State Consumer Disputes Redressal Commission
The Branch Manager,Bajaj Allianz Life ... vs V.Muthuramalingam,Tirunelveli Dist. ... on 28 February, 2022
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.No.91/2014
(Against the order made in C.C.No.26/2013 dated 05.12.2013 on the file of the
District Forum, Tirunelveli.)
MONDAY, THE 28th DAY OF FEBRUARY 2022
The Branch Manager,
M/s.Bajaj Allianz Life Insurance
Company Limited,
Trivandrum Road,
Palayamkottai,
Tirunelveli 627 002. Appellant/1st Opposite Party
-Vs-
1. Mr.Muthuramaligam,
S/o Velayutham Nadar,
41, West Street, Shunmugapuram,
Mahadevankulam Post,
Tisayanvilai, Radhapuram Taluk,
Tirunelveli District - 627 657. 1st Respondent/1st Complainant
2. Mr.V.Muthuraj Jeyaraman,
S/o Velayutham Nadar,
41, West Street, Shunmugapuram,
Mahadevankulam Post,
Tisayanvilai, Radhapuram Taluk,
Tirunelveli District - 627 657. 2nd Respondent/2nd Complainant
3. The Divisional Manager,
Bajaj Allianz Life Insurance
Company Limited,
Policy Servicing Branch Office,
S.L.S.Towers, 2nd Floor,
No.68, Cherry Road,
Hasthampatty,
Salem - 636 007. 3rd Respondent/2nd opposite party
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4. The Regional Manager,
Bajaj Allianz Life Insurance
Company Limited,
Regd & Head Office,
GF Plaza, Airport Road,
Yerawada, Pune,
Maharashtra - 411 006. 4th Respondent/3rd Opposite Party
Counsel for Appellant/Opposite Party-1 : Mr.V.Sakthivel, Advocate.
Counsel for Respondents-1&2/Complainants-1&2 : M/s.Eddy Emboss, Advocate.
Counsel for Respondents-3&4/Opposite Parties-2&3 : Given-up.
This appeal coming before me for final hearing on 28.10.2021 and on perusing
the material records, this Commission made the following:-
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
1. This appeal has been filed by the appellant/1st opposite party under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the learned District Forum, Tirunelveli made in C.C.No.26/2013, dated 05.12.2013, allowing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redresssal Forum, Tirunelveli.
3. The 1st opposite party suffering by an order, directing them to pay the insured amount of Rs.5,00,000/- with interest at the rate of 6 % p.a. to the complainants from the date of the complaint and to pay a sum of Rs.5000/- towards compensation for the 3 damages and mental agony caused and to pay a sum of Rs.3000/- towards cost to the complainants in the hands of the learned District Consumer Disputes Redressal Forum, Tirunelveli (hereinafter in short "District Forum") have preferred this appeal before this Commission.
4. The case of the complaint is as follows:- The complainants submit that their father A.Velayutham Nadar, Son of Arupattu Moovar took Bajaj Allianz Regular Premium Policy from the first opposite party insurance company, situated at Trivandrum Road, Palayamkottai, Tirunelveli-2. The xerox copy of the insurance policy is produced herewith. The 2nd opposite party is the policy servicing office situated at Salem and 3 rd opposite party is the Registered and Head Office situated at Pune. The complainants submit that the policy No. is 0137204062 and the date of commencement of the policy is 28-10-2009. The Minimum Death Benefit of the said policy is Rs.5,00,000/-. The complainants' father has paid a sum of Rs.50,000/- towards the first instalment of the premium. The next premium date of the said policy is 28-10-2010. In the meanwhile, the complainants‟ father died on 09-10-2010. The xerox copy of the death certificate and the legal heir certificate are produced. The complainants submit that on the death of the Life Assured before the maturity date, the opposite parties insurance company is liable to pay the death benefit of Rs.5,00,000/- to the complainants. The complainants, after the death of their father, claimed the death benefit from the opposite parties. They have sent the original policy, death certificate, legal heir certificate, medical cause of death certificate obtained from the Doctor, who last attended to the life assured etc. But, the 2nd opposite party repudiated the claim of the complainants, by their letter 4 dated 05-01-2011. In the said letter, the 2nd opposite party directed the complainants to send their claim, to the Claim Review committee for reconsideration. The complainants sent a claim to the Review committee for reconsideration. The Claim Review committee also repudiated the said claim, by their letter dated 25-06-2011. The rejection of the claim is amounts to deficiency in service and breach of promise. All along the complainants approached the opposite parties, who in turn, driven them pillar to post, which caused mental agony and financial loss. The service on the part of the opposite parties is defective and deficient. The complainants are assessing the mental agony caused to them at Rs.50,000/-. The complainants are residing at Shunmugapuram, Tisayanvilai, Radhapuram Taluk , Tirunelveli District. The 1st opposite party is having their office at Palayamkottai , Tirunelveli - 2 , which are within the jurisdiction of the Honorable Forum. Hence, the complaint is preferred before this District Forum. The complainants herewith paid the court fee for the relief he seeks in the form of Demand Draft for the sum of Rs.400/-. It is therefore prayed to pass an order to direct the opposite parties to pay the insured sum of Rs. 5,00,000/- due under the said Bajaj Allianz Life Insurance Policy with interest at the rate of 12 % p.a. and to direct the opposite parties to pay a sum of Rs.50,000/- towards the damages and mental agony caused to the complainants and to direct the opposite parties to pay the cost of the proceedings to the complainants and to grant such order relief as this Honorable Forum may deem fit and proper in the circumstances of the case and thus render justice.
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5. Written version filed by the 1st opposite party is as follows:- The complainant had suppressed material information and approached District Forum with unclean hands and hence the complaint filed by the complainant deserves to be dismissed. The complainant's father had approached our insurance consultant and evinced interest to avail life insurance policy and accordingly he executed proposal form and also furnished identity and age proof documents. The answering opposite parties based on the information provided in the proposal form had provided the deceased an insurance policy under "Bajaj Allianz New Unit Gain" scheme and as per the terms of policy the deceased was provided with life cover of Rs.5,00,000/- and benefit term of and premium payment term of 20 years with premium amount of Rs.50,000/- under annual premium payment mode. The deceased policy holder voluntarily approached insurance consultant and evinced interest in availing insurance policy and accordingly submitted proposal form which contains all relevant details about the policyholder and his health and habits, his family history, his previous insurance history, his age and such other information since the said details would help the under writers of the opposite parties to assess the risk to be undertaken and final decision is arrived based on the information contained in the proposal form. Any individual who intends to cover under any insurance scheme submits Life Insurance proposal form to the insurer declaring about his present health and previous and present medication or any treatment availed and the said details forms basis for the underwriters to take a prudent decision about providing insurance cover. Therefore in Life Insurance Proposal Form virtually becomes the sole document for the opposite parties to decide whether to accept the risk on the 6 life of the proposer or not. It is further informed that subsequent to the proposal form the deceased life assured was subjected to routine medical check up before Dr.Venkataraman on 28-10-2009. The life assured was asked certain questions by the doctor before conducting medical check up in clause E of the Medial Examination Report. The life assured was asked in clause E (1 ) Have you ever been medically examined, received medical advise/treatment taken or hospitalized - the deceased answered no willfully suppressing the facts that he had taken treatment for multiple fistula in Ano and also suffering from Diabetes Mellitus with Pulmonary Tuberculosis. The doctor had based on the information provided by the life assured had conducted routine check up like Blood Pressure measurement and pulse measurement and orally examined to confirm whether the proposer was suffering from any diseases and accordingly submitted report without conducting any special examination to diagnose the disease suffered by the proposer. It is further informed that in point No.14 of the proposal form the proposed was asked questions from a to i
a) Any diseases and disorders of eye, ear, nose and throat ?
b) Any diseases and disorders of the nervous system such as but not limited to frequent dizziness, fainting, seizure, weak limbs ( temporary or permanent disability) abnormal sight, psychiatric disease, brain disease or neurological system diseases.
c) Any diseases and disorders of the respiratory system as but not limited to blood, in sputum tuberculosis, asthma, infected respiratory diseases or any respiratory system diseases including frequent nose bleeding fever and dysphonea? 7 And he had declared no for all the questions that he was not suffering from any kind of diseases which has been mentioned therein and never been hospitalized etc nor under any medication. The information provided by the policy holder in the proposal form, is the basis on which the complainant's father got admitted to the benefits of insurance cover. The deceased policy holder had paid first premium amount of Rs.50,000/- and the policy commenced from 28-10-2009. The next premium due under the policy was on 28-10-2009 and the policy holder died on 9-10-2009 day. The complainant had lodged claim with the opposite parties on 05-01-2011 and since the said claim being early claim the opposite parties as per their internal procedures had given details to M/s. A.S.N. Arya & Co. Investigators for investigating the claim. The said investigators had made detailed investigation and submitted report and as per the report of the deceased policy holder had history of consultation for multiple fistula in Ano and for diabetes mellitus on 08-07-2006 which are pre-proposal and the said details were suppressed. Further he had history of consultation for diabetes mellitus with pulmonary tuberculosis and took treatment on 14-02-2007. The said pre-proposal facts illness details had been suppressed by the deceased policy holder and policy was availed. Therefore citing the said reasons the claim lodged by the complainant was repudiated vide our letter dated 05-01-2011. In the said letter the complainant was also informed that in case if he is not satisfied with the decision, he can write to claims review committee for re consideration within 30 days from the date of receipt of the letter and the details of Claims Review Committee was also provided in the said letter. The complainant after receiving the decision of the opposite parties about repudiating the 8 claim had approached the claims review committee and the committee after perusal of the materials facts and evidence had not found anything substantial to reverse the earlier decision of repudiation of claim and accordingly vide their letter dated June 25, 2011 had intimated the complainant about the same. Life Insurance is a contract of UTMOST GOOD FAITH wherein the life assured/proposer is required to furnish full and complete and accurate information, which is within his knowledge. The life assured or the proponent is required to submit a proposal form and answer all questions pertaining to his/her health, income, source of income, habits, personal history and family history etc., and at the end of the proposal, the proponent signs statements/answers made/given by him in the said proposal declaring that the information provided by him is true and to his best of his knowledge. The information contained in the proposal form, forms basis to the insurance company to decide the eligibility as to whether a member can be granted insurance cover. Any suppression of material fact in the proposal form will constitute a breach of "DOCTRINE OF UTMOST GOOD FAITH" which is the essence of insurance contract. If any violation to this doctrine will render the insurance contract void and the insurer may not be liable under the contract. Thus if the Life Assured/proposer doesn't reveal full and correct information and subsequently the insurer comes to know about suppression of any material facts, the insurer is well within his rights to repudiate the claim under any insurance cover so granted on the basis of the wrong proposal and false Declaration. In the aforesaid it is humbly submitted that the complaint deserves to be dismissed on the principle of "Nullus commodum capere potest ex sua injuria propria", as no one can derive an advantage 9 from his own wrong and the deceased had suppressed his medical details and deceived the opposite party insurance company in issuing the insurance policy and hence the claim of the complainant has been rightly rejected based on the findings and documents collected by the respondents during the course of investigation. It is submitted that the insurance company is completely entitled by virtue of the policy terms, the provision of the insurance law to scrutinize the claim and based on finding decide the claim and wherein if it is noted that there is non disclosure, to repudiate the claim and which is just and proper and such repudiation cannot be termed as a deficiency in service or unfair trade practice. The complaint is made against the said right of the insurance company and hence bad in law and deserves to be dismissed. It is also submitted that the Answering Opposite party has got evidence at the time of claim scrutiny whereby it was noted that the deceased was suffering from pre - existing ailments and which was not disclosed in the proposal form at the time of availing the policy and hence the Answering Opposite party has rightly repudiated the claim on the basis of non disclosure and hence the present complaint is not maintainable event on facts and deserves to be dismissed in limine. Hence it is prayed that the District Forum may please take the version filed by the opposite parties on record and dismiss the complaint with compensatory costs to the opposite parties for defending the frivolous complaint.
6. The Learned District Forum, after taking into account of the evidences adduced by both parties, had held that the Life Insurance policy proposal form of the deceased life assured was accepted by the opposite party, company only after proposer of the 10 Policy was subjected to medical check-up by Medical Officers dated 28-10-2009. Though the cause of death of the policy holder may be due to diseases mentioned in the written version, the question of suppression of material facts about the diseases does not arise in this case. It is the duty of Insurance Company to conduct thorough medical test about the life assured while accepting the policy proposal form of the person concerned. The Forum is of the opinion that the act of opposite parties for repudiation of claim made by the complainant is caused deficiency in service on the part of the opposite parties and directing them to pay the insured amount of Rs.5,00,000/- with interest at the rate of 6 % p.a. to the complainants from the date of the complaint and to pay a sum of Rs.5000/- towards compensation for the damages and mental agony caused and to pay a sum of Rs.3000/- towards cost to the complainants.
7. Being aggrieved against that order the 1st opposite party challenged it by filing this appeal stating that the District Forum has failed to take into consideration that insurance is a contract entered between parties in "utmost good faith" and based on the principal of uberima fide i.e., a contract entered into on utmost good faith and suppression of any material information by insured would amount to breach of contract which would justify repudiation of claim by the insurance company since insurance obtained by concealing facts makes the insurance contract void abinitio. The deceased had informed in writing that he was never medically examined, never availed any treatment nor he was under treatment and hence routine pulse and Blood Pressure was monitored and certificate was issued without any special diagnosis and normal check-up cannot detect the medical conditions of the deceased. Suppression of such vital medical 11 facts that he is suffering from Multiple Fistula in Ano and also from Diabetes mellitus with pulmonary Tuberculosis, resulted in issuance erroneous medical certificate which was the basis of the under writers to accept the risk of the deceased policy holder. The deceased though fully aware about his health status had wantonly suppressed such information to defeat the purpose of medical examination and hence the policy availed by concealing the facts will result in void contract.
8. No additional evidences were adduced by both parties in this appeal before this Commission.
9. Point for consideration is:
Whether the order passed by the Learned District Forum, Tirunelveli in C.C.No.26/2013 dated 05.12.2013 is sustainable under law or not?
10. Point: The complainants‟ father A.Velayutham Nadar took Bajaj Allianz Regular Premium Policy from the first opposite party Insurance Company, Policy number is 0137204062 date of commencement of the policy is 28.10.2009. The Minimum Death Benefit of the said policy is Rs.5,00,000/-. The complainants father has paid a sum of Rs.50,000/- towards the first installment of the premium. The next premium date of the policy is 28.10.2010. In the meanwhile, the complainants‟ father died on 09.10.2010. The complainants claimed the death benefit from the opposite parties they have repudiated the claim for the reason for suppression of material fact in the proposal form.
11. The material facts is understood to mean any fact which would influence the judgement of a prudent insurer in fixing the premium or determining whether he would 12 like to accept the risk. In fact which goes to the root of the Contract of Insurance and has bearing on the risk involved would be "material". For determination of the question whether there is suppression of any material facts, it is necessary to examine the policy so as to verify whether the suppression relates to the facts which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent man. The burden of proof is only on the insurer to establish the circumstances and unless the insurer is able to do so, there is no question of the policy being voided on the ground of misstatement of facts.
12. The xerox copy of the policy document was marked as Ex.A1, the xerox copy of the death certificate is marked as Ex.A2. As per the death certificate the deceased was died in the hospital on 09.10.2010. Ex.A3 is the xerox copy of the legal heir certificate. Ex.A4 and Ex.A5 is the certificate of hospital treatment. As per the entries in Ex.A5 the deceased was admitted in the hospital on 03.10.2010 with the nature of ailments of Gluttal Swelling. The xerox copy of the proposal form was marked by the opposite party in Ex.B1 at the time of taking policy, the proposer A.Velayutham Nadar, age 53 years old, agriculture as per the contention raised by the opposite party the proposer is suppressed the material facts of his personal ailments.
13. The counsel for the appellant relying upon the following citations:-
(1) IV 2013 CPJ 225 - in the case Met Life India Insurance Company Limited -
Vs- Pragnaben Rajesh Batunge - National Consumer Disputes Redressal Commission - it is held that misstatement of the deceased violate basic the principal of Utmost goodfaith and justified the repudiation. The deceased life assured was suffered from 13 Multiple Fistula in Ano and also suffering from Diabetes Mellitus with Pulmonary Tuberculosi while submitting the proposal form the proposer has suppressed the details above ailments in the proposal form and answered the relevant columns in the proposal as „NO‟. and intentionally he suppressed the facts in the proposal form column No.14 (B) and answers „NO‟.
(2) 2008 ACJ (Vol.1) 456 SC - in the case of - P.C.Chako and another -Vs- Life Insurance Corporation of India and Others.
(3) 2011 (2) CPR 40 National Consumer Disputes Redressal Commission. (4) I 2011 CPJ 83 - National Consumer Disputes Redressal Commission. (5) IV (2013) CPJ 370 - National Consumer Disputes Redressal Commission. (6) IV (2013) CPJ 129 - National Consumer Disputes Redressal Commission.
14. The counsel for the respondents/complainants would contend that the insured was died during the subsisting of the policy as a legal heir of the deceased policy holder. The Proposal form of the life assured was accepted by the opposite party company only after proposer of the Policy was subjected to medical check-up by the medical officers. Therefore suppression of material fact does not arise. By relying upon the following citation - the Hon‟ble National Consumer Disputes Redressal Commission, had held the following reported cases - LIC of India -Vs- P.R.Sumanagala - in para 16 -
"We find that the opposite party, LIC of India has not filed any document or proof to show that the complainant had knowledge of his disease of diabetes and that he was being treated for the same. No record of treatment prior to the date of proposal form has been produced by the opposite party/petitioner. Here it is pertinent to note that 14 though the medical attendant's certificate mentions cause of death as diabetes and also mentions that he was diabetic for 15 years, it has been issued after two years of the date of the death of the deceased. The document does not support the contention of the petitioner that the insured was a diabetic for 15 years. People can live for months, even years, without knowing they have the disease and it‟s often discovered accidentally after routine medical check-ups or following screening tests for other conditions. Thus, we do not find any concealment made by the complainant".
15. Admittedly the opposite parties referred the claim of the complainants to their review committee for verification they have engaged private investigators M/s. A.S.N. Arya & Co. and go for investigating the claim. The opposite party mentioned about the engaged investigators in their written version the investigators are also said to be made detailed investigation and submitted report and as per the report the deceased policy holder had history for consultation for multiple fistula in Ano and for diabetes mellitus on 08.07.2006 i.e, three years prior to submission of proposal. The opposite parties have produced either investigation report, any certificate issued by the doctors where the deceased took treatment for his previous ailments and vital documents. When the duty is caused upon the opposite parties they have to prove the past ailments of the deceased person and produce documents by examining their witnesses are could be collected by the investigation arrived by them. No such evidence or document was produced by the opposite parties. In the absence of such evidence the plea of opposite parties that the insured had past ailment is inadmissible. It is not the case of the opposite parties that they are unable to collect information in their investigation and 15 they have not produced any such evidence to discharge their burden of their duty. It is the admitted case, the Private investigators engaged by them conduct thorough investigation but, the opposite party failed to produce any of the document to prove that thorough investigation was arranged by them. When any of the party failed to produce any vital document the adverse inference may be drawn against the party that the documents will not support their case.
16. Since, it is an admitted fact by the insurance company that before issuing the policy deceased has been subjected to medical examination by their medical officer or panel of medical experts who found the deceased in perfect health, they cannot be allowed to take the plea now after the death of the policy holder that he had concealed the pre-existing diseases; or that he was guilty of suppression of material facts. If so, what was the purpose of subjecting him to medical examination? Their plea of pre medical check-up was influenced by the wrong information supplied does not absolve them of their liability. A duty is cast upon the insurance company to examine the concerned doctor, who treated the policy holder for the alleged ailments no such step has been taken by the opposite party in examining the concerned doctor to know regarding the health condition of the policy holder. Mere filing a some hospital records will not suffice to show that the policy holder suffered with the ailments at the time of filing proposal form for taking insurance policy. In the absence of specific and cogent evidence, it is unable to hold that the policy holder suffered with ailments of any disease and this was in his knowledge and he suppressed. Those facts at the time of 16 filing the proposal form to attract the Provisions of Section 45 of Insurance Act. The opposite party insurance company cannot escape from the liability.
17. The District Forum also had held by considering all those aspects that the Life Insurance Policy proposal form of the deceased life assured was accepted by the opposite party only after proposer of the policy was subjected to medical check-up by the medical officers. It is the duty of the Insurance Company to conduct thorough medical test about the life assured while accepting the policy proposal form of the person concerned. Therefore, the order passed by the District Forum is sustainable under law and answered accordingly for the point for consideration.
18. In the result, the appeal is dismissed by confirming the order of the learned District Forum, Tirunelveli made in C.C.No.26/2013, dated 05.12.2013. There shall be no order as to cost in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 28th day of February 2022.
Sd/-xxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.