal for the complainant submitted that, the District Forum has failed to consider that the OPD card there is nowhere mention that deceased was having habit of smoking and Gutkha chewing etc. and in absence of specific date it cannot be concluded that before submitting the proposal deceased was having said habit. He also submitted that District Forum has failed to consider that Dr. Tamhne was examined and submitted in his cross- examination that only after biopsy the patient for the first time came to know that he was suffering from cancer. He thus submitted that there was no any suppression of material fact and District Forum has wrongly concluded the same. He therefore contended that the opponent insurance company has repudiated the claim on false ground. It is also his contention that the impugned judgment and order passed by the District Forum has resulted into mis-carriage of justice and therefore the same be quashed and set aside by allowing the appeal.

7. Per contra, the learned counsel Shri. K.M. Bardapurkar has made almost the same averments as made by the opponent insurance company in its written version, and contended that there is a clear suppression of material fact. Therefore the judgment and order passed by the District Forum requires to be confirmed by dismissing the appeal.

8. We have carefully gone through the record containing the copies of complaint, written version filed by the opponent insurance company, insurance policy, insurance proposal dated 11.04.2014, repudiation letter, the medical case papers regarding treatment of the life assured as given by the Seth Nandlal Dhoot Hospital, impugned judgment and order, appeal memo, written notes of argument as filed by both the parties and other documents etc.

9. The crux of the matter is whether there is suppression of material fact about the health of deceased insured on the basis of which the opponent insurance company has repudiated the claim of the complainant. In this connection we have to refer to the medical case papers of the Seth Nandlal Dhoot Hospital where the deceased insured was referred for the treatment on 02.05.2008. From the perusal 5 F.A. No. 48-12 of these case papers it reveals that the concerned doctor had made preliminary examination of deceased insured. That as per the history of the patient it reveal that, the deceased insured had admitted about his habit of smoking and Gutckha chewing. However, from the perusal of the insurance proposal as submitted by the deceased insured on 11.04.2008 the reply to the relevant question under clause-11 (H) (IV) i.e. Do you use or have you ever used tobacco in any form? The reply to this query as given is "NO". It is the contention of learned counsel Shri. Agrawal for the appellant/complainant that, there is no specific date given regarding the said habit of smoking and Gutkha chewing. However, the date is not material because, the word "habit" itself is sufficient to show that for a considerable period he is taking and smoking tobacco. The proposal form is dated 11.04.2008 and just after 20 days i.e. on 02.05.2008 he was referred to Seth Nandlal Dhoot Hospital. Therefore it cannot be concluded that after 11.04.2008 i.e. submission of the insurance proposal he started taking and smoking tobacco. The conclusion is therefore that he must be taking and smoking tobacco much prior to the filing of the insurance proposal.

10. Now let us refer to the cross examination of Dr. Chandrashekhar Tambe from Seth Nandlal Dhoot Hospital who had treated the deceased insured. In his cross examination he has stated that the deceased insured was affected by cancer and chewing or smoking tobacco can be one of the reasons of cancer. It can thus be concluded that, the habit of smoking and tobacco chewing is a material fact on the basis of which the opponent insurance company could have taken decision whether to issue the insurance policy to the deceased insured or not. However since the deceased insured did not disclose his said habit the policy was issued to him. It is a well settled principle that insurance policy is a contract between the insurer and the insured based on utmost trust. However, by giving false information or by misrepresenting the information the life assured had made a breach of the said trust and therefore the opponent insurance company cannot be made liable for the payment of insurance benefit under the said insurance policy.

11. In view of the aforesaid facts and observations we are therefore of the considered view that, the District Forum has rightly considered all these aspects and has rightly dismissed the complaint. We find no reason to interfere with the said impugned judgment and order. The appeal being devoid of any merit deserves to be dismissed. Hence the following order.

ORDER

1. The appeal is dismissed.

2. No order as to cost.

[HON'ABLE MR. S.M.SHEMBOLE] PRESIDING MEMBER [HON'ABLE MR. K.B.GAWALI] MEMBER Kalyankar